i United States Environmental Protection Agency

Amended Determination

Executive Summary

On April 14, 2010, the United States District Cour t, Southern District of Florida, issued an order (the 2010 Order) dire cting specific steps that the United States Environmental Protection Agency (USEPA) and the Florida Depa rtment of Environmen tal Protection (FDEP)

must take to correct deficiencies in USEP A’s December 2009 Determination and to carry out USEPA’s and FDEP’s mandatory duties under th e Clean Water Act (CWA) to achieve water quality standards in the Evergl ades Protection Area. The 2010 Order directed USEPA to issue an Amended Determination no later than September 3, 2010.

This document (the Amended Determination) addresses the requirements, as outlined on pages 44-47 of the 2010 Order, lays out the step s that the State must complete, and where applicable, specifically describes USEPA’s actio ns if the State fails to respond. USEPA’s objective in issuing this Amended Determination is to satisfy the Court’ s directives in the 2010 Order, consistent with the CWA and implemen ting regulations. This Amended Determination will ensure that the water quality entering the Ev erglades Protection Area from the Everglades Agricultural Area (EAA) and C-139 Basin achieve the narrative a nd numeric criteria, by meeting a scientifically sound Water Qual ity Based Effluent Limit (WQBEL) in permits, in the shortest time possible. Attachment A is an overview map showing the primary featur es described in this

Amended Determination.

In Sections I. and II. of this Amended De termination, USEPA, strikes the language of its

2009 Determination that the Court found invalid and directs the State to co rrect the deficiencies in the State’s Amended Everglades Forever Ac t (Amended EFA) and the Phosphorus Rule that have been invalidated by the 2010 Order. In the event the State fails to timely correct the deficiencies in the Amended EFA and Phosphorus Rule, USEPA will provide timely notice and promulgate revised standards pursuant to 33 U.S.C. § 1313(c).

In Section III.A., USEPA is notifying FDEP that the narrative and numeric nutrient criteria in the State’s water quality standards are not being met for th e Everglades Protection Area. Using the most recent information availabl e, data indicate that while levels of total phosphorus (TP) at inflows to the Arthur R. Marshall Loxaha tchee National Wildlife Refuge (Refuge), Water Conservation Area (WCA) 2, a nd WCA 3 have decreased since the 1980s, all parts of the Everglades Prot ection Area do not yet meet the nutrient criteria and further reductions of TP in the inflows to the Everglades must be achieved if further degradation is to be prevented. USEPA summarizes pertinent analyses of historical data fr om several sources to document this conclusion, includ ing water quality data , soil phosphorus analyses, and vegetation changes.

In addition, in Section III.B., this Amende d Determination describes a two-part WQBEL as a critical component of an enforceable fram ework to ensure that the Stormwater Treatment Area (STA) discharges will not cause exceedances of the numeric criterion within the Everglades Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 1 of
57ii Protection Area. The USEPA has derived a WQBEL to be implemented in permits for the STA discharges into the Everglades Prot ection Area. The WQ BEL provides that:

TP concentrations in the disc harge may not exceed either:

- 10 ppb as an annual geometric mean (GM) in more than two consecutive years; or - 18 ppb as an annual flow-weighted mean (FWM).

Compliance with both parts of the WQBEL is necessary to assure that the STA discharges will not cause an exceedance of the long-term cr iterion of 10 ppb. USEPA calculated the WQBEL using a scientifically-based st atistical approach in accordance with USEPA procedures. Expressing the WQBEL in this manner ensures the total phosphorus (TP) concentration and flow discharged from the STA to vary within acceptabl e limits while ensuring that the discharge will not cause an exceedance of the ambient water qu ality criterion of 10 ppb as a long-term GM in the Everglades marsh. Expressing one compone nt of the WQBEL as a FWM concentration considers high flow loading events to the Ever glades Protection Area and is more appropriate than relying only on a limit expressed as a GM concentration. Should FDEP propose an alternative approach to establis hing a WQBEL, USEPA will evaluate its scientific rigor to ensure it appropriately implements the water quality criterion in accordance with the Clean Water Act (CWA) and its implementing regulations.

In Section III.C., USEPA is providing clear, explicit, and comprehens ive instructions to

the State of Florida on the manner and met hod to obtain the WQBEL, including specific milestones. In developing the defined actions and timetables for achieving the WQBEL for each STA, USEPA conducted extensive modeling and analysis, working with well-recognized experts in wetland treatment systems that have extensiv e experience working on Everglades restoration. Based on this analysis, the total expected treatmen t area expansion in the Everglades Agricultural Area needed to meet the WQBEL is approximately 42,000 acres.

The SFWMD recently announced the planned purchase of 8,900 acres of agricultural land in the Eastern Flow Path and 17,900 acres of citrus groves in the Western Flow Path 1 from U.S. Sugar Corporation. These purchases are to be finalized in Octobe r 2010. This pending land purchase, in addition to lands already in state ownershi p (the EAA-A1 and EAA-A2 compartments), provides substantial acreage fo r attaining the WQBEL indentified in this

Amended Determination.

In developing the defined actions and timet ables, USEPA assumed that no additional source controls will be undertaken. However, US EPA believes that, in addition to the remedies outlined in this Amended Determination, the State should pursue further source controls through improved on-farm best management practices (BMP s) and/or sub-basin tr eatment approaches as required by the Amended EFA. Reducing the con centration and load of TP entering the STAs

1 USEPA refers to three distinct flow paths for runoff water from the EAA and the C-139 Basin. These are the Eastern Flow Path that drains the urban and eastern basins of the EAA through STA 1E and STA 1W to the Refuge;

the Central Flow Path that drains the central basins of the EAA through STA 2/Compartment B and STA 3/4 to WCA 2A and 3A; and the Western Flow Path that drains the C-139 Basin and the western part of the EAA through the STA 5, STA 6, and Compartment C complex into WCA 3A. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 2 of
57iii through improved source control could further op timize the performance of the STAs and could

reduce the land area needed to treat the increased flows anticipated in the future as Everglades restoration proceeds.

There may be possible alte rnative remedies to those proposed by USEPA based on various combinations of improved or expande d source or flow controls and different configurations of STAs and fl ow equalization basins (FEBs). 2 Given that further refined modeling may identify remedies that are capab le of removing TP in order to achieve the WQBEL, USEPA believes it is appropriate to provi de an opportunity to the South Florida Water Management District (SFWMD), as the permittee, to provide USEPA and FDEP technical input

on remedies identified in the Amended Determ ination. Therefore, USEPA is offering SFWMD 60 days to submit to USEPA and FDEP any altern ative remedies that will achieve the WQBEL as soon or sooner than the remedies identified by USEPA. Any such proposal must be submitted to USEPA and FDEP by November 2, 2010. The proposal must be accompanied by a schedule and specific milestones to ensure timely implem entation. USEPA will evaluate any alternatives presented and consider incorporating a revised approach in subsequent permitting, compliance, and/or enforcement proceedings. If USEPA fi nds the alternative(s) to be acceptable and consistent with the expectations outlined in this Amended Determination, USEPA expects to respond to any alternative remedy proposal prov ided by SFWMD, with a supplement to the Amended Determination, within 45 days of receipt.

Attachment B summarizes for each flow path the number of additional acres of STA or FEBs that will provide the level of treatment needed to achieve the WQBEL. Attachment B also provides the date that the STAs are projected to be discharging at levels consistent with the WQBEL based on the specified remedy.

The Amended Determination describes specific activities and dates for meeting these milestones along with critical assumptions and factors unique to each flow path. There are several key milestones that are generally applicable including:

1. Completing land acquis ition (if necessary);

2. Completing detailed designs for STAs or FEBs;

3. Acquiring all necessary federal and state permits;

4. Completing construction; and

5. Discharging consistent with the WQBEL.

Attachment H and Section III.C.3.(b) identify a potential option for treating water in the Eastern Flow Path that involves building and oper ating a storage reservoir in the C51 basin. The

2 A flow-equalization basin (FEB) is a water storage area that can provid e several benefits when used in combination with a downstream STA: provide some initial TP removal; capture peak flows during the wet season thereby reducing spikes in flow that ca n overload STAs and adversely affect performance; and allow water captured during the wet season to be metered out to the STA into the dry season to keep the STA from drying out. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 3 of
57iv State did not provide adequate assurance to USEPA of the succe ss of this option prior to the

release of this Amended Determination. The US EPA sees benefits with this potential option including: an increase in water flow to the Ever glades Protection Area; better quality of water to the Refuge; fewer harmful fresh water diversions to the Lake Worth estuary; and meeting the WQBEL as early as 2017. The State is encouraged to submit adequate assurance of this option

to the USEPA in its alternative remedies submittal on or before November 2, 2010.

In Section IV of this document, USEPA di rects FDEP to take the following actions related to monitoring TP in the Everglades Protection Area:

1. Rectify deficiencies in the current monitori ng network for measuri ng the achievement of the total phosphorus water quality criteri on in the Everglades Protection Area; and

2. Enhance monitoring and reporting requirement s, ensuring that water quality, soil TP concentrations, and changes in vegetation ar e tracked and evaluated to fully assess the individual and cumulative impacts of discharg es into the Everglades Protection Area, and to monitor progress toward achieving th e ambient water quality criterion for TP.

In Section V.A, USEPA directs FDEP to conform NPDES permits for all STAs consistent with specific instructi ons which USEPA provides regarding:

1. Removing all reference to the non-conformi ng elements of the Long Term Plan, the moderating provisions and the exte nded compliance schedules;

2. Incorporating the WQBEL, including added provisions for providing early warning of possible non-compliance with the WQBEL and reporting excess TP loads if the WQBEL is not met;

3. Updating various items that must be incl uded in each Annual Report, as well as, the pollution prevention and operationa l plans for each STA; and

4. Requiring water quality, vegetation, and sedi ment transect monitoring at locations downstream of the discharge points and within the Everglades marsh to determine the extent of phosphorus intrusion resulting from the STA discharges and to determine if these discharges cause or contribute to violations of water quality standards.

The 2010 Order directed USEPA to immediately initiate and carry ou t its authority to withdraw approval of the State program pertaining to issuance of any new NPDES permits for discharges into, or within, the Everglades Prot ection Area, or for any future modifications to existing NPDES permits (including through State of Florida Administrative Orders). However, as described in Section V.B., on July 29, 2010, USEPA filed a Rule 60(b) Motion for Modification of Injunction request ing that the Court amend the pr ovision in the 2010 Order that requires USEPA to initiate and carry out par tial withdrawal of Florida’s NPDES permitting authority and allow the substitution of a new injunctive provision that would apply after the existing permits have been conformed pursuant to the Court’s Order. On August 2, 2010, the Court issued an order scheduling oral ar gument on USEPA’s motion for October 7, 2010. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 4 of
57v Because the Court has taken USEPA’s motion under consideration and USEPA will not know the Court’s disposition of its Rule 60(b) Motion prior to issuance of its Amended Determination,

and because USEPA believes it lacks author ity under the CWA to do a partial program withdrawal, it has not commenced initiation of withdrawal of FDEP’s NPDES permitting program for the Everglades Protection Area. In stead, it awaits a ruling by the Court on the pending Rule 60(b) motion.

Section VI explains how all of the components of this Amended Determination provide an enforceable framework for ensuring compliance with the CWA and its a pplicable regulations.

This includes:

1. Requiring the State to amend its water qua lity standards to bring them into compliance with the CWA;

2. Conforming all NPDES and EFA permits for discharges from the STAs into the Everglades Protection Area to include a WQ BEL to meet water quality standards;

3. Providing clear, specific, and comprehensive instructions to the State on actions to ensure compliance with the WQBEL;

4. Exercising USEPA’s full CWA enforcement au thorities to ensure compliance with the WQBELs; and

5. Exercising USEPA’s CWA permitting oversight authority to ensure all future permits comply with the CWA and implementing regulations.

Section VII of the document discusses the im portant relationship between this Amended Determination and actions being undertaken by the District Court in the case pending before the Honorable Federico A. Moreno, US v. SFMWD, Case No. 88-CV-1886-FAM (S.D. Fla.). Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 5 of
57vi United States Environmental Protection Agency

Amended Determination

Table of Contents

Executive Summary i

Introduction 1

Amended Determination 2

I. Revisions to USEPA’s 2009 Determination 4 II. Directions for Correcting Deficiencies to Florida’s Phosphorus Rule and the Amended Everglades Forever Act 6 III. Manner and Method to Obtain Enforceable WQBEL

Within Time Certain 7

A. Non–Attainment of Narrative and Numeric Nutrient Criteria Throughout Ever glades Protection Area 7 B. WQBEL for the STAs That Implements the Numeric Water Quality Criterion of 10 ppb as a Long-Te rm Geometric Mean 10

C. Source Controls and St ormwater Treatment Area Expansions to Meet WQBEL 14

IV. Measure and Submit Annual Re ports on Cumulative Impacts until Water Quality Standards Attained 41

V. NPDES and EFA Permits 44 VI. Enforceable Framework for Ensuring Compliance with the CWA and Applicable Regulations 48 VII. Relationship to U.S. v. SFWMD, Case No. 88-CV-1886-FAM (S.D. FLA.) 49

XIII. Conclusion 51

Attachments Attachment A- Overview Map from 2010 South Florida Environmental Report (Overlain with Approximate A1 and A2 Locations) Attachment B- Summary of Remedies for Mee ting WQBEL at STA Discharges into the Everglades Protection Area

Attachment C- Milestones and Activiti es by Month/Year for Meeting WQBEL

at Stormwater Treatment Areas

Attachment D- USEPA’s 2009 Determ ination with Strikeout Text Attachment E- Revisions to Phosphorus Rule per Attachment 2 of 60(b) Motion

Attachment F- Revisions to Amended Ever glades Forever Act per Attachment 1 of 60(b) Motion Attachment G- WQBEL T echnical Support Document Attachment H- Assumptions and Modeling Report

Attachment I- Conformed STA NPDES and EFA Permits

Attachment J- Rationale for Conf ormed STA NPDES and EFA Permits Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 6 of
571 Introduction

In its April 14, 2010 Order (2010 Order), the Un ited States District Court, Southern District of Florida, directed USEPA and FDEP to carry out specific steps to meet their mandatory duties to achieve water quality st andards in the Everglades Protection Area. 3
Miccosukee Tribe of Indians of Florida; and Frie nds of the Everglades v. United States of America, et al. , No. 04-21488-GOLD/MCALILEY (and conso lidated cases). This document responds to the 2010 Order.

In the 2008 Order, the Court granted partial summary judgment for the plaintiffs and partial summary judgment for the defendants. This 2008 Order decided consolidated cases brought against the USEPA by the Miccosukee Trib e of Indians of Flor ida (Tribe) and the Friends of the Everglades (FOE). Both the Tribe and FOE sought review of USEPA’s determination that the Everglades Forever Ac t Amendments (Amended EFA) were not new or revised water quality standards subject to review under section 303(c) of the Clean Water Act (CWA) and sought to have the Court order USEPA to disapprove those amendments. The Tribe and FOE also alleged that USEPA’s actions a pproving parts of the Phosphorus Rule (the Phosphorus Rule or TP Rule) as new or revi sed water quality standard s were arbitrary and capricious. Lastly, the Tribe and FOE sought revi ew of USEPA’s determin ation that other parts of the Phosphorus Rule were not new or revised water quality standards.

In its 2008 Order, the Court determined th e Amended EFA were new or revised water quality standards and ordered USEPA “to comply with its duty under th e CWA to approve or disapprove those changes consistent with the findings and conclu sions” set forth in the Court’s Order. Order at 99 (para. 1). The Court a ffirmed USEPA’s determinations approving the 10 parts per billion (ppb) nume ric criterion for phosphorus and the implementation methodology (the four-part test) as meeting the requirements of the CWA. Order at 99 (para. 6). The Court

concluded that subs ections (4)(d)(2)(c) 4 , (5)(b)(3), 5(d), and 6 of the Phosphorus Rule do not meet the requirements of the CWA and declared those subsections invalid. The Court set aside USEPA’s determinations approving these subsections . Order at 100 (para. 6). The Court also

set aside USEPA’s determinations that subsections (1), (2), and (5)(a)-(c) were not changes to water quality standards and orde red USEPA on remand “to comply with its duty under the CWA to approve or disapprove those changes in a manner consistent with the findings and

conclusions” of the Court. Order at 100 (para. 8).

3 This matter has a long history and over the years USEPA has issued a number of determinations that provide additional background on the historical actions that have preceded this amended determination. Footnote 44 of the July 2008 Order summarizes four of USEPA’s recent determinations (January 24, 2005, July 27, 2005, May 8, 2006, and May 31, 2006). USEPA determinations from November 5, 2003 and September 15, 1999 contain additional background information.

4 Subsection (4)(d)(2)(c) is the fourth prong of the four-part test. USEPA raised this issue in the 2009 Determination, noting that the Court’s focus appears to be the sentence in the paragrap h that follows the four-part test provision: “If these limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (6) belo w are met.” See 2009 Determination, page 10, referencing

fn 1. Throughout both the 2008 Order and 2010 Order, the Court refers to this provision as the “no-action” or “escape clause.” Order at 82, 85, and 97. Therefore, for purposes of this amended determination, reference to Subsection (4)(d)(2)(c) and Subsection (4)(d)(2) refer to the sentence quoted in this footnote and not the fourth prong of the four-part test. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 7 of
572 In response to the Court’s 2008 Order, USEP A issued its Determination on December 3, 2009. USEPA’s 2009 Determination disapproved the following parts of the Amended EFA: subsection (3), including paragraphs (3)(b), (3)( c), (3)(d), and (3)(e), as well as subparagraphs (4)(e)(2), (4)(e)(3), and subsection (10), and othe r provisions relating to the Long Term Plan or modification to the compliance date. USEPA also disapproved the following parts of the Phosphorus Rule: subsections (1), (2), (5)(a-d), and (6). Alth ough the Court in its 2010 Order found that USEPA’s disapprovals of those provisions were consistent with the requirements of the 2008 Order, several parts of USEPA’s 2009 Dete rmination were stricken by the Court in its

2010 Order and those are discus sed further in Section I.

Amended Determination

In the 2010 Order, the Court directed USEPA to issue an Amended Determination no later than September 3, 2010. The 2010 Order contai ned specific directives to USEPA on steps

that need to be taken and included in the Am ended Determination. The remainder of this document addresses the requirements of the 2010 Orde r and lays out the step s that the State of Florida must complete and, where applicable, spec ifically describes USEPA’s actions if the State fails to respond accordingly. The Court’ s 2010 Order required the following:

1. “All provisions of the 2009 Determination which have been stricken by this Order shall be

excluded from the Amended Determination.” [2010 Order, page 47, paragraph 8]

2. “On remand, the [US]EPA shall issue an Amended Determination (‘Amended Determination’) not later than Friday, September 3, 2010 that meets the requirements of this paragraph and the paragraphs that follow. The Amended Determination shall specifically direct the State of Florida to co rrect the deficiencies in the Amended EFA and the Phosphorus Rule that have been i nvalidated in a manner consistent with Attachments B

and C of this Order. The USEPA shall require the State of Florida to commence and complete rule-making for the Phosphorus Rule within 120 days from the date of the Amended Determination and shall require amendments to the Amended EFA to be enacted by July 1, 2011. In the event th e State of Florida fails to timely act, the [US]EPA shall provide timely notice, and the [US]EPA Administ rator ‘shall promulgate such standard[s]’ pursuant to 33 U.S.C. § 1313(c) (Emphasis in or iginal).” [2010 Order, page 44, paragraph 1]

3. “The [US]EPA Administrator, through the Amended Determination, shall notify the State

of Florida that it is out-of -compliance with the narrative and nutrient standards for the Everglades Protection Area. The Amended Dete rmination shall provide clear, specific and comprehensive instructions to the State of Florida on the manner and method to obtain enforceable [water quality-based effluent lim its] WQBELs within a time certain, consistent with the Clean Water Act and its implemen ting regulations, the Summary Judgment Order

and this Order. The Amended Determinati on shall specify without equivocation that compliance must occur in accordance with specific milestones to be established in the

Amended Determination that provides an enforceable framework for ensuring compliance with the CWA and its applicable regulati ons. Furthermore, it shall require the State of Florida to measure on a yearly basis the cumulative impacts and effects of Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 8 of
573 phosphorus intrusion beyond the 10 ppb standard w ithin the Everglades Protection Area until such time as full compliance with the 10 ppb stan dard is achieved. I underscore that the [US]EPA must establish specific milestones to ensure that the State of Florida does not continue to ignore, and improperly exte nd, the compliance deadline for meeting the phosphorus narrative and numeric cr iterion in the Everglades Pr otection Area (Emphasis in original).” [2010 Order, page 45, paragraph 2]

4. “The [US]EPA, in its Amended Determination, shall direct the State of Florida to conform all NPDES permits for STAs 1, 2, 3, 4, 5 and 6 – along with the accompanying Administrative Orders and Everglades Forever Act permits listed in Attachment A to this Order – to the Clean Water Act, the Summary Judgment Order and th is Order so as to

eliminate all references to the non-confor ming elements of the Long-Term Plan, the moderating provisions and the extended comp liance schedule through 2016, and to require compliance with the phosphorus narrative and nume ric criterion in a manner consistent with the Clean Water Act and the forthcoming Amende d Determination. All such permits shall be conformed not later than sixty (6 0) days of the date of the Amended Determination and shall be promptly filed with this Court (Emphasis in original).” [2010 Order, page 45, paragraph 3]

5. “On remand, the [US]EPA, in its Amended De termination, shall imme diately initiate and carry out its authority under Section IX of the Memorandum of Understanding to withdraw approval of the State program pertaining to the issuance of any new NPDES permits for discharges into, or within, the Everglades Prot ection Area, or for any further modifications to existing NPDES permits (including through State of Florida Administra tive Orders) – other than to carry out the requirem ents of Paragraph 3 [of the 2010 Order], above – until such time as the State of Florida is in full complia nce with the Clean Water Act, its implementing regulations, the Summary Judgment Order, th is Order, and the forthcoming Amended [US]EPA Determination.” [2010 Or der, page 46, paragraph 4]

6. “Other than to carry out the requirements of Paragraph 3 [of the 2010 Order], above, the FDEP is enjoined from issuing any new NP DES permits, or modifications to existing NPDES permits - through State of Florida Ad ministrative Orders, Everglades Forever Act permits or otherwise - for STAs that discha rge into, or within, th e Everglades Protection

Area until such time as the State of Florida is found by th e [US]EPA and this Court to be in full compliance with the Clean Water Act, its implementing regulations, the Summary Judgment Order, and this Order. All new Admi nistrative Orders and Everglades Forever Act permits issued under the laws of the State of Florida must conform to, and comply with, the Clean Water Act, its implementing regulations, the Summary Judgment Order, and this Order and the forthcoming Amended [US]EPA Determ ination (Emphasis in original.)” [2010 Order, page 46, paragraph 5]

The remainder of this Amended Determination responds to items 1 through 6 listed

above. Item 1 is addressed in Section I. Item 2 is addressed in detail within Section II. Item 3 is covered in Sections III and IV. Items 4, 5, and 6 are addressed by Section V. Sections VI and VII describe in further detail USEPA’s expectat ions with regard to the implementation of the Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 9 of
574 enforceable framework and the relationship to th e case pending before the Honorable Federico A. Moreno, US v. SFMWD, Case No. 88-CV-1886- FAM (S.D. Fla.) (Consent Decree Case). 5

This Amended Determination also describes an “enforceable framework” to which the

Court referred in the 2008 and 2010 Orders. In a ddition to addressing the factors discussed in the 1999 Determination (which the Court refere nces in both its 2008 and 2010 Orders), this Amended Determination describes additional measures necessary for an enforceable framework: the specific actions and timetables milestones that will need to be carried out to achieve the water quality based effluent limit (WQBEL), described in Section III.B., which is designed to meet the narrative and numeric water qualit y criteria for total phosphorus in the Everglades Protection

Area.

The objective of this Amended Determination is to satisfy the Court’s directives in the 2010 Order, consistent with the CWA and implemen ting regulations, and to ensure that the water quality entering the Everglades Protection Area from the Everglades Agricultural Area (EAA)

and C-139 Basin will achieve the narrative and nu meric criteria, by mee ting a scientifically sound WQBEL, in the shortest time possible.

I. Revisions to USEPA’s 2009 Determination

As part of this Amended Determination, US EPA is making specific revisions to its 2009

Determination consistent with the Court’s 2010 Orde r. Pursuant to the Or der, “[a]ll provisions

of the 2009 Determination which have been strick en by this Order shall be excluded from the Amended Determination.” The following langua ge (shown as stricken text) from the 2009 Determination is removed and no longer valid. Pursuant to its author ity under CWA 303(c)(3), USEPA has determined that various aspects of the revised standards in the Amended EFA and Phosphorus Rule are not consiste nt with the CWA and, therefore, such provisions are invalid.

The 2009 Determination is revised accordin gly. Attachment D is a copy of the 2009

Determination which shows the stricken text. The remainder of the 2009 Determination remains

in effect.

Item 3 on page 2 of the December 3, 2009 Determination is revised as follows:

3. Florida Department of Environmental Protec tion (FDEP ) is enjoined from issuing any permits for discharges in, or within, the Ev erglades Protection Area (EPA) under subsection (5)(b)(3), 5(d) and (6) of the Phosphorus Ru le, and the “no action” provision of subsection (4)(d)(2)(c). US EPA understands that FDEP is complyi ng with this provision of the Order. FDEP has not issued any permits ut ilizing these provi sions of the Phos phorus Rule and has indicated they do not plan to.

The Court’s rationale for striki ng the last two sentences of item 3 can be found on pages 22-24

and 35 of the 2010 Order. The Court found that FD EP had issued permits utilizing invalidated provisions of the Phosphorus Rule. The Court found that FDEP included compliance schedules

5 The 2010 Order discussed the relationship between the Consent Decree Case and the consolidated cases filed by the Tribe and FOE before Judge Gold. 2010 Order at 29. This is discussed in more detail below in Section VII. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 10 of
575 that were blanket variances issu ed without following the procedur e for use attainability analysis (UAA) required for variances under the CW A and its implementing regulations.

The second footnote on page 2 of the December 3, 2009 Determination is revised as follows:

FDEP issued National Pollutant Discharge Elimination System (NPDES) permits for Stormwater Treatment Areas (STA) 2, 5, a nd 6 on September 4, 2007, while this case was pending. Those permits included water qua lity based effluent limits (“WQBELs”) , compliance schedules, and interim limits. The permits did not include moderating provisions or variances. This approach is consistent with the Court’s statements

concern ing “authorizing compliance schedules in individual permits on a case by case basis.” (Order at 45

– 46). The permits were not challenged by any parties and became effective at the end of the notice period.

Several locations in the 2010 Order address the C ourt’s rationale for striking most of the second footnote on page 2. Pages 18-19 refer to USEP A’s failure to recognize the Administrative Orders (AOs) issued by the State in 2009 as inco nsistent with the 2008 Order. Pages 22-23 hold that USEPA’s conclusion that State permits did not include moderating provi sions or variances is

incorrect. Since the Court found that the AOs included moderating provisions or variances, under the CWA, a UAA is required. Furthermor e, as indicated on page 24, since “no use attainability analyses have been conducted,” the conclusi on that the approach is consistent with the 2008 Order is no longer valid.

The last paragraph on page 10 of the December 3, 2009 Determination is revised as follows:

Lastly, the provisions that USEPA is disappr oving today had the e ffect of being less protective than the numeric cr iterion. The provisions that USEPA is disapproving today and the provisions that the Court declared invalid are no longer in effect for CWA purposes. The USEPA approved criterion and implementing methodology remain in effect for CWA purposes. Because the crit erion and implementing methodology are fully protective of the designated use, there is no need for the state of Florida or US EPA to take any further action pursuan t to CWA section 303(c).

The Court’s rationale for striki ng the last sentence of page 10 can be found on page 15 of the 2010 Order. Page 15 describes US EPA’s failure to complete an analysis of the effect of Florida’s non-compliance as well as a lack of fu rther specific direction to the State regarding necessary actions to ensure an enforceable framework. The stricken language of the 2009 Determination is no longer valid and this Amen ded Determination is intended to address those specific requirements for the State and USEPA. The direction that USEPA is providing to the State in this section (section I) for amending its water quality standards is in accordance with the Court's order and pursuant to USEPA's authorit y under section 303(c) of the CWA. Under CWA section 303(c), revisions made by the State in re sponse to this Amended Determination must be submitted to USEPA for review and approval. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 11 of
576 II. Directions for Correcting Deficiencies in Florida's Phosphorus Rule and the Amended Everglades Forever Act

In its 2010 Order, the Court specified the change s to be made by FDEP to the Phosphorus Rule [see Attachment C, April 2010 Order]. US EPA filed a Rule 60(b) Motion asking the Court to modify its injunction involving specific change s the Court had ordered. Pending the outcome of the Rule 60(b) process, Attachment E reflec ts the changes USEPA asked the Court to make. If the Court denies this portion of the 60(b) motion, USEPA will take the appropriate actions to modify Attachment E. As required by the C ourt (Order at 44 – 45) and based on USEPA’s authority under CWA section 303(c)(3), USEPA directs the FDEP to revise 62-302.540, Florida Administrative Code (F.A.C.) [Water Quality Standards for P hosphorus Within the Everglades Protection Area] to be consistent with Attachment E of this Am ended Determination. FDEP is directed to complete its rule making by January 1, 2011. If FDEP has not finalized revisions to the Phosphorus Rule consistent with Attachment E by this date, USEPA will initiate rulemaking to promulgate the necessary revisions pursuant to CWA section 303(c) consistent with the Court’s 2010 Order (at 44 - 45).

As required by the Court (Order at 44 – 45) and based on USEPA’s authority under CWA section 303(c)(3), USEPA also directs the State of Florida to correct defici encies in the Amended

EFA consistent with Attachment F of this Amended Determination. As noted above, USEPA filed a Rule 60(b) motion asking the Court to modify its injunc tion concerning the language it struck in the Amended EFA. Pending the outcome of the Rule 60(b) process, Attachment F reflects the changes USEPA asked the Court to ma ke. If the Court deni es this portion of the 60(b) motion, USEPA will take the appropriate actio ns to modify Attachment F. The State of

Florida is directed to enact amendments to the Amended EFA by July 1, 2011. If the State of

Florida fails to act in a timel y manner, USEPA will initiate ru lemaking to promulgate revised standards pursuant to CWA sec tion 303(c) to be consistent w ith the Court’s 2010 Order (at 44 - 45). In its 2010 Order, the Court specified the ch anges to be made by the State of Florida to the Amended EFA [see Attachment B, April 2010 Order]. 6

The direction that USEPA is providing to th e State in this section (section II) for amending its water quality standards is in accord ance with the Court's or der and pursuant to the USEPA's authority under section 303(c) of th e CWA. Under CWA section 303(c), revisions made by the State in response to this Amended Determination must be submitted to USEPA for review and approval.

6 In the recent Rule 60(b) motion, USEPA, among other things, asked the Court to modify its injunction involving certain language the Court stru ck from the Amended EFA in subsection 4(a) which could have the unintended effect of limiting the use of the ad valorem taxes for optimizing, operating and maintaining the Everglades Construction Project (ECP) which includes the existing STAs. An impor tant aspect of the enfor ceable mechanism that USEPA

considered in its 1999 Determination was the identification of funding sources to pay for the restoration projects. The inability to use these taxes for the ECP could limit the ability of the State to fund projects as described in this

Amended Determination. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 12 of
577 III. Manner and Method to Obtain Enforceable WQBEL Within Time Certain

A. Non–Attainment of Narrative and Numeric Nutrient Criteria Throughout Everglades

Protection Area

Pursuant to the Court’s Order (2010 Order, p 45), USEPA is notifying the FDEP that the

narrative and numeric nutrient criteria 7 are not being met for the Everglades Protection Area. 8
Using the most recent report published by the South Florida Water Ma nagement District (SFWMD) and the FDEP, the 2010 South Florida Environmental Report (the 2010 SFER), the

data indicate that levels of total phosphorus (TP) at inflows to the Refuge, WCA 2, and WCA 3 have decreased since the 1980s. However, all part s of the Everglades Protection Area do not yet meet the nutrient criteria, and furt her reductions of TP in the infl ows to the Everglades must be achieved if further degradation is to be prevented and the criteria are to be achieved. We have summarized below the pertinent analyses of historic al data from several sources to document this

conclusion.

1. Water Quality

The 2010 SFER summarizes the status of attainment with the numeric 10 ppb TP criterion (expressed as a geometric mean), as well as the observed data and trends, in the Everglades Protection Area. Figures 3A-10 through 3A-12 of the 2010 SFER provide the annual geometric mean TP concentrations during the en tire period of record from Water Year (WY) 1978-2009 for the Everglades Protection Area inflow and interior sites. As demonstrated in those figures, the concentrations of TP at in flows to the Refuge and WCAs 2 and 3 have decreased; however, the inflow concentrations are still not at or below the applicable 10 ppb criterion (geometric mean). For WY2009, wh ich includes the period May 1, 2008 through April 30, 2009, page 3A-42 of the 2010 SFER indicates that approximately 30% of interior marsh sites within the Everglades Protection Area exhibited annual geometric mean TP concentrations of 10 ppb or higher and approximately 16% of interi or marsh sites exceeded the annual geometric mean TP concentration of 15 ppb, the annual maxi mum cap in the Phosphorus Rule’s four-part test for measuring achievement with the TP numeric criterion

. 9 Annual data for the phosphorusimpacted stations at the periphery of the Ev erglades Protection Area indicate concentrations above 15 ppb at all stations (2010 SFER Append ix 3A). Furthermore, WY2009 monitoring along transects downstream of Stormwater Treatmen t Areas (STA) 1E, 1W, and 2 confirm that at

7 See Section III.B.1. for the definitions of the narrative and numeric criteria.

8 The Court’s Order directed USEPA to notify the State that it was out of compliance with the nutrient standards. The CWA does not consider a State to be “out of complia nce” with the Act if water qu ality standards are not being

attained. The CWA does require States to take actions to meet standards (e.g., include effluent limits in permits to meet standards) and to take actions when standards are not being attained (e.g., identify impaired waters and develop total maximum daily loads). To carry out the Court’s Orde r, USEPA is notifying the State that it is not attaining

their nutrient standards in the Everglades Protection Area.

9 The TP criterion rule for the Everglades Protection Area, approved by USEPA, includes a four-part assessment methodology (four-part test). The purpose of this test is to serve as an assessment method to determine whether the long-term (decades) 10 ppb geom etric mean criterion is being achieved on a sh ort-term (annual) basis. The intent of the four-part test is to place an upper limit on TP concentr ation in the Everglades mars h and limit the variability in TP concentration allowed by the compliance test to the vari ability observed at marsh reference sites. Evaluations of this test have concluded that attaining these four concentr ation requirements together as sures that the long-term TP concentration does not exceed the 10 ppb geometric mean criterion (USEPA 2005, Walker 2005). Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 13 of
578 marsh locations nearest to the STA discharges, at all transects in the Refuge and WCA2A, surface water TP exceeds 15 ppb (2010 SFER at 5-37).

From 2005 to 2009, the average annual TP conc entrations being discharged from the urban basins, EAA, and the C-139 Basin into th e Everglades Protection Area were 89.9 ppb for the Refuge, 31.0 ppb for WCA 2A, and 33.7 ppb for WCA 3A (2010 SFER executive summary p. 10). For 2009, the average annual TP concentrations discharged from the six STAs ranged from 13 ppb (STA 3/4) to 94 ppb (STA 6) (2010 SFER at 5-12).

2. Attainment of the TP Water Quality Criterion

Pages 3A-55 and 56 of the 2010 SFER addr ess whether the TP criterion has been achieved in the Everglades Prot ection Area. The areas with soil phosphorus concentrations less than 500 mg/kg, in each WCA, including the Refuge , passed all four parts of the criterion test and were therefore considered by USEPA to be in attainment with the 10 ppb TP criterion. 10

However, the areas with soil phosphorus concentrations greate r than 500 mg/kg failed one or more parts of the four-part test and therefor e exceeded the criterion. Specifically, the WY2009 assessment of the four-part test confirms that surface water in the Refuge, WCA 3A and WCA 2A, at stations near water inflow structures and overlaying areas with high soil TP, still does not meet the TP criterion, with annual geometric mean TP concentrations as high as 61 ppb (site X1) in the Refuge, 35 ppb (F5) in WCA 2A and 23 ppb (CA36) in WCA 3A (2010 SFER App 3A-6).

3. Soil and Vegetation Changes

Between 2004 and 2009, four publications by sc ientists from several agencies and universities independently conclude d that soil TP concentrations have worsened in parts of the Everglades Protection Area. In USEPA’ s 2007 Regional Environmental Monitoring and Assessment Program (R-EMAP) Status Report, USEPA summarized the soil conditions observed in 1995-96 and 2005. An excerpt from pages 62-63 of the 2007 report provides a succinct summary of the soil TP concentrations:

Program data indicate that in 2005 the area of the Everglades with soil TP concentrations exceeding 500 mg/kg was 24.5 ± 6.4%, while 49.3 ± 7.1% of the 2063 square miles sampled exceeded 400 mg/kg (Figures 45 and 46). This contrasts with 16.3 ± 4.1% exceeding 500 mg/kg in 1995-96, and 33.7 ± 5.4% exceeding 400 mg/kg. Figure 47 shows the most recent (2003-2005) soil TP data at 1270 locations from all of the programs sampling in the Everglades (R-EMA P, University of Fl orida – SFWMD, and Florida or federal permit transect monitori ng). Depicted as mg/kg, WCA 3A north of Alligator Alley, northern WCA 2A, and the edges of the Refuge most proximate to canals have the highest soil phosphorus in the por tion of the Everglades underlain by peat soil (Figure 47). There are also several locations throughout sout hern WCA 3A and the Park with soil TP in excess of 500 mg/kg. Howe ver, these locations have no corroborative

10 The Court’s 2010 Order struck the de finitions of unimpacted and impacted from the Phosphorus Rule. Because these definitions are used in the Rule for provisions that the Court did not strike, USEPA recommended in its July 29, 2010 Rule 60(b) motion to not strike those definitions. (Rule 60(b) motion, pages 19-20) Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 14 of
579 second indicator of enrichment such as wate r TP exceeding 10 ppb, presence of cattail, or altered periphyton communities.

Based on the information presented above, the percent of the Everglades with TP soil

concentrations in excess of 500 mg/kg in 1995/1996 was approxi mately 16% (211,000 acres). By 2005, the high TP soil portion of the Everglades was approximately 24% (317,000 acres). In the 10 years between 1995 and 2005, TP-impact ed areas increased by approximately 106,000 acres, or 50%.

As noted in the 2007 R-EMAP report, other sc ientific studies also documented increases in Everglades soil TP in recent ye ars. Grunwald, et al. documented spatial expansion of elevated soil TP within WCA 2A from 1990 to 1998, concludi ng that, within WCA 2A, the mean soil TP concentration increased from 661 mg/kg to 860 mg/kg over this eight-year period. 11 Bruland, et al. analyzed soil TP data within WCA 3 colle cted from 1992 and 2003 and concluded that the area with soil TP > 500 mg/kg increased from about 21% (124,000 acres) to 30% (177,000 acres) over these 11 years. 12 Marchant, et al. documented an e xpansion of TP-enriched soils farther into the Refuge from 1991 to 2003. 13 The expansion of the high TP soils could be due to several causes: TP in discharges from the Everglad es Construction Projects (the STAs) into the Everglades Protection Area in excess of the 10 ppb criterion; release of TP already present in upstream Everglades soils; and chemical processes in the soil, such as oxidation. 14

The expanses of cattails in WCA 2A, WCA 3A, and the Refuge are associated with the areas of high TP in soils in the northern parts of WCA 2A and 3A and around the edges of the Refuge. The conversion of open-water sloughs to dense st ands of cattail results in the loss of the vegetation mosaic that is a defini ng characteristic of the Everglades . This conversion results in a loss of wading bird foraging habita t, and is an indicator of a nut rient-induced imbalance in flora and fauna. In the 2007 R-EMAP Report, USEPA found that “t he expanse of cattail in the northern WCA 3 is evident, as it is in periphera l portions of the Refuge and WCA 2” and that “cattail was documented as being present, but no t necessarily dominant, at 19% of the R-EMAP sites sampled in 2005.” In 2008, SFWMD scientists reported that the surf ace area of cattail in WCA 2A increased from 13,500 acres in 1991 to 23,000 acres in 1995, and then to 29,200 acres

in 2003. 15 While the rate of change between thes e periods slowed from 2,374 acres/year to 770 acres/year, the vegetation in th e Everglades continued to be altered over the 12-year period.

11 Grunwald, S., K. R. Reddy, S. Newm an and W. F. Debusk. 2004. Spatial variability, distribution and uncertainty assessment of soil phosphorus in a south Florida wetland. Environmetrics 15:811-825.

12 Bruland, Gregory L, Todd Z. Osborn e, K. R. Reddy, Sabine Grunwald, Susan Newman and William F. DeBusk. 2007. Recent changes in soil TP in the Everglades: Water Conservation Area 3. Environmental Monitoring and

Assessment 129:379-395.

13 Marchant, B. P., S. Newman, R. Corstanje, K. R. Reddy, T. Z. Osborne, R. M. Lark. 2009. Spatial monitoring of a non-stationary soil property: phosphorus in a Florida water conservation area. European Journal of Soil Science 60(5):757-769.

14 The effective treatment area of STAs has increased from about 18,000 acres in WY2003 to 43,000 acres in WY2009. (2004 SFER chapter 4 and 2010 SFER chapter 5).

15 Rutchey, K, T. Schall and F. Sklar. 2008. Development of vegetation maps for assessing Everglades restoration

progress. Wetlands 28(3):806-816. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 15 of
5710 The information presented above demonstrat es that excess phosphorus continues to be discharged into the Everglades Protection Area, and that significant areas of the Everglades Protection Area continue to not attain the narrative and numeric water quality criteria.

B. WQBEL for the STAs That Implements the Numeric Water Quality Criterion of 10 ppb as a Long-term Geometric Mean

A critical component of an en forceable framework is a spec ific WQBEL to ensure that the STA discharges will not cause exceedance s of the numeric criterion throughout the Everglades Protection Area. The WQBEL derive d by USEPA to limit the STA discharges into the Everglades Protection Area has two components:

TP concentrations in the disc harge may not exceed either:

- 10 ppb as an annual geometric mean (GM) in more than two consecutive years; or

- 18 ppb as an annual flow-weighted mean (FWM).

Compliance with both parts of the WQBEL will assure that the STA discharges will not cause an exceedance of the long-term criterion of 10 ppb. The background and statistical approach for derivation of each WQBEL component is summa rized below. USEP A’s WQBEL Technical Support Document (Attachment G) contains more de tailed technical analysis and references. In a manner analogous to the two elements of the f our-part test to assess attainment of the underlying water quality criterion ci ted in subsection 1 below, the WQBEL has: 1) a longer-term component (the 10 ppb GM not to be exceeded in mo re than two consecutive years) that assesses compliance with the water quality criterion well in advance of the criteri on’s longer timeframe; and 2) a short-term (higher) annual limit (t he 18 ppb annual FWM) that caps the maximum TP level that can be discharged in a given year. Should FDEP propose an a lternative approach to establishing a WQBEL, USEPA will evaluate its scientific rigor to ensure it appropriately implements the water quality criterion in acco rdance with the Clean Water Act (CWA) and its implementing regulations.

1. The TP Criterion for the Everglades Protection Area

Because the WQBEL is derived from and must comply with the underlying water quality standard, it is important to understand the underl ying TP criterion for the Everglades Protection Area. TP has been measured monthly since the 1970s at reference 16 locations within the Everglades marsh in WCA 2A, 10 to 20 miles down stream of any water inflows. These data

demonstrate that TP concentrations at these re ference marsh locations naturally fluctuate both spatially and temporally above and below 10 ppb at any individual station. Although TP levels fluctuate, the long-term geometric mean rema ins at or below 10 ppb, with no indication of biological or ecological impact or imbalance. Technical staff developi ng the criterion used the geometric mean because it represents the central tendency of environmental data that are log-

16 A reference station is a location that identifies the back ground level of water quality in the Everglades. These sites exhibit the unaltered ecosystem structure and functio n that are typical of a lo cation with no evidence of phosphorus impacts or imbalance. Reference sites are routinely used to develop water quality criteria. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 16 of
5711 normally distributed (i.e., a distribution of da ta that has a preponderance of low values and relatively few high values), consis tent with the measured phosphorus levels in the Everglades.

Relying on these data and analyses, in 2005 FDEP adopted and USEPA approved a water quality criterion expressed as a long-term TP ge ometric mean of 10 ppb for Class III waters in the Everglades Protection Area (see Florida Administrative Code (FAC) Rule 62-302.540). This 10 ppb geometric mean numeric criterion applies in addition to the exis ting narrative criterion, which states, “[i]n no case shall nut rient concentrations of a body of water be altered so as to

cause an imbalance in natura l populations of aquatic flora or fauna.” (see FAC Rule 62- 302.530(48)(b)). The FDEP TP rule is also consis tent with the State of Florida’s Everglades Forever Act (EFA) which similarly specifies, “[i] n no case shall such phos phorus criterion allow waters in the Everglades Protection Area to be alte red so as to cause an imbalance in the natural populations of aquatic flor a or fauna.” (see Florida Statutes 373.4592(4)(e)2). 17

To determine whether the long-term criterion is being achieved in the Everglades marsh, the TP criterion rule approved by the USEP A includes a four-part assessment methodology (four-part test). The f our-part test includes a longer-term 10 ppb GM value (over five years) that applies across all marsh stations and a short-term (annual) 15 ppb GM value that is the maximum that can occur at any individual marsh station. Use of both values places an upper cap on TP concentration in the Everglades marsh, while acc ounting for the variability observed at all marsh

reference sites.

2. Description of Water Quality Based Effluent Limits (WQBEL)

Where technology-based permit effluent limits are not adequate to a ttain the water quality criterion of a waterbody, the CWA and impl ementing regulations for the CWA’s National Pollutant Discharge Elimination System (NPDES ) program require that discharge limits in NPDES permits be set at levels to meet wate r quality standards (see CWA section 301(b)(1)(C) and 40 CFR § 122.44(d)(1) and (5)). These limits are known as WQBELs.

The NPDES regulations further require that WQBELs “derive from and comply with” all applicable water quality st andards (see 40 CFR § 122.44(d)(1)(v ii)(A)). USEPA recommends the use of statistical procedures that translate underlying water qua lity criteria into defensible, enforceable and protective WQBELs (USEPA 1996) . Based on this underlying regulation and as a result of the translation, WQBELs may differ from the unde rlying water quality criterion.

NPDES regulations require that a WQBEL be expressed as a daily maximum and a monthly average, unless impractical (see 40 CFR § 122.45(d)). However, as a technical matter, USEPA understands that expres sing permit effluent limitations for nutrients like phosphorus over shorter terms (for example, as a daily maxi mum, weekly average, or monthly average) may

17 The above summarizes the current situation but it is importa nt to take note of the ongoing federal promulgation of

numeric nutrient criteria for Class III waters in the State of Florida. Numeric nutrient criteria applicable to both inland and downstream estuarine and coastal waters of South Florida are expected to be proposed on November 14, 2011, and subsequently finalized on August 15, 2012. The process of developing those numeric nutrient criteria is ongoing at this time. Once finalized and implemented, those criteria may result in different ambient concentrations upstream of the STAs. In all cases upstream values mu st be protective of the downs tream Everglades criterion.

Florida Wildlife Federation v. Jackson , Doc. #90, N.D. Fla. Case No. 08-cv-324-RH-WCS. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 17 of
5712 be impractical and supports expression as annual permit limits since the e ffects of nutrients are expressed far afield and over longer time peri ods. Recent USEPA guidance for Chesapeake Bay permitting recognized this issue (USEPA 2004). US EPA is following the same approach for the WQBEL in this situation. 18

3. Basis for Development and Use of a Fl ow-Weighted and Geometric Mean WQBEL

The naturally nutrient-poor marshes of th e Everglades are affected by both the concentration and the load of phos phorus. Once it is discharged in to the Everglades, this mass or load of TP cycles within the marsh where it can continue to impact flor a and fauna. The higher load received from higher flows may accumulate in the marsh and affect its long-term observed

concentrations.

In recognition of the importa nce of TP loading, all of th e current phosphorus limits and water quality standards applied at water discharge structures in the Everglades, including the Park, express TP values as a FWM. In additi on, the model used to size the STAs requires that TP data are expressed as a FWM. The FWM con centration is the averag e level of phosphorus in the water, weighted proportiona lly for the volume of flow dur ing the time of sampling.

The current STA permits require that phosphorus data are collected weekly at discharge structures, and that the associat ed water flow rates are measured continuously. The calculation of FWM TP levels from such data gives greater weight to samples taken during high, rather than low, flows. Thus, high flow events resulting in higher TP loads discharged into the Everglades are directly measured and accounted for.

Establishing the annual cap as a FWM accounts for high flow TP loading events that can affect the cumulative delivery of phosphorus to the Everglades. Includ ing a loading component provides additional protection and allows operationa l flexibility within th e expected variability of the design parameters of the STA. In addi tion, an annual cap provides the means to evaluate performance and compliance on a more freque nt basis than over a three-year period.

Because the underlying TP water quality crite rion and each component of the four-part assessment methodology associated with that crit erion are all expressed as a geometric mean, and to be consistent, USEPA chose to express th e first part of the WQBEL as an annual GM. The annual GM cannot be exceeded in more than two consecutive years.

4. Method to Derive WQBEL

The WQBEL for STA discharges that USEPA developed is derived from and complies with the TP criterion for the Everglades Protec tion Area. To derive the WQBEL from the TP criterion, consistent with USEPA regulations, US EPA has applied a statistical approach that translates the 10 ppb long-term geometric mean water quality criterion averaged across the marsh stations to a single point at the discha rge of the STAs. Based on the NPDES regulations

18 In the 2004 Guidance, USEPA concluded “that permit limits expressed as an annual limit are appropriate and that it is reasonable in this case to conclude that it is ‘impracticable’ to express permit effluent limitations as daily maximum, weekly average, or monthly average effluent limitations.” Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 18 of
5713 cited above, a statistical approach that takes into account the variabil ity of the pollutant concentration in the discharge is an appropriate method for de riving a WQBEL. USEPA relied on a statistical WQBEL approach for the Everglades STAs that used the l ong-term variability of TP and flows for these systems. (See Attachme nt G for a detailed analysis of the technical approach.)

As discussed above, the USEPA approach takes into consideration that the STA treatment systems are controlled marsh environments that will discharge variable concentrations

of TP over time based on the influent concentr ations and load of TP, the types of vegetation, variable flows and the operational practices for each STA. The construction and operation of the existing STAs has provided USEPA with substan tial data on how they f unction. When all six STAs are considered together, there are about 50 years of historical dataon TP concentration and

flow values. Established statistical methods conf irm that a strong relationship exists between the TP long-term GMs and FWMs at STA discharges. 19

Inherent in the derivation of the WQBEL is an accounting for variability in the TP concentration at the discharge point. USEPA ex amined the year-to-year variability observed during STA operations over the past several years and compared this range of performance to an expected long-term performance that centers on the protective criterion. Because the STAs are not currently discharging at or below levels necessary to me et the underlying water quality criterion, USEPA statistically adjusted the hi storical STA TP data to simulate an STA discharging at the criterion - a long-term GM of 10 ppb. By adjust ing the actual data to reflect levels that would meet the water quality criter ion, USEPA can determine a range of acceptable TP concentrations at the STA discharge point that will meet the 10 ppb GM. Under this approach, a combination of the two values – 18 ppb FWM annual average and 10 ppb GM that cannot be exceeded in more than two consecutive y ears – are necessary to ensure that all relevant variability is accounted for and that the WQBEL w ill be stringent enough to meet the criteria as expressed in the 4-part test. Using this approach, the annua l FWM TP concentration at the discharge point can be 18 ppb in any one year and still be protective of the marsh, as long as the annual GM of 10 ppb is also not exceeded in mo re than two consecutive years. This 18 ppb annual FWM discharge limit that must be met at each STA discharge every year represents a shorter term annual cap that help s to assure that the longer term average value would be met and is analogous to the four-part test 15 ppb GM va lue that must be met every year at each Everglades marsh station. As a result, USEPA is adopting the two-component WQBEL referenced above to be included in the NPDES and EFA permits for the STAs.

5. Conclusion

In this section (section III.B), USEPA is providing direction in this Amended Determination on the appropriate WQBEL for the ST As in accordance with the Court's order and in support of effective implementation by the St ate of its NPDES program authority under CWA section 402(b). USEPA has oversight authority ov er the state's program to help ensure its

19 USEPA’s analysis shows a very strong correlation (co rrelation coefficient = 0.92) between the geometric mean and flow-weighted mean of TP at STA discharges: fl ow-weighted mean = 1.23 tim es the geometric mean. Therefore, for example, 10 ppb geom etric mean = 12 ppb flow-weighted m ean, and 15 ppb geometric mean = 18 ppb flow-weighted mean. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 19 of
5714 effective implementation, including the authority to object to state perm its and issue a federal permit where a state's proposed permit is outside the guidelines and requirements of the CWA.

The WQBEL calculated using the statistical ap proach described above will allow the TP concentration discharged from the STA to vary wi thin acceptable limits while ensuring that the discharges will not cause exceedances of the ambi ent water quality criterion of 10 ppb as a longterm GM in the Everglades marsh. Expre ssing one component of the WQBEL as a FWM concentration prevents annual hi gh flow loading to the Everglades and is, therefore, more appropriate than relying solely on a limit expressed as a GM c oncentration. Using established statistical approaches, the average annual FWM TP concentration at the discharge point can be 18 ppb in any one year and still be protective of the marsh, as l ong as the annual GM of 10 ppb is

also not exceeded in more th an two consecutive years.

C. Source Controls and Stor mwater Treatment Area (STA) Expansions to Meet WQBEL

In the following discussion, USEPA refers to three distinct flow paths for runoff water

from the EAA and the C-139 basins to reach th e Everglades Protection Area. These are the

Eastern Flow Path that drains the urban and eastern basins of the EAA through STA 1E and STA 1W to the Refuge; the Central Flow Path that drains the central basins of the EAA through STA 2/Compartment B and STA 3/4 to WCA 2A and 3A; and the Western Flow Pa th that drains the western portion of the EAA and the C-139 Basi n through the STA 5, STA 6, and Compartment C complex into WCA 3A, flowing onto and th rough the Federal Reservation of the Seminole

Tribe of Florida and the Federal Reservation of the Miccosukee Trib e of Indians of Florida.

As directed by the Court (2010 Order at 45) , USEPA is providing clear, explicit, and comprehensive instructions to the State of Florida on the manner and method to obtain the WQBEL, including specific milest ones. The total expansion re quired to meet the WQBEL is approximately 42,000 acres. The expansions identified by the USEPA in this Amended

Determination assume that no additional source controls will be implemented that would reduce

the inflow concentrations of TP to the curren t and anticipated expanded STAs. As we discuss below, USEPA expects the State to implement add itional source controls consistent with its State law; however, as a conservative assumption, USEPA has designed the expansions based on existing inflow concentrations of TP.

The expansions discussed below include both ST As and flow equalization basins (FEBs). An FEB is a water storage feature located upstrea m of an STA that captures peak flows during the wet season, reducing flow spikes that can damage vegetation in the STA, and provides some TP treatment. Depending on the design, the FEB may also hold water until the dry season, and provide a needed source of water for the STA. For these reasons, USEPA has incorporated an FEB into the remedy design for the Western Flow Path. USEPA assumes that the FEB will be managed for the purpose of optimizing STA performance.

USEPA believes that further re fined modeling may identify fl ow path-specific remedies that are equal to or better th an the remedies presented in this Amended Determination in removing TP in a shorter or similar amount of ti me. USEPA believes it w ould be appropriate to provide an opportunity for the SFWMD as the permittee to provide USEPA technical input on Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 20 of
5715 the remedies USEPA identifies in its Amended De termination. Therefore, USEPA is offering SFWMD the opportunity to submit within 60 days alternative remedies that could achieve WQBELs as soon or sooner than USEPA’s recommended remedies. If SFWMD provides a sufficient demonstration, includ ing modeling results that demons trate an alternative approach will provide equal or better assurance of meeti ng WQBELs in the specified time frames than the remedy presented in this Amended Determin ation, USEPA and FDEP could take that information into account in evaluating whether th ere would be an alternative remedy in lieu of the remedy in this Amended Determination. US EPA would expect that any new remedy would need to be accompanied by a schedule and specific milestones to ensure timely implementation. USEPA and FDEP will evaluate the alternative pr esented and consider incorporating the revised approach in subsequent permitting, compliance, and enforcement proceedings. If USEPA finds the alternative(s) to be acceptable and consistent with the expectations ou tlined in this Amended Determination, USEPA will respond within 45 days of receiving the alternative remedy proposal with a supplement to the Amended Determination.

1. Source Control and Permitting Requirements

Starting with the 1991 Settlement Agreem ent in the Consent Decree Case, phosphorus control in the Everglades has been based on a co mbination of best management practices (BMPs) coupled with STAs. Although the specific require ments have changed over the years, the

combination of source reduction and treatment con tinues to be the corner stone of Everglades water quality restoration.

Subsection 4(f) of the 1994 EFA created a comprehensive permitting program for the farmers in the EAA and the C-139 Basin. The EFA requires farmers to obtain permits to develop BMPs to reduce the load of phosphorus leaving their farm basins by a specific amount, to implement a monitoring program to show the e ffectiveness of the BMP program and compliance with permits, and to continue to conduct research to identify water quality parameters that are not being significantly improved and identify further BMP strategies (see EFA Subsection 4(f)1 – 3, 5 and 6). 20 Under the permitting program, the farmers in the EAA basins have specific requirements to collectively reduce the phosphorus load in their discha rges by a minimum of 25%; the C-139 Basin farmers are prohibited from collectively exceeding an annual average load of 28.7 metric tons for three consecutive years based on a specific period of record (1978 to 1988). Under this structure, as long as the fa rmers implemented BMPs, reduced the level of phosphorus leaving the basin as a whole by the specified amount, and met the taxing requirements of the EFA, no further actio ns were needed until December 31, 2006. 21 The SFWMD issues and enforces these permits.

20 Under EFA Subsection 4(f)(3)(b), a compliance schedule is not available to new land uses and new stormwater

management systems.

21 After Judge Davis found subsection 4(f) of the EFA to be a de facto suspension of water quality standards as it applied to the farm discharges, USEPA issued its 1999 Determination approving subsection 4(f) as a compliance schedule implementing the phosphorus criterion for the farm ers. Miccosukee Tribe of Indians vs. United States, Case No 95-533-CIV-DAVIS (S.D.FL.), 9/14/08 Omnibus Order. In the 1999 Determination, USEPA approved the compliance schedule (which contained this BMP/STA-based approach), however, stating that “As noted above, the reasonableness and acceptability of the 12 year schedule also assumes that the December 31, 2006 deadline will be met.” 1999 Determination, FN 15. In sum, USEPA ag reed to let the existing regulatory structure stand until December 31, 2006, but as of that da te additional actions could be required and were mandated by the EFA. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 21 of
5716 In the 2008 Court Order, citing USEPA’s 1999 Determination, the C ourt recognized the December 31, 2006 date as a deadline for comply ing with the TP criterion. If the water delivered to the Everglades was not achieving applicable water quality standards including the numeric criterion for TP by this date, the State wa s required to take additi onal steps to reduce the levels of TP. Under the EFA, this includes SFWMD reissuing the farm permits with specific limits in those permits.

Specifically, Section 4(f) of the EFA provides:

3. The Legislature finds that through th e implementation of the Everglades BMPs Program and the implementation of th e Everglades Construction Project, reasonable further progress will be made towards addressing water quality requirements of the EAA canals and the Everglades Protection Area. Permittees

within the EAA and the C-139 Basin w ho are in full compliance with the conditions of permits under chapters 40E-61 and 40E-63, Florida Administrative Code, have made all payments required under the Everglades Program, and are in compliance with subparagraph (a)7., if applicable, shall not be required to implement additional water quality improve ment measures, prior to December 31, 2006, other than those required by su bparagraph 2., with the following exceptions:

a. Nothing in this subparagraph sh all limit the existing authority of the department or the district to limit or re gulate discharges that pose a significant danger to the public h ealth and safety; and

b. New land uses and new stormwater management facilities other than alterations to existing agricultural stor mwater management systems for water quality improvements shall not be accord ed the compliance established by this section. Permits may be required to impl ement improvements or alterations to existing agricultural water management systems.

4. As of December 31, 2006, all permits, incl uding those issued prior to that date, shall require implementation of additiona l water quality measures, taking into account the water quality treatment actua lly provided by the STAs and the effectiveness of the BMPs. As of that date, no permittee’s discharge shall cause or contribute to any violation of wate r quality standards in the Everglades

Protection Area.

The December 31, 2006 permitting requirements applied equally to the EAA farmers as well as

to the C-139 basin farmers. 22 See EFA 4(f)(6).

Despite the regulatory programs in place, con centrations of TP in runoff from the S-5A and C-139 Basins are greater in th e last five years than over the full period of record based on

22 The C-139 Basin Rule has been amended and is scheduled to go before the SFWMD Board for adoption the week of September 6th, 2010. If adopted, it should become effective in November after public comment. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 22 of
5717 SFWMD data. The inflow concentration of TP has a significant effect on the outflow concentration of TP at the STA discharge point. 23 USEPA modeling indicate s that reductions of

TP in the inflow to the STAs can reduce the ac reage of STAs required to the meet the WQBEL (see Attachment H). As discussed above in Secti on III.A., portions of th e Everglades Protection Area are not achieving either the numeric TP cr iterion or the narrative nutrient criterion. Although the existing BMP program and the current STAs are providing reductions in the level of phosphorus discharged to the Everglades Protection Area, 24 additional steps are needed to ensure the water quality criteria are achieved. For the purposes of this Amended Determination, the additional steps include expansions of the STAs and/or use of FEBs. However, USEPA

believes that the SFWMD could utilize their exis ting statutory mechanisms , knowledge of inflow concentrations to the STAs, and modeling results, to quantify how a given level of source control can improve the efficiency of the STAs, or po ssibly decrease the necessa ry acreage required in

the remedies below.

2. Expanded Stormwater Treatment: Actions and Milestones

In responding to the Court’s order, USEPA evaluated the need for additional STAs or FEBs in each of the three flow paths in orde r to attain the WQBEL in discharges to the Everglades Protection Area. Ba sed on modeling conducted by USEP A, the existing footprint of the STAs including the ongoing expansions in Co mpartment B and Compartment C is projected to discharge TP at the following annual FW M concentrations: 34 ppb from STA 1E and STA 1W; 20 ppb from the STA 2 and Compartment B complex; 16 ppb from the STA3/4; and 18 ppb from the STA5, STA 6 and Compartment C comp lex (see Attachment H for assumptions and model results). Without additional STA acreage and/ or source controls, none of these STAs can be expected to meet the WQBEL. USEPA’s mo deling predicts a signifi cant STA expansion or FEB is needed in all three flow paths. In order to meet water quality stan dards in the Everglades, the State must build, as expeditiously as practicable, these additional STAs and FEB. For each flow path, the specific actions and milestones, are summarized below along with the underlying assumptions. However, as noted above, the SFWMD can evaluate these options and present alternatives within 60 days of this Amended Determination.

(a) Modeling Approach

USEPA used an STA phosphorus removal perfor mance model to predict the STA or FEB acreage required in order to meet the WQBEL at the STA’s point of discharge into the Everglades Protection Area. This model, 25 developed in 2001, has undergone several enhancements and has been routinely used by SFWMD to evaluate STA expansions. A description of the model, mode l input and the assumptions used about the inflow water volume

and TP concentrations to be treate d are provided in Attachment H.

In order to establish the si ze of the STAs or FEBs requi red to meet the WQBEL, the outflow TP concentration objectiv e for the STAs must be determ ined along with an appropriate

23 The outflow TP concentration is also influen ced by the size of the STA and other factors.

24 Since 1994, STAs and BMPs have prevented over 3,000 metric tons of TP from entering the Everglades Protection Area. (2010 SFER)

25 Dynamic Model for Stormwater Treatment Areas (DMS TA). See Attachment H for more information. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 23 of
5718 margin of safety. USEPA conducted modeli ng scenarios using three different outflow concentration end points, beginning at the criterion, to assess the se nsitivity of the predicted STA expansion acres to the desired end point, and th e certainty that the WQBEL will be met. The lower the desired end point (in other words, the more stringent the discharge modeling end point), the larger the projected STA expansion acreage, and the gr eater the assurance (margin of safety) that the STA will meet the WQBEL. USEPA assessed three end points including a 10 ppb long-term geometric mean (the long-term cr iterion); a 9.3 ppb long-term geometric mean; and an 8.9 ppb long-term geometric mean. 26

Traditional wastewater treatment systems are ge nerally designed with a margin of safety to assure compliance with the conditions of e nvironmental permits. In making this decision for the Everglades’ wetlands treatment systems, USEP A has considered severa l factors in specifying the margin of safety. The larger an Everglades wetland treatment system, the more difficult it is to manage the system for optimal treatment, es pecially maintaining the system as fully flooded throughout drier years. In additi on, there is a cost to the public, as a larger margin of safety requires the purchase of additiona l land to serve as treatment wetlands and operation of these larger systems is more technically challengi ng. Given these considerations, USEPA concluded that it is appropriate to incorporate a limited margin of safety into the design target for the STAs, and therefore, selected a TP c oncentration of 9.3 ppb long-term ge ometric mean as the basis for the additional STA acreage needed to meet the WQBEL. 27

The inflow concentration of TP assumed in th e model is also critical for determining the predicted size of the STA or FEB needed to meet the WQBEL. The higher the inflow concentration assumed, the larger the acreage needed to meet the WQBEL. USEPA assessed the TP concentrations discharged from the EAA an d C-139 basins over the period of record as well as over the last five years. The concentrati ons in the S-5A basin a nd C-139 basin are higher during the last five years than over the period of record (d espite the phosphorus removal

attributed to the State’s EAA and C-139 Basin regulatory programs). USEPA assumed in the modeling an inflow concentration eq ual to that observed over the la st five years, and therefore, the remedies presented in this Amended De termination are not dependent upon further

reductions in TP concentrations in th e inflows to the STAs and/or FEBs.

(b) General Considerations in Developing the Schedule

In its 2010 Order, the Court instructed USEPA to “establish specific milestones to ensure the State of Florida does not continue to igno re, and improperly extend, the compliance deadline for meeting the phosphorus narrative and numeric criteria in the Evergl ades Protection Area.”

Order at 45. It is clear the Court intends thes e milestones to reflect a schedule for compliance as soon as practicable. USEPA has assessed historical information and considered other factors to determine specific milestones for each of the three flow paths. The schedule by which the

26 These concentrations, which are expressed as a long-t erm geometric mean, as the Everglades Protection Area marsh criterion is expressed, are equivalent to 12 ppb, 11.5 ppb and 11.0 ppb at the STA discharge when expressed

as a FWM. The DMSTA model used to size the STAs requires that TP data are expressed as a FWM.

27 Lowering the design target from 9.3 ppb to 8.9 ppb results in additional 4000 acres of STA expansion. Given the potential for the STA to dry out, potentially inhibiting treatme nt performance, there is onl y an incremental gain in potential treatment performance at an additional cost of tens of millions of dollars. Therefore, USEPA has concluded that a margin of safety to this magnitude is unwarranted. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 24 of
5719 WQBEL can be met for each of the flow path s depends on many different and complicated factors such as: how fast the State can purch ase the additional land needed for the expanded STA or FEB; how long it will take for certain land use changes to be adopted; how fast the State can design and build large STAs or FEBs; and how long will it take a new STA marsh to fully develop and process legacy phosphor us and begin to effectively tr eat the inflow water down to the levels required to meet the WQBEL. 28 USEPA considered all of these factors as it developed the milestones for each flow path. A genera l discussion of the factors and information considered by USEPA for each of the major categ ories of actions is discussed below.

Land Acquisition Schedule Analysis

Under the scenarios presented here, the SFWM D will need to purchase additional parcels of land to meet the WQBEL at the STA disc harges. The SFWMD Board recently voted to purchase 26,800 acres from the U.S. Sugar Cor poration for restorati on and water quality improvements to the Everglades. Approximately 8,900 acres of the proposed purchase is located in Palm Beach County in the northern part of the S5A basin, and 17,900 acres are in Hendry County within the C-139 annex. This purchase is to be finalized in October 2010. The amount of time required for the State to complete land ac quisition is highly variab le and has ranged from two to eight years.

USEPA is allowing in this Amended Determ ination two months for land acquisition in the Western Flow Path where the pending U.S. Sugar Corporation purchase provides adequate

land needed for treatment. In the Eastern Flow Path, the State will need to purchase land in addition to the pending U.S. Suga r Corporation purchase. USEPA is allowing three years for the State to complete the purchase of this additional land. For the purposes of this Amended Determination, completion of land acquisition is wh en the State has access to the property either by permission or by ownership.

STA Design Schedule Analysis

There are two general phases in the design of an STA: (1) the pl anning and conceptual design phase, and (2) the detailed design phase, including preparation of plans and specifications. Some, of the conceptual design for the STAs pres ented in this Amended Determination has been accomplished by the DMSTA modeling undertaken to produce this document. The detailed design, which is specific to the parcel of land on which the STA is built, requires access to the land for environmental assessments, testing, and data collection. The test results and other data provide the information needed for the production of detailed plans and specifications for land leveling, locations and sizing of levees, berms, canals and gates, and the hydraulics for how water will be moved into, through, and out of the STA (or FEB), including the size and locations of pumps. For access to the land, SFWMD must have acquired the land through purchase or, at least have been granted permission for access by the land owner before the detailed design phase can begin.

28 Some soils in the STA expansion areas have previously been farmed and may contain high levels of phosphorus. When the expanded STAs are flooded, this legacy phosphorus will continue to be released to the water column until the system has stabilized. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 25 of
5720 Historical information provi ded by the SFWMD indicates STA design has ranged in the past from two to five years. USEPA is allo wing in this Amended Determination two years for design, based on the assumption that the past expe rience of the SFWMD shoul d greatly facilitate the design process. There is one exception in the Central Flow Path where a shorter design period is needed for an interim shallow storage feature on the EAA A1 site . Flow path by flow path details are provided below.

Permitting Schedule Analysis

While the design is ongoing, the SFWMD must obtain a number of different authorizations (permits) from local, state and fede ral agencies before it can initiate construction on a project. These include: an EFA permit from the State for construction of the project; a CWA Section 404 permit from the U.S. Army Corp s of Engineers (USACE) for the discharge of dredged or fill material into waters of the US; a Section 10 permit under the Rivers and Harbors Act from the USACE if the project impacts a na vigable water; a Clean Air Act permit from FDEP if the project includes a diesel pump station; a CW A Section 402 NPDES permit from FDEP to discharge to waters of the State; a c onsumptive water use permit from the State; and in some cases, permits from the local government fo r a land use change. If the project involves alterations to an USACE flood control levee, and a private party (not the USACE) is the applicant, then a 33 U.S.C. Secti on 408 analysis must be conducted.

The FDEP will not generally accept an EFA pe rmit application until the project design is 30% complete, and will generally not issue the permit until the project design is 90% complete. The federal CWA Section 404 permit requires certification that stat e water quality standards will be met by the project and cannot be issued until the State EFA permit is issued (which provides the water quality certification). 29 The federal CWA Section 404 permit also must comply with the federal requirements under the National Envi ronmental Policy Act (NEPA), including an Environmental Impact Statement (EIS) where the permit is considered a “major action significantly affecting the quality of the environment.” In some cases, where the CWA Section 404 permit is not considered to be a “major Fede ral action significantly a ffecting the quality of the human environment,” an environmental assessment may be conducted. 30 In addition, where the project may affect a threat ened or endangered species or its habitat (as do most of the projects in the Everglades), the federal Sec tion 404 permit requires the USACE to initiate a

Section 7 consultation with U.S. Fish and Wildlife Service unde r the Endangered Species Act. The federal Section 404 permit would likely be the lengthiest of the permit processes, and would govern how soon construction on the project coul d begin. Based on past experience, USEPA assumes that all environmental permitting n ecessary for construction to begin can be accomplished in 2.2 years, in parallel with the de sign process. USEPA also assumes that it will take two additional months following the end of design to acquire final permits for those projects that are dependent on 90% design completion. Add itional considerations affecting specific flowpaths are provided below.

29 In some cases the USACE will issue a permit with a contingency clause that no work may begin until the CWA Section 401 certification and/or NEPA documentation is complete.

30 USEPA’s schedule is based on individual NEPA actions. It may be more efficient to combine all NEPA analyses into one EIS for all of the projects. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 26 of
5721 STA Construction Schedule Analysis

There are two main phases in the constructi on of an STA: 1) the civil works which include land leveling, and constr uction of levees, canals, gates, and other structures; and 2)

construction and installation of pumps and pump stations. 31 The existing pumps and pump stations used in the Everglades construction pr ojects are among the largest in the world, and were required to be specially designed and built for this purpose. The SFWMD now has prototypes for these pumps and experience in their procurement and installation.

Historical information provided by the SF WMD indicates STA construction has ranged in the past from three to seven years. USEPA is allowing in this Amended Determination three years for construction based on the conclusi on that the SFWMD now has considerable experience in the construction of STAs and that a number of experienced construction

contractors exist. 32 This timeline assumes that all expansions will need hydraulic improvements, most likely some system of pump s and an associated pump station. Therefore, from the end of the permitting phase, USEPA is allowing three year s for the completion of construction. Flowpath by flow-path details are provided below.

Flooding Schedule Analysis

Approximately two years after construction is st arted, after the external berm and internal levees and gates are built, but before the pum ps and the pump station are completed, an STA expansion is flooded with water. 33 This allows the marsh vegeta tion to begin to establish, and the existing legacy TP loads in the soil w ithin an STA, if any, to be reduced. USEPA is assuming that within one year (by the time c onstruction is complete), the STA will begin demonstrating net improvement in water qualit y at the downstream point within the STA on a consistent basis as compared to the inflow concentration. It is at this point that the SFWMD may begin discharging to the Everglades Protection Area. 34 It is assumed that flooding will begin two years after construction has star ted, with one exception in the Central Flow Path where some flooding has already occurred in th e EAA A1 site. Flow-path by fl ow-path specific details are provided below.

STA Performance Consistent with WQBEL

Once discharge from the STA begins, the STA will continue to mature and lower discharge concentrations of TP will occur. 35 It is USEPA’s judgment (based on the modeling

31 For example, in STA 3/4 which is 16,500 acres (26 square miles), there are approximately 39 miles of levees and

about 60 water control structures.

32 The construction schedule does not make any assumptions concerning the length or intensity of the rainy season. Since this has the potential to delay construction some flex ibility in the schedule may be needed to accommodate for

rainfall conditions.

33 Flooding depends on rainfall. Some flexibility in the schedule may be needed to accommodate rainfall conditions.

34 The required net improvement in water quality includes not only TP, but also other parameters, in particular mercury. In the past, net improvement in mercury took longer than net improvement in TP for one STA, thereby controlling the timeframe before which some of the STA could discharge.

35 STAs are constructed wetlands that are designed and managed to maximize phosphorus removal. Each STA has flowways containing treatment cells th at operate in series and are delineate d by levees. These treatment cells Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 27 of
5722 conducted for this Amended Determination) that give n the proper sizing of an STA, the TP in the discharge from the STA will meet the WQBEL once the STA is properly stabilized and functioning at its design efficiency. 36

However, a period of time will be needed for the STA to perform at its full treatment capacity. This period of time will vary depending on the conditions of the STA. USEPA expects that intensive management of the STA w ill be required for fine-tuning it to achieve its desired performance. This may include adjust ments in the type and proportion of vegetation which could take several gr owing periods to accomplish. 37 Hydrologic short circuiting within cells has also been an issue in past STA perf ormance that could requir e time and effort to identify and correct. 38 While it is possible under the most optimistic scenario for the STA to reach the WQBEL in a shorter amou nt of time, USEPA believes that a more realistic expectation is for an STA expansion to begin performing in a manner consistent w ith the WQBEL 2.5 years

after the STA is flooded.

There are several scenarios in this Amended Determination where existing STAs will continue to be hydraulically overloaded with runoff water until a portion of the flows can be diverted to new STA or FEB expansions. Once the flows are diverted to the expansion, the existing STA will need to adjust to the new hydr aulic condition. There are no data from other STAs for estimating the time it takes an existing STA to adjust to new, albeit preferable, hydraulic conditions. Therefore, the estimate of time for this adjustment is uncertain. USEPA estimates, using best professional judgment, that it will take 9-12 months after excess flows are diverted away for the STA to begin performi ng in a manner consistent with the WQBEL.

Once an STA begins discharging consistent with the WQBEL, it is delivering water to the Everglades Protection Area that protects th e designated use of the Everglades, and will not

cause an imbalance in flora or fauna. 39 Compliance with the WQBEL will be determined in accordance with the provisions of the conforme d NPDES and EFA permits described in Section

V.

3. Flow Path by Flow Path: Actions and Milestones

As directed by the Court (2010 Order at 45), and consistent with its authority under CWA sections 104(a)(1), (2 ) and 104(b)(1) and (7), USEPA is providing clear, explicit, and comprehensive instructions to the State of Florida on the manner and method to obtain the

contain various types of vegetation such as submerged a quatic vegetation or emergent vegetation. The modeling used to size the STAs in the remedies for this AD assumes some cells are dominated by submerged aquatic vegetation and some cells are dominated by emergent aquatic vegetation.

36 USEPA recognizes that until such time the WQBEL has been achieved, elevated TP loads will continue to enter the Everglades. In order to assess the cumulative effects of these discharges, specific monitoring will be required to track the phosphorus discharged over tim e and its effects. See Section IV.

37 Vegetation management may include repeated herbicide treatments and seeding by helicopter or by hand to establish an STA with the most efficient mix of submerged or emergent aquatic vegetation to maximize TP

assimilation.

38 SFWMD should take extra care to provide proper leveling of the site during construction.

39 Some soils in the Everglades contain high levels of phosphorus from historical discharges. Release of this phosphorus from the soil to the water column could delay the attainment of the TP criterion in portions of the Everglades beyond the time wh en the upstream STAs are di scharging at the WQBEL. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 28 of
5723 WQBEL, including specific milest ones for building STA expansions or FEBs. A summary of the remedies needed to attain the WQBEL in a ll STA discharges to the Everglades Protection Area is provided in Attachment B. Base d on USEPA modeling, approximately 42,000 additional

acres are needed for STA or FEB in order to m eet the WQBEL. The remedies are discussed in detail in the following flow-p ath by flow-path discussion.

(a) The Eastern Flow Path

The Eastern Flow Path drains runoff from the S5A basin a nd urban basins to the east, through STA 1E or STA 1W into the Refuge. ST A 1E and STA 1W were initially designed to discharge at 50 ppb. Both are sign ificantly undersized a nd not capable of trea ting the load of TP draining from these basins to levels needed to achieve the WQBEL. According to USEPA modeling conducted for this Amended Determin ation, assuming no reduction in the inflow concentrations, a 15,000-acre STA expansion is needed to attain the WQBEL. An additional estimated 1,500 acres will be needed for berms, levees, and canals for a total of 16,500 acres. 40

The SFWMD Board recently voted to purch ase 8,900 acres from U.S. Sugar in the northern part of the S5A basin; th is purchase is to be finalized in October 2010. Purchase of this land affords the SFWMD with the opportunity to either use this land in place as an STA, or exchange this for land adjacent to the existing STAs. With the U.S. Sugar Corporation purchase, an additional 7,600 acres will need to be purch ased for the full STA expansion required. 41

The area to the east of STA 1E is highly ur banized and does not appear to offer much opportunity for expansion of the STA 1E footprin t. As a result, USEPA is assuming that the expansion will occur adjacent to STA 1W. Si nce STA 1E will not be expanded, the inflow

volume must be reduced to a volume that can be effectively treated to the WQBEL. Flow that cannot be treated by STA 1E will be diverted to the expanded STA 1W fa cility. Since both STA 1E and STA 1W depend upon the STA 1W expansion in order to meet the WQBEL, neither can meet the WQBEL until the additional land is purcha sed, and the expansion is designed, built and operating. Under this scenario, STA 1E and STA 1W (with the expansion) will treat all existing flows to the Refuge, and no flows will be dive rted away from the Refuge for treatment elsewhere. (See the STA 1E and STA 1W su mmary tables below for milestones and final WQBEL date.)

USEPA has modeled another potentially viable alternative for the eastern flow path for meeting the WQBEL in possibly a shorter period of time. This altern ative includes an 8,000- acre STA and a 1,700-acre storage re servoir (44 feet deep) in the C51 basin that is currently under consideration by the South Florida Water Mana gement District (Distr ict) and a number of

Lower East Coast utilities. 42 Under this alternative, the C 51 reservoir would store water and release flows to STA 1E and an expanded STA 1W at a rate and quality that could be treated to the WQBEL.

40 See Attachment H, Table 3, ID 3.

41 USEPA’s remedy presented in this Amended Determina tion assumes that the STA expansion will occur in the area adjacent to STA 1W. If the U.S. Sugar Corporation purchase is used in place as an STA, additional acres may be needed to account for the loss of efficiency in utilizing an STA not contiguous with STA 1W.

42 See Attachment H, Table 3, ID 6. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 29 of
5724 It was not possible in the time available for this Amended Determination for the USEPA

to have assurance that a number of uncertainties with the C51 reservoir will be addressed. The success of this alternative depends upon a public -private partnership that will require many specific details and arrangements to assure the project moves forward on schedule and in a manner that will assure the right volume and quality of flows are delivered to the STAs. The SFWMD has indicated potential benefits this altern ative might provide such as: an increase in flows of water to the Everglades Protection Area; better quality of water to the Refuge; fewer

harmful fresh water diversions to the Lake Wort h estuary; and meeting the WQBEL as early as 2017. The SFWMD may provide ade quate assurance and sufficient information within the 60 day window to document the likelihood of success c onsistent with the timetable in the Amended

Determination.

(i) STA 1E: Milestones and Schedule

STA 1E was originally designed by the USAC E to treat water from the S5A and urban basins to meet a long-term TP outflow concen tration of 50 ppb, which was the original design target under the 1992 Consent Decree in the Co nsent Decree Case. The STA is, therefore, significantly undersized and cannot attain the WQBEL at this time. For the existing STA 1E to meet the WQBEL, approximately 47% of the current flow will have to be diverted to an expanded STA 1W. As a result, STA 1E will not begin to fully meet the WQBEL until flows can be diverted to STA 1W after the STA 1W expansion is complete. This diversion will not occur until November 30, 2018 (see discussion of the schedule for STA 1W below).

STA 1E is also not currently performing to its full capacity due to operational issues involving failed or inadequate stru ctures and elevation in some of the cells. Other culverts are likely to fail in the future, and need to be proactively repaired. Also, Cells 1 and 2 in STA 1E are temporarily operating at a decrea sed hydraulic capacity for an US ACE pilot project (Periphyton Stormwater Treatment Area, or PSTA) which decreas es the effective treatment area of the STA. Repairs, re-grading, decommissi oning the pilot project, and es tablishment of the treatment system vegetation are all needed for STA 1E to ultimately meet the WQBEL. In the interim, before flow can be diverted to STA 1W, th e repairs and modifications to STA 1E, when completed, will significantly improve the perf ormance of the facility in reducing TP

concentrations in the outflow wate r. For this reason, the repairs to STA 1E need to be made as soon as practicable so that th e STA is delivering less TP to the Refuge, although full compliance with the WQBEL will not occu r until the expanded STA 1W complex is operational and available to take flows away from STA 1E.

The USACE has either entered into contract s or is seeking approva l to complete certain repairs to STA 1E. The anticipated schedule of repairs is built into the following milestones.

The State of Florida will need to work closel y with the USACE and the District so that the following actions are completed in the timeframe s specified below to bring STA 1E to full operational capacity by the dates in the STA 1E summary table below. These activities will be completed in parallel with expansion activities in STA 1W. At the comp letion of the project, STA 1E will receive an annual average inflow volume of approximately 109,000 acre-ft per year. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 30 of
5725 STA 1E: Summary of Milestones and Schedule to Meet WQBEL

Activity Milestone Date to Complete Activity

Decommission USACE PSTA pilot project (after consultation with the Tribe) September 30, 2011 43

Complete repair/modification work: S-375 culvert repair Repair of 23 culvert joints and seals Re-grading of cells 5 and 7

Trash rakes and screens modifications March 31, 2015

Improved performance of STA 1E (1 year after repairs and modifications are complete) April 1, 2016

Flow modification to S-375 culvert (same date as STA 1W expansion is flooded) November 30, 2017

Divert Flow to 1W (construction at STA 1W is complete.) November 30, 2018

STA 1E performance consistent with WQBEL (1 year after diversion – allows the STA to adjust to the new hydraulic condition) November 30, 2019

The State will need to work with the USACE to decommission the periphyton pilot project in STA 1E by September 30, 2011.

The USACE Jacksonville District initiated a pilot project in 2004 to test the efficacy of a periphyton-based treatment system (PSTA). Th e purpose of the PSTA was to utilize periphyton

on a substrate to see if this w ould improve the phosphorus removal efficiency of the STA. To date, the Jacksonville District has collected approx imately seven months of data over the six-year period of pilot project operation. The lack of su fficient water to establis h periphyton and provide flow has been a primary reason for the limited amount of data collected. Also, the failure of the

S-365A and B culverts contributed to limitations in data collection. The USACE is currently evaluating the data collected fr om the pilot project in 2010. Based on this analysis, the USACE anticipates decommissioning the p ilot project in 2011 af ter consultation with the Tribe. Once started, decommissioning is expected to take approximately nine months. 44

43 The USACE has indicated that this is the earliest possible date for decommissioning the PSTA pilot project.

44 SFWMD has been conducting a PSTA pilot study in STA 3/4 since 2007. Results indicate that under controlled conditions the pilot project has discharged TP at 8-12 ppb FWM (SFER 2010 at 5-150). Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 31 of
5726 The State will need to work closely with the US ACE so that the repairs and modifications to STA 1E listed below are completed by March 31, 2015.

Complete S-375 culvert repair: Culvert S-375 is a multi-bay gated culvert separating two

distribution cells. Water intrusi on through the culvert seals and join ts causes erosion at the base of the culvert leading to the fa ilure of the structure. The st ructure can no longer pass the design flows from one cell to another, and repairs are needed to allow the proper flow of water through

the STA.

Complete repair of culver t joints and seals: STA 1E has 44 internal 8 ft-by-8 ft precast segmented concrete box culverts that allow the fl ow of water to be distributed across treatment cells and into the perimeter canal. The SFWMD performed a survey identifying 23 culverts that have degraded joints and seals which may cause fa ilure of the culverts in the future (similar to the problem at S-375.) These conditions must be corrected to prevent culvert failure in the

future.

Complete re-grading of cells 5 and 7: SFWMD commissioned a t opographic survey of STA-1E in 2005. This survey indicated that Cells 5 and 7 (19% of the treatment area) are, on average, 0.73 feet and 1.19 feet too deep, respectively, in relation to th e design elevation. The SFWMD has concluded that the increased depth preven ts the establishment of emergent vegetation growth, and re-grading of Cells 5 and 7 is necessa ry to correct the elevation. The re-grading of the cells will require a significant volume of fill to bring the bottom elevation of the cells up to the appropriate grade. USEPA assumes that, to th e extent practicable, the fill material used for re-grading will be relatively low in TP leg acy concentrations. The USACE and the State (SFWMD) should take all steps possi ble to ensure the top of the fill material in Cells 5 and 7 has low legacy TP concentrations. 45

Trash rakes and screens modifications: During severe tropical ev ents, the amount of floating vegetation at the pump stations exceeds the tras h rake system’s capacity. While the equipment installed by the USACE matches the plans and specifications, the USACE agrees with the SFWMD that the current system will not perform at an acceptable level during a storm event, and the USACE is currently planning to undertake modifications to the trash and rake system.

The State will need to manage STA 1E so th at improved performance of the STA will occur by April 1, 2016.

After the repairs and modifications to STA 1E are complete, it is assumed that within 1 year, the discharge from STA 1E will show reduc tions in the amount of TP released to the Everglades Protection Area. While the STA will not be able to meet the WQBEL until additional flows can be diverted to STA 1W, the improvements in TP loading will benefit the Everglades Protection Area.

45 The USACE indicated to the USEPA that it is assessing the USACE’s responsibility to fund and implement the re-grading of Cells 5 and 7. If the USACE determines it will not complete the re-grading, the State, working with the SFWMD, will need to take the m easures necessary to meet the WQBEL at STA 1E by November 30, 2019. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 32 of
5727 The State (SFWMD) will need to modify S-375 to increase its flow capacity to the design flow of the pump station by November 30, 2017.

The design capacity of the S-375 culvert is not large enough to move adequate flows

from STA 1E to STA 1W to allow STA 1E to ach ieve the WQBEL. SFWMD will either need to enlarge S-375 or build a parallel culvert to properly balance flows across STA 1E and 1W. This modification will also require a 33 U.S.C. Section 408 review since C-51 was originally designed as a federal flood control project and this levee is part of that system. However, given the other actions planned for this STA, this re view will not add to the timeframe for achieving the WQBEL. The modification will need to be accomplished by the date at which flooding begins in expanded STA 1W.

The State will need to begin di verting approximately 47% of th e flow currently going to STA 1E to the expanded STA 1W complex by November 30, 2018.

As discussed above, in order for STA 1E to m eet the WQBEL, the flow to this STA must

be reduced. The flows diverted from STA 1E will be treated in the expanded STA 1W; therefore, the expansion of STA 1W must be completed and ready to accept flows before flows can be diverted away from STA 1E. Based on USEPA’s DMSTA modeling, flows in excess of an annual average inflow volume of 109,000 acre-ft per year must be diverted away from STA 1E for it to perform consistent with WQBEL.

The State will need to provide discharge water fr om STA 1E that is consistent with the WQBEL by November 30, 2019.

STA 1E will continue to be hydraulically ove r-loaded while the STA 1W expansion is under design and construction. Once flows are dive rted away from STA 1E, it will take the STA some period of time to adjust to the new hydrau lic conditions. There are no data from other STAs for estimating the time it takes an existing STA to adjust to new, albeit preferable, hydraulic conditions. Therefore, the estimate of tim e for this adjustment is uncertain. USEPA is estimating, using best professional judgment, that it will take up to 12 months after excess flows are diverted away for STA 1E to begin performing in a manner consistent with the WQBEL. At this point, the STA is to be delivering water to the Everglades Protecti on Area that protects the designated use of the Everglades, and does not lead to an imbalance in flora or fauna. Compliance with the WQBEL will be assessed in accordance with the terms of the conformed NPDES and EFA permit descri bed in Section V.

(ii) Expanded STA 1W: Milestones and Schedule

STA 1W is significantly undersized to treat the current volume of inflow water to meet the WQBEL. In addition, approximately 47% of the current flow going to STA 1E must be diverted to an expanded STA 1W in order for STA 1E to meet the WQBEL. According to modeling conducted by USEPA for this Amende d Determination, a 15,000-acre STA expansion of the STA 1W facility is needed for both ST A 1E and STA 1W to meet the WQBEL. An additional 1,500 acres will be needed for lev ees, berms and canals for a total of 16,500 acres. 46

46 See Attachment H, Table 3, ID 3. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 33 of
5728 At the completion of the project, the expanded STA 1W complex will effectively treat to the WQBEL an annual average inflow vol ume of 321,000 acre-ft per year.

The State of Florida will need to complete the following actions in the timeframes specified below to bring STA 1W to full operation to attain the WQBEL. The requirements are summarized in the table below, and are then discussed in greater detail.

STA 1W Expansion - Summary of Schedule to meet WQBEL

Activity Milestone Date to Complete Activity

Complete land acquisition for 15,000 acre STA expansion (3 years) 47 September 30, 2013

Complete expansion design (2 years) September 30, 2015

Acquire all necessary environmen tal permits needed to begin construction of the STA 1W expansi on (2 months after the end of design) November 30, 2015

STA 1W expansion floodi ng starts (2 years afte r construction starts) November 30, 2017

Complete construction (3 years after permitting); flows from STA

1E can now be diverted to STA 1W November 30, 2018

STA performance consistent with WQBEL (2.5 years after flooding) May 31, 2020

The State will need to complete its purchase (including any land exchange) needed to build a 16,500-acre STA expansion in the easter n flow path by September 30, 2013.

As discussed above, the State announced its intention to purchase 8,900 acres from U.S. Sugar in the northern part of the S5A basin; this purchase is to be finalized in October 2010. The 8,900 acre tract is about 15 miles nor th of STA 1W, by canal. The St ate will either use this land in place as an STA, or exchange this for land adjacent to, or in close proximity to, STA 1W. 48
The SFWMD is evaluating whether a possible ex change could provide land adjacent to the Refuge that is suitable for an STA.

Assuming current flows and loading, this purchase provides approximately 54% of the land needed for the expanded STA. An additio nal 7,600 acres would need to be purchased to

47 Approximately 8,900 acres is currently under contract to be purchased by the SFWMD in the northern S5A Basin from the U.S. Sugar Corporation.

48 USEPA’s modeling is based on an assumption that the expanded STA will be built adjacent to the current STA 1W footprint. If a decision is made to use the 8,900 acre parcel purchased from U.S. Sugar Corporation in its current location, additional modeling will need to be conducted to determine a revised STA expansion acreage needed to meet the WQBEL. It is uncl ear whether use of the northern parcel in place will be as efficient as an expansion adjacent to STA 1W. Additional acreage, beyond 7,600 acres, may be needed under this scenario. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 34 of
5729 meet the STA expansion needs. If there are no re ady and willing sellers in this area, then land acquisition may require the SFWMD to use its full authorities to acquire the land for the needed expansion. Past experience suggest s that this will complicate th e land acquisition process, and lengthen the amount of time to complete the purchase. Given this uncertainty, USEPA’s schedule provides the State three years to complete the process.

The State will need to complete the detailed desi gn including all plans and specifications for the 15,000-acre STA 1W expansion by September 30, 2015.

The detailed design, which is specific to the parcel of land on which the STA is built, requires access to the land for environmental asse ssments, testing, and data collection. The test results and other data provide the information needed for the production of detailed plans and specifications for land leveling, locations and sizi ng of levees, berms, canals and gates, and the hydraulics for how water will be moved into, th rough, and out of the STAs, including the size and locations of pumps.

The State will need to acquire all necessary envi ronmental permits needed to begin the STA 1W expansion construction by November 30, 2015.

See Section III.C.2.(b) above for discussion of the environmental permitting process.

The State will need to have the STA 1W e xpansion site ready for flooding by November 30,

2017.

Approximately two years after construction is st arted, after the external berm and internal levees and gates are built, but before the pum ps and the pump station are completed, the STA 1W expansion will be flooded internally with wate r. This allows the marsh vegetation to begin to establish, and the existing legacy TP loads in the soil within an STA, if any, to be reduced. USEPA is assuming that approximately one year after flooding, the STA will begin demonstrating net improvement in water qualit y at the downstream point within the STA on a consistent basis as compared to the inflow concentration. On ce net improvement has occurred and the pumps and pump stations are completed, the State may begin discharging from the STA to the Everglades Protection Area.

The State will need to complete constructi on of the STA 1W expansion by November 30, 2018.

Construction includes two main phases: 1) the civil works which include land leveling, and construction of levees, canals, gates, a nd other structures; and 2) construction and installation of pumps and pump stations. Therefore, from the end of the permitting phase, USEPA is allowing three years for the comp letion of constructi on, including hydraulic improvements. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 35 of
5730 The State will need to discharge water from the expanded STA 1W facility (including the current STA 1W facility plus the 15,000-acre expans ion) that is consistent with the WQBEL by May 31, 2020.

See Section III.C.2.(b) – STA Performan ce Consistent with WQBEL (above) for a discussion of factors affecting the date by whic h the STA can meet the WQBEL. The expanded STA 1W facility will be built in an area of existing agricu ltural production where significant legacy loads of TP may be present in the soil . The new treatment marsh will need to overcome the legacy loads of soil TP before TP removal fr om the inflow water will begin to occur. The USEPA estimates that it will take the expande d STA facility up to 2.5 years after flooding to begin to perform consistent with the WQBEL. At this point, the STA is to be delivering water to the Everglades Protection Area that protects th e designated use of the Everglades, and does not

lead to an imbalance in flora or fauna. Compliance with the WQBEL will be assessed in

accordance with the terms of the conformed NPDE S and EFA permit described in Section V.

(b) The Central Flow Path

The central flow path drains runoff from th e S-2, S-6, and S-7 basins through STA 2 and STA 3/4 into WCA 2A and 3A. A project is currently well underway to expand the Central Flow Path by 6,800 acres in the Compartment B North Build-Out (Comp B NBO) and Compartment B South Build-Out (Comp B SB O). Modeling conducted by USEPA for this Amended Determination indicates that, even w ith the Compartment B expansions, the Central Flow Path will need an additional 15,600-acre STA expansion to meet the WQBEL. An additional 1,560 acres will be needed for berms, levees and canals for a total additi onal acreage of 17,160 acres. 49

Within the Central Flow Path, there are two large parcels of land currently owned by the State that are designated under the Comprehensiv e Everglades Restoration Program (CERP) as water storage sites. These are the EAA A1 and the EAA A2 compartments. The SFWMD estimates the A1 site to have approximately 15,000 acres of potential ST A effective treatment area, and the A2 site to have approximately 14,000 acres of potential STA effective treatment area. The A1 site is contiguous with STA 3/4 a nd the Comp B NBO and, as such, is strategically located for an expansion of the current STAs.

The A1 site alone is not large enough to fu lfill the complete needs of the Central Flow Path for expanded STA acreage. A portion of the 14,000-acre A2 site, currently owned by the State, could provide the additional acreage need ed without a lengthy land acquisition process. The A2 site is currently designated as a CERP wa ter storage project for fu ture construction. This land is currently under lease-ba ck to farmers and notice will need to be served on those landowners regarding State pl ans to use this site for treatment or storage.

USEPA considered including an option in this Amended Determination for utilizing the A1 site as a deep reservoir in the event th e Consent Decree Court rules to deny the State’s motion for relief in building the A1 site as a re servoir. Such an option has been developed by

49 See Attachment H, Table 3, ID 3. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 36 of
5731 USEPA and can be provided at such time that a decision to deny the State’s motion is issued. However, on August 30, 2010, the Special Master i ssued his Report of th e Special Master (SM Report), recommending the court relieve the SFWMD of its obligation to build the A1 reservoir. The Special Master based that recommendation on changing circ umstances and the affect it could have on the ability to build other restoration projects. "If the District is required to build a reservoir on Compartment A-1, the ability of th e State Parties to expand STA 3/4 by utilizing adjoining land (see Figure 1 above) will be eliminated and the cost to the District of having to build the A-1 Reservoir, make the Cross-Bolles Canal improvements, and build ECART, will significantly foreclose its financial ability to de velop additional STAs to satisfy water quality standards ...." SM Report at 56-57. "The estim ates provided to the Special Master are that something between $724 and $815 m illion would be required to bu ild A-1 Reservoir and related canal improvement projects." SM Report at 58. Based on the Special Ma ster’s Report, USEPA is including in the Amended Determination one remedy based on an STA expansion in the A1 compartment. Should the Consen t Decree Court rule to deny the State’s motion, the alternative remedy for A1 as a deep storage reservoi r can be provided in a timely fashion.

(i) STA 2, STA 3/4 and Compartmen t B: Milestones and Schedule

USEPA is assuming in this remedy that the A1 site will be utilized in full as a 15,000- acre STA. Any additional STA acreage needed can be obtained from the A2 site. Since the A1 site provides 15,000 acres of effective STA tr eatment area, an approximate 600-acre STA expansion will be needed at the A2 site. (Any remaining area within the A2 not needed as an STA could be developed for water storage.) USEPA believes the WQBEL can be attained in STA 3/4 and Comp B NBO by December 31, 2014 if the A1 site is first util ized as an interim shallow storage reservoir, and late r converted to an STA. This w ill allow water to be stored in the A1 site and allocated to STA 3/4 and Comp B NBO at a flow and TP load that can meet the WQBEL. 50 The remaining central basin flows will be directed to STA 2 and the Comp B SBO. STA 2 and Comp B SBO will achieve the WQB EL when the A1 site and A2 site STA expansions are designed, built, and in operati on. The SFWMD will need to make improvements in the canal conveyance from the S6 Basin to th e expanded STAs in the Central Flow Path (such as the Cross-Bolles Canal system) to divert fl ows away from STA 2 a nd Comp B SBO in excess

of the volume that can be effectiv ely treated to the WQBEL. At the completion of these projects, the Central Flow Path STA complex will be discharging to WCA 2A and WCA 3A about 987,000 acre-ft of average annual flow (see Attachment H).

50 See Attachment H, Table 3, ID 5. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 37 of
5732 The State of Florida will need to complete the following actions in the timeframes specified below to bring STA 2 and Compartment B SBO to full operation to attain the WQBEL. The requirements are summarized in the table below.

STA 2 and Comp B SBO: Summa ry of Schedule to Meet WQBEL (A1 and A2 utilized as STAs) Activity Milestone Date to Complete Activity

Assumes Consent Decree Court Rules on use of the A1 site September 30, 2011

Complete NEPA review for land use change of A1 and A2 May 31, 2013

Complete Design for STA in A1 and A2 (2 years after Consent Decree Court rules on use of A1) September 30, 2013

Acquire all necessary envir onmental permits needed to begin construction of STAs in A1 and A2 (2 months after design is complete) November 30, 2013

Expansion flooding in A2 starts (2 years afte r construction begins) November 30, 2015

Complete construction of STAs in A1 and A2 (3 years after

p ermitting) November 30, 2016

Complete improvements in the canal conveyance from S6 to expanded STA 3/4 complex (A1 and A2 STAs) December 31, 2016

STA 2 and the Comp B SBO ST A performance consistent with the WQBEL (2.5 years after flooding) May 31, 2018

The State will need to work with the federal agen cies to complete the required NEPA review by May 31, 2013. 51

Before any progress can be made on design and construction of an expanded STA on the A1 site, the Court in the Consent Decree Case must grant the State’s motion for relief from building the site as a reservoir. If the decision in the Consen t Decree Court is made one year from now and the ruling is in favor of the State, the State can file a new permit application with the USACE who can begin the NEPA process to ch ange the use of the A1 site and a portion of the A2 site from water storage to an STA. Th e estimated timeframe for completion of the NEPA process is approximately 1.5 years. USEPA en courages the USACE and the SFWMD to use an efficient approach to conducti ng the required NEPA review.

51 As noted above, there is a potential for one NEPA analysis to be completed for all of these projects. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 38 of
5733 The State will need to complete the detailed desi gn including all plans and specifications for the A1 and A2 STA expansion by September 30, 2013.

USEPA is assuming that a detailed design for co nverting the use of the A1 and part of the A2 compartments from a reservoir to a STA can begin as soon as the Cons ent Decree Court rules

on the A1 case. SFWMD should have access to th e land immediately to begin testing and other

data collection since the land is currently owned by the State. Gi ven these assumptions, the State will need to complete the detailed design within two years after a decision is reached by the

Court in the Consent Decree Case.

The State will need to acquire all necessary envi ronmental permits needed to begin construction on the A1 and A2 expansion by November 30, 2013.

See Section III.C.2.(b) above for di scussion of the permitting process.

The State will need to have the A2 expans ion site ready for flooding by November 30, 2015

.

Approximately two years after construction is st arted, after the external berm and internal levees and gates are built, but before the pumps and the pump station are completed, the STA expansion will be flooded internal ly with water. This allows marsh vegetation to begin to establish itself within the STA, and the existing le gacy TP loads in the soil within an STA, if any, to be reduced. USEPA is assuming that approximately one year after flooding, the STA will begin demonstrating net improvement in water qu ality at the downstream point within the STA on a consistent basis as compared to the infl ow concentration. Once net improvement has occurred and the pumps and pump stations are co mpleted, the STA can begin discharging to the Everglades Protection Area.

The State will need to complete construction of the A1 and A2 expansions by November 30,

2016.

Construction includes two main phases: 1) the civil works which include land leveling, and construction of levees, canals, gates, a nd other structures; and 2) construction and installation of pumps and pump stations. USEPA is allowing three years for construction, including hydraulic improvements.

The State will need to complete improvements in the canal conveyance from S6 basin to the A1/A2/STA 3/4 complex by December 31, 2016.

STA 2 and Comp B SBO are not adequately sized to treat all flows from the S6 Basin. To avoid a lengthy land acquisition process to buy land adjacent to STA 2, USEPA’s remedy will need the State to improve canal conveyance to move water away from STA 2 and Comp B SBO to STA 3/4 and the A1/A2 expansions. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 39 of
5734 The State will need to provide discharge water from the expanded A1 and A2 facilities (including the current STA 2 and Comp B SBO fac ilities) that is consistent with the WQBEL by May 31, 2018.

The expanded A1/A2 facility will be built in areas where some of the land has been lying fallow (the A1 compartment), and some of the land is in current agricultur al production (the A2 compartment). A portion of the new treatment ma rsh may need to overcome legacy loads of soil

TP before TP removal from the inflow water will begin to occur. USEPA estimates that it will take the expanded STA facility 2.5 years after flooding to begin to perform consistent with the WQBEL. At this point, the STA is to be deliv ering water to the Everglades Protection Area that protects the designated use of the Everglades and does not lead to an imbalance in flora or fauna. Compliance with the WQBEL will be assessed in accordance with the terms of the conformed NPDES and EFA permit described in Section V.

The State of Florida will need to complete the following actions in the timeframes specified below to bring STA 3/4 and the Comp B NBO into full attainment with the WQBEL. The requirements are summarized in the table below.

STA 3/4 and Comp B NBO - Summary of Schedule to meet the WQBEL

A1 as FEB and later converted to STA + A2 STA

Activity Milestone Date to Complete Activity

Assumes Consent Decree Court rules on use of

the A1 site September 30, 2011

Complete NEPA review for land use change of

A1 and A2 May 31, 2013

Complete design for A1 interim shallow storage

reservoir May 31, 2013

Acquire all necessary environmental permits needed to begin construction of A1 as interim shallow storage reservoir (2 months after design is complete) July 31, 2013

Complete construction a nd begin diverting flows to the A1 interim shallow storage reservoir (8 months after permitting) March 31, 2014

STA 3/4 and Comp B NBO performance consistent with WQBEL (9 months after flows diverted to A1 FEB) December 31, 2014 Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 40 of
5735 The State will need to work with the federal agen cies to complete the required NEPA review by May 31, 2013.

Before any progress can be made on design and construction of an expanded STA on the A1 site, the Court in the Consent Decree Case must grant the State’s motion for relief from building the site as a reservoir. If the decision in the Consen t Decree Court is made one year from now and the ruling is in favor of the State, the State can file a new permit application with the USACE who can begin the NEPA process to ch ange the use of the A1 site and a portion of the A2 site from water storage to an STA. Th e estimated timeframe for completion of the NEPA process is one year and eight months. USEP A encourages the USACE and the SFWMD to use an efficient approach to conduc ting the required NEPA review.

The State will need to complete the detailed desi gn including all plans and specifications for the A1 interim shallow storage reservoir by May 31, 2013.

Some construction has already o ccurred at the A1 site for a reservoir. Some perimeter berms are in place, grubbing and clearing have o ccurred, and some land leveling activities have taken place. USEPA is assuming that a detailed de sign for converting the use of the A1 parcel to an interim shallow storage reservoir can begin as soon as the Consent Decree Court rules on the A1 case. Given these assumptions, the State will need to complete the detailed design within approximately one year and eight months after a decision is reach ed by the Court in the Consent Decree Case. This design process will run in parallel with the NEPA process for changing the use of the A1 compartment from storage to treatment.

The State will need to acquire all necessary envi ronmental permits needed to begin construction on the A1 interim shallow storage reservoir by July 31, 2013.

See Section III.C.2.(b) above for discussion of the permitting process. The schedule for A1 interim shallow storage reservoir allows the State one year and ten mo nths after the Consent

Decree Court rules on the A1 site to obtain the necessary permits fo r constructing the A1 site as an interim shallow storage reservoir.

The State will need to have construction of th e A1 site interim shallow storage reservoir complete and flooded by March 31, 2014

.

It is assumed by USEPA that the A1 site can be constructed as a sh allow storage reservoir by March 31, 2014. The State has already made si gnificant progress in building this site as a reservoir, and it is assumed that completing cons truction (which involves finishing the external berm) can be accomplished quickly.

The State will need to provide discharge wate r from STA 3/4 and the Comp B NBO facilities

that is consistent with the WQBEL by December 31, 2014.

Once flows can be diverted to the A1 interi m shallow reservoir, the STA 3/4 and Comp B NBO STAs can begin to adjust to the new favorable hydraulic conditions. STA 3/4 has been performing well even at the current over-loaded conditions. USEPA is assuming that STA 3/4 Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 41 of
5736 and Comp B NBO will take nine months to adju st and begin to perform consistent with the WQBEL. See Section III.C.2.(b) – STA Perfor mance Consistent with WQBEL (above) for a discussion of factors affecting the date by which the STA can meet the WQBEL.

(c) The Western Flow Path

The Western Flow Path drains runoff from the C-139 basin and some runoff from the S-3 and S-8 basins through STA 5 and STA 6 into di scharge canals that ulti mately discharge to WCA 3A. A project is well underway to e xpand STA 5 and STA 6 by 4,100 acres in the Compartment C build out. Modeling conducte d by USEPA for this Amended Determination indicates that, even with the Compartment C expansion, the Western Flow Path will need a 7,000-acre FEB to meet the WQBEL in STA 5, STA 6 and Compartment C.

Compartment C is currently under construc tion, and is planned for completion in February 2012. Construction was recently halted in response to the discovery of cultural resources. Consultation among the SFWMD, Seminole and Miccosukee Tribes, the State

Historic Preservation Office a nd the USACE is being reini tiated under section 106 of the

National Historic Preservation Ac t 16 U.S.C. 470 (1966). Upon co mpletion of this consultation process, the SFWMD plans to report to the Sp ecial Master in the C onsent Decree Case on the

costs and timelines associated with remediation of the cultural resource sites. The deadline for completion of this process is not known at this time. 52

USEPA is assuming these issues will be resolved and Compartment C will remain on schedule to be flooded in the 2012 wet season (a pproximately July 2012). Once Compartment C is operational, some inflows currently going to STA 5 and STA 6 can be diverted toCompartment C for treatment. This diversion to Compartment C will reduce the hydraulic overloading in STA 5 and STA 6 and improve their ov erall performance, resu lting in less TP loading to the Everglades. However, until the addi tional 7,000-acre FEB is operational, STA 5, STA 6 and Compartment C will be unable to meet the WQBEL.

USEPA explored the concept of requiring th e State to meet the WQBEL in the existing STA 5 and STA 6 facilities shortly after flows could be diverted to Compartment C, and

concluded the STAs will not be able to meet the WQBEL until the C-139 FEB facility is built and operational. STA 5 and STA 6 have performa nce problems related to hydraulic over-loading during the wet season and dry-out of portions of the STA during th e dry season. Soils in STA 5 and STA 6 are sandy and far more permeable than the peat or muck soils in the central and eastern flow paths. As a result, water seeps through the soils into the ground water during the dry season causing dry-out of the STAs. When the dry part of the STA is re-flooded with water,

TP from the soils is released in to the water column, causing spikes in the outflow of the STA. This drying-out is associated w ith poor performance in STA 5 a nd 6, and may also result in poor performance in Compartment C. Given current performance issues in STA 5 and STA 6, these STAs will need to operate as a unit with the Compartment C and the C-139 FEB in order for effective treatment to occur. Therefore, ST A 5, STA 6, and Compartment C will not meet the WQBEL until the STA expansion is fully operational.

52 See South Florida Water Management District’s Response s to Questions Posed by the Special Master During the Hearing on July 26-30, 2010. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 42 of
5737 The SFWMD recently announced a pending pur chase of 17,900 acres of citrus groves from the U.S. Sugar Corporation in the C-139 basi n annex. This purchase is to be finalized in October 2010. This large parcel of land is locat ed west of, and adjacent to, Compartment C and STA 6, making it an optimal location for the e xpansion of the STA 5/STA 6/Compartment C complex. Therefore, even though land acquisition is needed in th e Western Flow Path, this does not significantly lengthen the schedule for meeting the WQBEL since land acquisition is anticipated to be complete appr oximately two months after the Amended Determination is filed (or by November 2, 2010). 53

When Compartment C and the 7,000-acre FEB are fully operational, the western STA complex including STA 5, STA 6, Compartment C, and the C-139 FEB will be capable of treating the existing run-off from the C-139 ba sin (an average annual inflow volume of 200,000 acre-ft per year) to the WQBEL.

(i) STA 5, STA 6, Compartment C, and C-139 expansion: Milestones and Schedules

The State of Florida will need to complete the following actions in the timeframes specified below to bring Compartment C to full operation. The requirements are summarized in

the table below.

STA 5, STA 6 and Comp C - Summary of Schedule to meet the WQBEL

Activity Milestone Date to Complete Activity

Complete construction of Compartment C February 29, 2012 54

Compartment C is flooded (in 2012 wet season after cultural resource issue resolved) July 1, 2012

Begin discharge from Compartment C (1.5 yrs after flooding) January 1, 2014

Improved performance of STA 5 and STA 6 (1 yr after diverting flows to Comp C) January 1, 2015

Complete construction of C-139 expansion and begin to divert flows away from STA 5, STA 6 and Compartment C September 30, 2016

53 USEPA is assuming the State’s purchase of the U.S. Sugar Corporation property in the C-139 Basin will be finalized in November 2010. If this land acquisition is no t finalized, this could affect the schedule for meeting the WQBEL in the Western Flow Path.

54 This date is contingent upon completion of the cultural resource concerns in Compartment C. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 43 of
5738 STA 5, STA 6, Compartment C complex

p erforming consistent with the WQBEL (1 year to adjust to new hydraulic condition) September 30, 2017

The State will need to complete constr uction of Compartment C by February 29, 2012.

Compartment C is currently under construction. The levees and canals are scheduled to be completed by December 2010. The pumps and pump station will be fully operational by February 2012. USEPA is assuming issues with cultural resources, which have halted work in Compartment C, will be resolved so that the following schedule can be met. USEPA is also assuming that Compartment C will be completely flooded during the 2012 wet season (late spring to early summer). Once discharge from Compartment C begins, a portion of the inflows currently being treated by STA 5 and STA 6 can also be treated by Compartment C.

The State will need to have Compar tment C ready and flooded by July 1, 2012.

In the case of the Western Flow Path, USEP A is assuming that flooding is likely to only be possible during the wet season. In this case, while the external berm and internal levees may be complete in the Fall of 2011, flooding will occur in the wet season of 2012.

The State will need to have Compartment C sh owing net improvement and begin discharging by January 1, 2014.

After flooding, marsh vegetation can begin to es tablish itself within the STA, and the existing legacy TP loads in the soil within th e Compartment C STA, if any, can be reduced. Once the Compartment C STA begins demonstrating net improvement in water quality at the downstream point within the STA on a consistent basis as compared to the inflow concentration, the SFWMD may begin discharging to th e Everglades Protection Area.

The State will need to manage STA 5 and STA 6 so that improved performance of the STAs will occur by January 1, 2015.

After excess flows are diverted away from STA 5 and STA 6 to Compartment C, it is assumed that within one year, the discharges fr om STA 5 and STA 6 will show reductions in the amount of TP released to the Everglades Protec tion Area. While the STAs will not be able to meet the WQBEL until flows can be diverted to the C-139 expansion, the improvements in TP loading will benefit the Ever glades Protection Area.

The State will need to complete construc tion of the C-139 expansion by September 30, 2016.

Construction includes two main phases: 1) the civil works which include land leveling, and construction of levees, canals, gates, a nd other structures; and 2) construction and installation of pumps and pump stations. USEPA is allowing three years for construction, including hydraulic improvements. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 44 of
5739 The State will need to discharge water from th e STA 5/STA 6/ Compartm ent C complex that is consistent with the WQBEL by September 30, 2017 and consistent with the water quality

standards for the downstream Miccosukee and Seminole Tribal waters.

The C-139 FEB is in areas that are currently in citrus production. The past construction of STAs in areas of prior citrus production has not demonstrated large legacy loads of soil TP. Since this FEB will operate in series with ST A 5, STA 6 and Compartment C and will discharge through STA 5, STA 6, or Compartment C, the FE B is not required to directly meet the WQBEL, but flow equalization in this upstream facility co ntrols when STA 5, STA 6, and Compartment C will meet the WQBEL. It is assumed that it will take STA 5, STA 6, and Compartment C one year after the hydraulic load ing is reduced to adjust to the new hydraulic condition. At this point, the STAs will be deliv ering water to the Everglades Protection Area that protects the designated use of the Everglad es, and does not cause an imbalance in flora or fauna. Compliance with the WQBEL will be dete rmined in accordance with the provisions of the conformed NPDES and EFA permit for this STA discussed in Section V.

C-139 Expansion - Summary of Dates

Activity Milestone Date to Complete Activity

Complete land acquisition for C-139 FEB November 30, 2010

Complete NEPA Review May 31, 2013

End of design for C-139 FEB (2 years after land acquisition) June 30, 2013

Acquire all necessary environmental permits needed to begin construction of the C-139 expansion (one year and ten months after end of design) August 31, 2013

C-139 expansion flooding starts (in wet season following 1 year and 10 months after construction starts) July 1, 2015

Complete construction of C-139 expansion (3 years after permitting) September 30, 2016

Flows now going through the C-139 FEB into STA 5/6 and Comp C September 30, 2016

The State will need to complete its purchase of 8,800 acres needed to build a FEB in the C-139 annex by November 3, 2010.

The State announced a pending purchase of 17,900 acres in the C-139 annex. The purchase is to be finalized in October 2010. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 45 of
5740 The State will need to work with the federal agen cies to complete the required NEPA review by May 31, 2013.

In order to obtain a CWA Section 404 perm it to build an FEB in the C-139 basin, a

NEPA review will need to be conducted. The USACE can begin the NEPA process as soon as the land purchase is finalized. The USACE is cons idering the development of a regional EIS. In this case, the NEPA process for the C-139 FEB w ill be on the same schedule as the EIS for the Central Flow Path. The estimated timeframe for completion of the NEPA process is approximately two years and seven months. USEPA encourages the USACE and the SFWMD to use an efficient approach to c onducting the required NEPA review.

The State will need to complete the detailed desi gn including all plans and specifications for the 7,000-acre FEB in the C-139 annex by June 30, 2013.

The detailed design, which is specific to the parcel of land on which the STA is built, requires access to the land for environmental asse ssments, testing, and data collection. The test results and other data provide the information needed for the production of detailed plans and specifications for excavation, berms, canals and ga tes, and the hydraulics for how water will be moved into, through, and out of the FEB, in cluding the size and locations of pumps.

The State will need to acquire all necessary envi ronmental permits needed to begin construction on the C-139 FEB by August 31, 2013.

See Section III.C.2.(b) above for disc ussion of the environmental permitting.

The State will need to start flooding the C-139 FEB in the 2015 wet season by July 1, 2015.

Approximately two years after construction is st arted, after the external berm and internal levees and gates are built, but before the pum ps and the pump station are completed, the FEB may be flooded internally with water. However, in the case of the western STAs, USEPA is assuming that flooding is likely to only be possible during the wet season.

The State will need to complete construc tion of the C-139 expansion by September 30, 2016.

Construction includes two main phases: 1) the civil works which include land leveling, and construction of levees, canals, gates, and other structures; and 2) construction and installation of pumps and pump stations. USEPA is allowing three years for construction, including hydraulic improvements.

The State will need to begin di verting flows through the C-139 e xpansion and into STA 5, STA 6 and Compartment C by September 30, 2016.

As soon as construction is complete on the C-139 FEB, flows can be diverted away from STA 5, STA 6, and Compartment C into the C-13 9 FEB. From the C-139 FEB, flows will be Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 46 of
5741 allocated to STA 5, STA 6, and Co mpartment C at a rate that th e TP loading can be treated by the STAs to the WQBEL.

IV. Measure and Submit Annual Reports on Cumulative Impacts until Water Quality

Standards Attained

Pursuant to the 2010 Order at 45, the State is directed to “m easure on a yearly basis the cumulative impacts and effects of phosphorus intr usion beyond the 10 ppb standard within the Everglades Protection Area until such time as full compliance with the 10 ppb standard is achieved.” Monitoring and reporting was a criti cal element of the enforceable framework in

USEPA’s 1999 Determination. At that time there was an ex tensive monitoring and reporting program in place that met those requirements. This program continues today. 55 The FDEP and SFWMD currently have a monitoring program for assessing TP throughout the Everglades Protection Area with results reported in the annual South Florida Environmental Report (SFER).

However, there are enhancements to this m onitoring program that would be needed to fully address the Court’s 2010 Order to monitor a nd report on cumulative effects. Therefore, USEPA is directing FDEP to conduct or perform other actions related to monitoring of TP and its cumulative impacts in the Everglades Protecti on Area. In addition, the SFER needs to report

on an annual basis the total volume of water discha rged into the Everglades Protection Area from the EAA and C139 Basins, the annual FWM TP c oncentration, and the TP load. The SFER also needs to report the loads of TP that would have been discharged had the annual FWM TP concentration been at 18 ppb and the annual GM TP concentration been at 10 ppb (WQBEL).

A. Rectify two limitations with the current application of the total phosphorus water quality criterion in the Everglades Protection Area. The State is to review the application of the fourpart test and submit to USEPA a methodology for how it intends to address the two deficiencies specified below by January 31, 2011.

The TP criterion rule for the Everglades Pr otection Area includes a four-part assessment methodology (four-part test) that was affirmed by the Court in 2008. (F.A.C. 62-302.540(4)). The purpose of this test is to assess whethe r or not the long-term (decades) 10 ppb geometric mean criterion is being achieved on a short-term (annual) basis. The four-part test places upper limits on TP concentration in the Everglades mars h using temporal and spat ial scales to limit the variability or range of TP concen trations throughout the Everglades to the variability observed at the unimpacted marsh reference sites. The objectiv e is to determine whether the TP criterion is met throughout all of the Everglades Protection Ar ea. Results are reported annually by FDEP in the SFER. As of 2009, FDEP applies the four-p art test via a networ k of 58 water quality sampling stations within the Refuge, WCA2 and WCA3 (2010 SFER 3A-11 to 3A-14, Appendix 3A-6). However, there are two limitations with the State’s current application of the four-part test to the Everglades Protection Area.

55 Subsection (4)(d) [Everglades research and monitori ng program] specifically identifies the research and monitoring required as well as the submission of an a nnual report (providing the results of the research and monitoring) to the Legislature. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 47 of
5742 (1) Failure to consistently assess achievemen t of the criterion in drier parts of the Everglades Protection Area : The first limitation involves the lack of application of the TP criterion to drier portions of the Refuge and nor thwestern WCA3A. At the time that the TP Rule was approved in 2005, the four-part test station ne twork was being established. Paragraph 7 of the Rule incorporates a data quality screening protoc ol that limits the appli cability of the Rule to only those stations that have a minimum of six months of data within a given water year. Now that five years of data are available (2010 SFER Appendix 3A-6), it has b ecome apparent that a consequence of this six-minimum sample require ment is that from 2005 to 2009, the TP criterion typically was not consistently applied to two dr ier portions of the Everglades Protection Area: three stations in the Refuge (A108, LOX 3 a nd LOX 5) and one sta tion in WCA3A (CA35) immediately north of the Federal Reservation of the Miccosukee Tribe of Indians of Florida. This latter station is of particular interest because it is FDEP’s only four-part test station upstream of these tribal waters that can assure that the downstream waters are protected as required by the CWA.

To correct this limitation, FDEP needs to asse ss the application of the four-part test every five years and assure that the cr iterion is applied in a manner th at is protective of these drier portions of the Everglades Protection Area. FDEP should report the fi rst review with any suggested corrective measures to USEPA by January 31, 2011.

(2) Gaps in the spatial coverage of th e monitoring network in the Refuge (WCA1) : The application of the four-part test needs minor adjustment to the sta tion locations within the Refuge in order to fill in gaps in the spatial coverage. Tw o stations need to be added to the four-part test network in the Refuge; a station midway be tween X4 and LOX 11, and a station midway between LOX 7 and LOX A137. See page 3A-11 of the 2010 SFER.

B. Prepare an annual report due on March 1 of each year starting on March 1, 2011 summarizing TP water quality, vegetation, and soils data from each transect monitoring site. The report must provide a summary of whether the TP conditio ns at each site are improving, worsening, or remaining unchanged.

Sampling along transects downstream of the STAs is necessary to determine the extent of phosphorus intrusion into the Everglades ma rsh due to STA discharges above the 10 ppb WQBEL, and to determine whether these discharges cause or contribute to violations of water quality standards. This type of sampling is usef ul for understanding the spa tial extent of impacts, as well as changes in condition, including improve ment, at a location over time. STA 1E and 1W discharge directly into the Refuge. The discharge from STA 2 presently travels two miles in a canal before it flows into the Everglades Protection Area. The EFA permits for these STAs currently require downstr eam monitoring along transects. The conformed 56 NPDES permits for these three STAs will also require monitoring al ong transects downstream of the STA discharge for the purpose of documenting TP intrusion into the Everglades Protection Area, and determining whether STA discharges are causin g or contributing to water quality standards violations and are causing ot her ecological impacts.

56 As described in more detail in section V.A., USEPA is providing a strikethrough “conformed” version of all current STA NPDES and EFA permits in Attachment I. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 48 of
5743 In addition to requiring annual reporting of monthly monitoring for surface water TP concentration, the soil TP concentration must also be determined at the transect stations in the 0- 10 cm soil profile once every two years. Also, be ginning in the dry season of 2011, the extent of macrophyte indicators of phosphorus enrichment such as, but not limited to, cattail, will be quantified each year during the dry and wet seasons using established methods. 57 Any modification to the monitoring plan or methods must be pre-approved by USEPA. If future modifications to water delivery patterns result in water from STA3/4 being discharged directly southward into WCA3A, then the same transect monitoring program will be required in the STA3/4 NPDES permit beginning two years before discharge. 58 The conformed permits reflect these requirements.

C. Assure that stratified random sampling is c onducted every five to seven years throughout the Everglades Protection Area in order to document soil TP conditions and temporal trends. The next sampling is to be completed by December 2012 59 (unless an adjustment to this date is needed to integrate with monitoring conducted th rough the CERP) and a final report provided to the USEPA by December 2013.

An additional monitoring design is required in order to quantitatively determine the magnitude, extent, and expansion of phosphorus pollution and cumulative impacts throughout all of the Everglades Protection Area. Phosphorus leve ls in soil are a key indi cator of enrichment. Various sampling designs have been previously used by scientists in the Everglades to make quantitative statements about soil phosphorus. 60

By January 31, 2011 the most appropriate samp ling design will be determined subject to review by USEPA. This will include the specific location and number of sampling stations. The design will be subjected to scientific review and submitted to USEPA for approval by February 28, 2011. This monitoring effort should be integr ated as appropriate w ith monitoring conducted through the CERP or other restor ation or natural resource management activities. This comprehensive monitoring and reporting program will ensure that the progress being made in restoration of the Everglades can and will be doc umented. This will also ensure that as the additional STAs or FEBs are being constructed, the status of the Everglades will be monitored to document further degradation or improvement. Ultimately, this program will provide some of

the information needed to determine whether restoration is complete.

57 SFWMD 2010 Project WCA-2A Monitoring Plan for STA 2 and Compartment B Build-out Downstream Monitoring Plan . SFWMD-FIELD-MP-071-01. (January 20, 2010)

58 Part of the long term goal of Everglades restoration is to restore sheetflow to the Everglades that will require modification to how the water is delivered to the Everglades Protection Area.

59 The most recent sampling for soil TP throughout the Ev erglades was completed in 2008 for WCA 2 and in 2005

for the rest of the Ever glades Protection Area.

60 Previous soil TP sampling efforts have sampled about 200 to 1000 individual sites per event, with the specific location and number of sample stations determined by different scientific and statistical methods, each of which has strengths and weaknesses. The District has used a grid approach and a stratified random design (2006 SFER at 6-49 to 6-50). USEPA R-EMAP has used a stratified version of a random probability-based design. This approach allows quantitative determinations across space about the stat us of an ecological condition, such as in 2005 soil TP exceeded 500 mg/kg in 24.5 +/- 6.4% of the Everglades Prot ection Area. (see Scheidt, D. J. and P. I. Kalla. 2007. Everglades ecosystem assessment: water management, water quality, eutrophication, mercury contamination, soils and habitat. Monitoring for adaptive management: a R-EM AP status report. USEPA 904-R-07-001. United States Environmental Protection Ag ency, Atlanta, Georgia.) Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 49 of
5744 D. Assure that maps that accurately depict the spatial extent of cattail and a summary report are completed on a recurring basis for the Refuge, WCA 2, WCA 3, and the Park. The first report and maps are to be completed by dates detailed below (unless an adjustment to this date is needed to coordinate with monitoring conducte d through the CERP) and a final report provided to the USEPA by dates detailed below.

Vegetation maps have been used to documen t the spatial extent and spread of cattail throughout the Everglades Protection Area. 61 Maps that accurately depi ct the extent of cattail, a biological indicator of phosphorus enrichment a nd imbalance, are to be completed for each region of the Everglades Prot ection Area (the Refuge, WCA2, WCA3 and the Park). These efforts should be integrated as appropriate with monitoring conducted through the CERP. The summary report must quantify the extent of catta il and the rate of expansion, if any, throughout the Everglades region. Deadlines for acquiring th e imagery and completing the cattail maps and report are as follows:

Region Date of most recent cattail map imagery Image Acquisition Cattail Map and Report Completed

WCA2A 2003 March 2011 March 2012

WCA3A and

WCA3B 2004 March 2012 December 2014

Refuge 2004 March 2013 March 2014 Park (freshwater) 2009 March 2014 December 2015

V. NPDES and EFA Permits

In this Amended Determination, USEPA’s de velopment and descri ption of the WQBEL in section III.B, in accordance with the Court's 2010 Order, supports the effective implementation by the State of its NPDES program authority under section 402(b) of the CWA. USEPA has oversight authority over the State's program to help ensure its effective implementation, including the authority to object to state permits and issue a federal permit where a state's proposed permit is outside the guidelines and requirements of the CWA. The 2010 Order established that the permits must be conformed based on the court’s finding that FDEP violated the injunction in the Court’s 2008 Order on Su mmary Judgment by taking action in “administrative orders” that are incorporated into NPDES permits and that provide for an extended compliance period for attainment of the water quality standards for phosphorus under the NPDES permits. 2010 Order at 18-21. After FD EP conforms the NPDES permits to include the WQBELs, judicial review of th e conformed permits would be avai lable in Florida tribunals.

61 Rutchey, Ken, Ted Schall and Fred Sklar. 2008. Development of vegetation maps for assessing Everglades restoration progress. Wetlands 28(3):806-816; Sklar, F. T. Dreschel and K. Warren. 2009. Chapter 6: Ecology of the Everglades Protection Area. In 2009 South Florida Environmental Report – Volume I. South Florida Water Management District and Fl orida Department of Environmental Protec tion. West Palm Beach, Florida. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 50 of
5745 A. Conforming STA NPDES Permits and EFA Permits.

Pursuant to the Court’s Order, FDEP is dire cted to take the follo wing actions related to the existing NPDES and EFA permits for discharges from the STAs:

1. Conform all existing STA NPDES and EFA permits to the CWA, the Court’s 2008 Order, and the Court’s 2010 Order, by eliminating all refere nces to the non-conforming elements of the Long-Term Plan, the moderating provisions, and any extended compliance schedules through

2016.

2. Incorporate into conformed pe rmits a WQBEL as identified in this Amended Determination.

3. Conform all permits within 60 days of this Amended Determination.

Attachment I to this Amended Determinati on includes a redline/strikethrough version of each current STA NPDES and EFA permit that USEPA has prepared for use by FDEP that

addresses the Court’s Order th at all non-conforming elements of the existing permits be eliminated. USEPA has also prov ided specific instructions in th e Attachment I permits that: 1) incorporate the WQBEL, including added prov isions for providing early warning of possible non-compliance with the WQBEL and reporting ex cess TP loads if the WQBEL is not met; 2) update various items that must be include d in each Annual Report; 3) update the pollution prevention and operations plans; and 4) require various water qua lity, vegetation, and sediment monitoring in downstream Everglades marsh transect s to enable future evaluation of the extent of phosphorus intrusion due to STA discharges and evaluation of the extent to which STA discharges cause exceedances of water quality st andards (as required in Section IV.B. above). A detailed explanation of USEPA’s changes to the Attachment I permits is provided in

Attachment J.

B. Elimination of Compliance Schedules in NPDES and EFA Permits for Discharges into the Everglades Protection Area

Florida’s implementing regulations have a general provision authorizing compliance schedules for new or revised water quality standards. 62 That State statutor y provision, at section 403.0885, mirrors the federal NPDES re gulation regarding compliance schedules in permits at 40 C.F.R. § 122.47. This is the provision unde r which FDEP included the administrative orders/compliance schedules in the current STA permits. USEPA’s previous approval in

USEPA's 1999 Determination authorized a co mpliance schedule based on section 403.0885 for

62 EPA’s interpretation of the CWA sec tion 301(b)(1)(C), articulated in In the Matter of Star-Kist Caribe, Inc ., 3 E.A.D. 172, 175, 177 (1990), is that the section’s July 1, 1977 deadline for meeting WQBELs prohibits compliance schedules only for water quality standards adopted and approved before July 1, 1977. EP A interprets section 301(b)(1)(C) to allow for compliance schedules in permit s for WQBELs based on post-1977 water quality standards, provided that state law clearly indicates, either in wa ter quality standards or implementing regulations, that compliance schedules are authorized. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 51 of
5746 EFA subsection (4)(f)(4), that lapsed on Decembe r 31, 2006. In the 2010 Order, in addition to finding that the 2006 date cannot be extended as it relates to subs ection (4)(f)(4), the Court also found that FDEP may no longer rely on the section 403.0885 provision to authorize compliance schedules in STA permits. Thus, while Florid a has a general provision authorizing compliance schedules for WQBELs, for CWA purposes, the St ate’s specific deadline for the Everglades Protection Area (December 31, 2006 ) is controlling for discharg es of phosphorus into the Everglades Protection Area. Attachment I reflect s the necessary revisions to remove compliance schedules (or Administrative Or ders under Florida regulation) from the permits. Therefore, compliance schedules for WQBELs in the NPDE S and EFA permits for discharges into the Everglades Protection Area are no longer authorized.

Further extensions of time for compliance with the required WQBELs in an NPDES or EFA permit for STA discharges might be author ized if FDEP develops and USEPA approves a variance from the water quality standard that recognizes th e existing impairment to the designated use and downgrades the use after USEPA approval of a use attainability analysis. Absent a regulatory revision, schedules for co ming into compliance with WQBELs could be included in an appropriate enforcement mechan ism (see discussion in Section VI below).

While both USEPA regulations (at 40 CF R Part 131) and the 2010 Order (at 11) recognize the ability and processe s that states may use to downgr ade the designated uses of a water body, either through short-te rm recognition of an impaired use with a variance or for a more extended downgrade after th e completion of a use attainab ility analysis, USEPA does not advocate either approach because USEPA believes the designated uses are attainable. Moreover, with regard to the timely implementation of a dditional control measures, any such revisions to the water quality standards would require additi onal time and personnel to proceed through the state’s rulemaking process, thus diverting t hose resources from achieving the shared water quality goals for the Everglades Protection Area.

FDEP will need to submit the conformed NP DES permits to USEPA for review. USEPA will review the permits to confirm that FDEP has conformed the permits consistent with the CWA and its implementing regulations, the Cour t’s Orders, and this Amended Determination. 63

Pursuant to the Court’s 2010 Order, FDEP must conform its permits within 60 days (November 2, 2010).

C. Initiation of Withdrawal of State Aut hority to Issue New NPDES Permits or Future

Modifications of NPDES Permits for Discharges Into, or Within, the Everglades Protection Area

The Court’s Order directed USEPA to “immed iately initiate and carry out its authority

under Section IX of the Memora ndum of Understanding to wit hdraw approval of the State program pertaining to issuance of any new NPDES permits for discharges into, or within, the Everglades Protection Area, or for any futu re modifications to existing NPDES permits (including through State of Florid a Administrative Orders.” (2010 Order at 46). This provision only applies to newly issued permits, so the withdr awal would not affect the State’s authority to comply with the Court’s order th at FDEP conform the existing permits within 60 days of this

63 In USEPA’s 60(b) motion, USEPA proposed a procedure for EPA review of new, re-issued, or modified NPDES permits subsequently issued (in lieu of partial program withdrawal). Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 52 of
5747 Amended Determination. The Court’s Order furt her provides that Florid a’s program authority

be withdrawn until such time as the State is in full compliance with the CWA, its implementing regulations, the Court’s 2008 and 2010 Orders and this Amended Determination. (Id.)

On July 29, 2010, USEPA filed a Rule 60(b) Motion for Modification of Injunction requesting the Court to replace the provision in th e 2010 Order that requires USEPA to initiate and carry out partial withdrawal of Florida’s NPDES permitting authority with a new injunctive provision that would appl y after the existing permits have been conformed pursuant to the Court’s Order. On August 2, 2010, the Court issu ed an order scheduling a hearing on USEPA’s motion for October 7, 2010.

In its Rule 60(b) motion, USEPA proposed that the Court modify its Order to impose a process by which, after the existing permits ar e conformed, USEPA reviews and corrects (if needed) any subsequent State permitting action be fore the action is proposed. That process would then rely on USEPA’s existing permit- by-permit oversight authority under CWA section 402(d) to review proposed permitting actions deve loped by FDEP. Under this approach, USEPA would provide up-front substantiv e direction to FDEP regarding any permitting action that the State contemplates proposing (much as th e Court’s 2010 Order currently requires for conformance of the existing permits). USEPA has clear authority under the CWA to review draft NPDES permits for legal and substantive ad equacy, to object to permits when appropriate, and to take over the permit at issue if FDEP were to fail to adequately respond to a USEPA objection.

Because the Court is considering USEPA’ s Rule 60(b) motion and has scheduled a hearing for a date after USEPA must issue the Amended Determination, USEPA is not initiating program withdrawal proceedings in this Amended Determination.

D. FDEP Enjoined from Issuance of NPDES and EFA Permits

The Court’s 2010 Order also included the following self-implementing injunction against the State of Florida:

“Other than to carry out th e requirements of Paragraph 3 [of the 2010 Order], above, the FDEP is enjoined from issuing any new NP DES permits, or modifications to existing NPDES permits - through State of Florida Administrative Orders, Everglades Forever Act permits or otherwise - for STAs that discharge into, or w ithin, the Everglades

Protection Area until such time as the State of Florida is found by the [US]EPA and this Court to be in full compliance with the Cl ean Water Act, its implementing regulations, the Summary Judgment Order, and this Orde r. All new Administrative Orders and Everglades Forever Act permits issued under the laws of the State of Florida must conform to, and comply with, the Clean Wa ter Act, its implementing regulations, the Summary Judgment Order, and this Order and the fo rthcoming Amended [US]EPA Determination. (Order at 46-47).”

No further action is required by USEP A to implement the Court’s injunction. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 53 of
5748 VI. Enforceable Framework for Ensuring Compliance with the CWA and Applicable Regulations

In setting aside USEPA’s determinations in the 2008 Order, the Court made several

references to the 1999 Determination and the de tailed analysis that USEPA conducted of the “enforceable framework” that supported USEP A’s 1999 approval of the compliance schedule implementing Everglades Forever Act (EFA) subs ection 4(f) as a new or revised water quality standard. (2008 Order at 31). In the Backgr ound section of the 2008 Order, the Court noted: “Most importantly, [US]EPA considered whether there was ‘an enforceable framework that ensured the numeric water quality criterion for phosphorus would be met by the December 31, 2006, deadline in the EFA or sooner if possibl e.’ (emphasis added by Court). It [USEPA] essentially concluded that the Everglades would be protected because ‘[t]he EFA incorporated a permitting scheme, and adopted provisions to ensure that by December 31, 2006, discharges into the Everglades Protection Area will no longer c ause or contribute to any violations of state water quality standards’. (emphasis added by Court).” (2008 Order at 31).

In its 1999 Determination, USEPA reviewed the EFA and other available information to determine if the compliance schedule set out in the EFA was needed, was as short as practicable, and did not preclude earlier compliance. USEPA explained that it “considered whether there

was an enforceable framework that ensured the numeric water quality criterion for phosphorus would be met by December 31, 2006 deadline in the EFA or sooner if possible.” (1999 Determination at 9). In making its determinatio n, USEPA evaluated eigh t factors and concluded that the 2006 compliance schedule in the EFA “is necessary, is being enforced, and serves the purposes of the CWA to enhance water quality.” (Id at 18).

In the 2010 Order, the Court required USEPA to specify an enforceable framework for ensuring compliance with the CWA and its appli cable regulations. (Order at 45). USEPA believes that all of the components of its Am ended Determination together represent an enforceable framework for ensuring compliance with the CWA and its implementing regulations.

First, Florida’s water quality standards for th e Everglades will be amended to bring them into compliance with the CWA and its implem enting regulations eith er through action by the State of Florida or USEPA. A significant amendment will be that the water quality standards will no longer include any reference to the extended compliance deadline of 2016.

Second, to ensure that all NPDES and EFA permits for discharges from the STAs into the Everglades Protection Area include effluent limitations are as string ent as necessary to meet the water quality standards for the Everglades Protection Area, USEPA has provided clear

instructions to the State of Florida on how the current permits must be conformed to comply with the CWA and its implementing regulations. USEP A’s instructions include specifying what the appropriate WQBEL is for each of the STAs. Im portantly, USEPA has instructed the State that the permits may not include any compliance sc hedules. The new WQBELs must be effective Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 54 of
5749 upon the date the permits are effective. Consistent with the Court’s Order, FDEP is to conform the permits within 60 days of the Amended Determination.

Third, USEPA has also provided clear, specif ic and comprehensive instructions to the

State of Florida on what actions must be taken to ensure compliance with these new WQBELs. USEPA has specified the actions that must be ta ken to ensure expansi on and proper operation of each of the STAs in order to meet the new WQBELs.

Fourth, USEPA is prepared to exercise its full CWA enforcement authorities to ensure the actions it has identified as necessary fo r compliance with the ne w WQBELs and achieve attainment of the water quality standards are implemented according the milestones set forth in

the Amended Determination.

Fifth, if the Court grants USEPA’s Rule 60(b) Motion, USEPA will exercise its CWA permit oversight authority to ensure that all new NPDES permits or future modifications of permits that FDEP will issue for discharges in to the Everglades Protection Area fully comply with the CWA and implementing regulations. USEPA has authority under CWA section 402(d) to object to any State NPDES permit that does no t comply with the requirements of the CWA. When USEPA objects, unless the State revise s the permits to address USEPA’s objection, exclusive authority to issue such permits transfers to USEPA.

USEPA believes that the above actions all serv e to create an enforceable framework for ensuring compliance with the CWA and its implementing regulations.

VII. Relationship to U.S. v. SFWMD, Case No, 88-CV-1886-FAM (S.D. Fla.)

In the 2010 Order, the Court discussed the distinctions and sim ilarities between the

Consent Decree Case and the case in front this Court.

To be sure both cases directly concern the problems facing the Ever glades. The crucial

distinction is that the Consent Decree Case turns on a consent decree created pursuant to

State law – not the Clean Water Act. Thus while the Federal Clean Water Act implications here subsume certain matters pe rtinent to the Consent Decree Case, this federal statutory action – which concerns the entire Everglades Protection Area, - casts a wider net. Both cases address, however a cr ucial similarity: the fact that the December 31, 2006 deadline promised in the Consent D ecree and mandated in the [US]EPA 1999

Determination has not been met. . . . While the parallel proceeding share certain features, they are not identical, nor are the ava ilable remedies the same, though careful consideration should be given [to] accomplis hing related goals in a manner consistent with the Congressional mandate set forth in the CWA. 2010 Order at 29 – 30.

The Court went on to require USEPA to r econcile the obligations and commitments

under the Consent Decree with th e Amended Determination that mandates CWA compliance. USEPA is defined as part of the United States in the Consent Decree Case and participates in all aspects of that case. As a result, USEPA is in the position to reconcile the obligations and

commitments in either forum. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 55 of
5750 Currently there are several outstanding motions in the Consent Decree Case that are parallel to the actions in this case. The existing 1992 CD as amended includes construction deadlines and acreages fo r all the STAs. Consent Decree, Paragraph 10, and Appendix C. It also requires the implementa tion of on-farm best management practices program. Consent Decree, Paragraph12, and Appendix E. As discu ssed in the 1999 Determination, implementation of those remedies was an important factor in approving the December 31, 2006 compliance

schedule.

In this Amended Determination, USEPA has developed a comprehensive set of water quality remedies that require expanding the footprin t of all the STAs in each of the flow-ways in the EAA, including those remedies needed to addr ess water quality in the Refuge. As noted in the August 11, 2010 post hearing brief filed by the Un ited States in the Consent Decree Case, the United States intends to provide the Amended Determination to the Consent Decree Court in response to the Special Master's August 30, 2010 report, so that the Court may consider the comprehensive remedies developed by USEPA. See United States’ Po st Hearing Memorandum In Support of State Motion for Relief Under FRCP 59(e) and 60(b) From Order to Construct EAA A1 Reservoir, August 11, 2010, at 1-2.

The current status of the Consent Decree Case centers around the March 31, 2010 Order (2010 Consent Decree Order) granting two motions filed by the Tribe. In that Order, the Court

mandated that the EAA A1 Reservoir be construc ted and the court also found that the State and

SFWMD were in violation of certa in other aspects of the Consen t Decree. These issues were referred to the Special Master for hearings. Subsequently, th e SFMWD filed a Rule 59(e) and 60(b) motion seeking to be relieved of the com mitment to construct the EAA A1 Reservoir. The basis for that motion is that underlying fact s have changed and the EAA A1 property is physically situated such that th e lands would be better used as an STA or a FEB, but not as a deep water storage reservoir. The Special Master held hearings on the mo tion the week of July 26, 2010 and has issued a recommendation to the Court on August 30, 2010. That recommendation states that the State should be gr anted relief from build ing the reservoir on the

EAA A1 site. The United States filed its own enforcement motion in the Consent Decree case on July 15, 2010. See Motion of Plaintiff United St ates of America for Resolution of Liability Issues (D.E. 2179).

USEPA has considered the EAA A1 Reservoi r land as an important option for expanding STA 3/4, thereby compressing the timeframe for compliance with the WQBEL. USEPA is awaiting the Consent Decree Court’s ultimate dispos ition of this matter. The Special Master is also scheduling hearings on both the liability issues identified in the Tribe’s motions and the ultimate remedies needed to meet the water qua lity requirements of the 1992 Consent Decree for the Refuge.

In sum, USEPA will continue to participate in the Consent Decree Case, to reconcile the obligations and commitments in both forums. This section (section VII) is intended to be purely descriptive, and is not intended to have any binding effect in the Consent Decree Case. Case 1:04-cv-21448-ASG Document 458-1 Entered on FLSD Docket 09/03/2010 Page 56 of
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