# Form for Compliance with E.O. 12866 Docket Requirements
Title of Regulation: Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters Contact person: Erica Fleisig Phone number: 202

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Was this regulation reviewed by OMB under Executive Order 12866
- Regulatory Planning and Review ?
X Yes No If you checked “no”, you are done with this form. Simply place it in the docket for your regulation. If you checked “yes”, please fill out the remainder of the form before placing it in the docket. Also docket any relevant documents referenced in the form.

For regulations th at are checked “Yes” above: This regulation was reviewed by OMB under Executive Order 12866

- Regulatory Planning and Review

. Attached is the draft regulation and any other documents sent to OMB for review, such as analyses and assessments. E.O. 12866 requires agencies to make these publicly available. E.O. 12866 also requires agencies to identify the substantive changes between the draft regulation sent to OMB for review and the reg ulation subsequently announced [ Please check the appropria te box below: ]

X EPA made substantive changes to this regulation (includes changes initiated by EPA or OMB). Attached is a document which: (1) identifies all the substantive changes made, and (2) notes those changes OMB suggested or recommended. No substantive changes were made to this regulation Therefore, no f urther attachments are required

. If you have questions about this regulation, please call the EPA contact person listed above.

### MEMORANDUM SUBJECT: Proposed Rule: Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters

- Executive Order 12866 Docket Requirements Compliance FROM: Erica Fleisig, Regulation Manager Office of Water TO: Docket EPA

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- 0222 Overview O n February 7, 2012 , the proposed rule titled: Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters was submitted to the Off ice of Management and Budget (OMB) for review under E.O. 12866. On November 30, 2012, OMB concluded review of the proposed rule. This review resulted in a number of substantive changes being made to the proposed rule as a result of recommendations from OMB or other agencies. In addition to the in

- text edits captured in the attached pr eamble, other changes were initiated by EPA or OMB in response to three significant events that occurred while the proposed rule was at OMB. A summary o f those events and the resulting changes is captured below. Background On January 14, 2009, EPA determined under CWA section 303(c)(4)(B) that new or revised water quality standards (WQS) in the form of numeric nutrient water quality criteria for nitrogen and phosphorus pollution are necessary to protect the designated uses t hat Florida has set for its Class I, Class II, and Class III waters. Subsequently, EPA entered into a Consent Decree, effective on December 30, 2009 (and further revised on several occasions), which established a schedule for EPA to propose and promulgate numeric nutrient criteria for Florida’s lakes, springs, flowing waters, estuaries, and coastal waters. The Consent Decree provided that if Florida submitted and EPA approved numeric nutrient criteria for the relevant waterbodies before the dates outlined i n the schedule, EPA would no longer be obligated to propose or promulgate criteria for those waterbodies. On December 6, 2010, EPA published a rule finalizing numeric nutrient criteria for Florida’s lakes, springs, and flowing waters outside of the South Florida Nutrient Watershed Region (40 CFR 131.43). Following publication of the “ inland waters rule ” , challenges were filed in the U.S. District Court for the Northern District of Florida alleging that EPA’s determination and final

### rule were arbitrary , cap ricious, an abuse of discretion, and not in accordance with the law for a variety of reasons. Along with the inland waters rule, EPA developed an economic analysis to provide the public with information on potential costs and benefits that may be associated with Florida’s implementation of EPA’s rule. EPA determined that an independent peer review of the approaches used in its econo mic analysis would provide important information on the disparity between EPA’s cost estimates and those of some stakeholders, and would be helpful to inform and improve its analysis of this proposed rule for Florida’s estuaries, coastal waters and south F lorida inland flowing waters. Accordingly, EPA requested the National Research Council (NRC) of the National Academies to review EPA’s economic analysis for the final inland waters rule. Summary of Key Changes 1. On February 18, 2012, the Court upheld EPA’s January 2009 determination and the final numeric nutrient criteria for Florida’s lakes and springs, as well as the SSAC provisions and the provisions for calculating downstream protection values (DPVs) using either modeling or a default option for an impai red lake that is not attaining its numeric nutrient criteria . With regard to EPA’s numeric nutrient criteria for flowing waters (i.e., streams) and the default option to calculate DPVs for unimpaired lakes based on ambient stream nutrient concentrations at the point of entry to the lake, the Court found that EPA had not provided sufficient information in its final rule explaining why or how the criteria or DPV protect against harmful increases, as opposed to any increase, in nutrients. Thus, the Court inval idated these two aspects of EPA’s final rule and remanded them to the Agency for further action. a. EPA and OMB agreed that EPA should review the Court’s ruling on the final inland waters rule and , where relevant, ensure that the criteria proposed in this proposed rule protect against harmful increases, as opposed to any increase, in nutrients. 2. The NRC Committee completed its “Review of the EPA’s Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida” in June 2012. a. EPA and OM B agreed that EPA should review the NRC report and address the NRC recomme ndations and suggestions in the analysis of costs for the coastal and estuary criteria in this proposed rule. 3. On June 13, 2012, Florida submitted new and revised WQS for review by the EP A pursuant to section 303(c) of the CWA. EPA approved the provisions of these rules submitted for review that constitute new or revised WQS. Among the newly

- approved State WQS are numeric criteria for nutrients that apply to a set of estuaries and coastal marine waters in Florida. Under the Consent Decree, EPA is relieved of its obligation to propose numeric criteria for these waters. a. EPA and OMB agreed that these waters should not be included in this proposed rule , so they were removed from the version th at was originally submitted to OMB on February 7, 2012

. AttachmentPage 1 of 221 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA
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- AF 21 Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed r ule. SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) is proposing numeric water quali ty criteria to protect ecological systems , and aquatic life , and human health from nitrogen and phosphorus pollution in estuaries and coastal waters within the State of Florida not covered by EPA

- approved State rulemaking , and south Florida inland flowing waters. These proposed criteria apply to Florida waters that are designated as Class I , Class II, or Class III waters and they are intended to protect these designated uses as well as implement for the purposes of the Clean Water Act the State’s na rrative nutrient provision at Subsection 62

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. 530(47 ) (b) , Florida Administrative Code (F.A.C.), which provides that “[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic fl ora or fauna.” DATES : Comments must be received on or before [ INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ]. Because of EPA’s obligation to sign a notice of final rulemaking on or before September 30, 2013 under Consent Decree, the Agency regrets that it will be unable to grant any requests to extend this deadline. Comment [E1]: OMB edit accepted.Page 2 of 221 ADDRESSES : Submit your comments, identified by Docket ID No. EPA

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- line instructions for submitting comments.
2. Email: ow

- docket@epa.gov
3. Mail to: Water Docket, U.S. Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460 , Attention: Docket ID No. EPA

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. 4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20004, Attention Docket ID No. EPA

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. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangemen ts should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA

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. EPA’s policy is that all comments received will be included in the public docket without change and may be made available onlin e at www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricte d by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e - mail. The www.regulations.gov Web site is an “anon ymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you submit an electronic comment, EPA recommends that you include your name and other contactPage 3 of 221 information in the body of your comment and with any disk or CD

- ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of spec ial characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dock ets.htm

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Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure i s restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations .gov or in hard copy at a docket facilit y . The Office of Water (OW) Docket Center is open from 8:30

a.m. until 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket Center telephone number is (202) 566

- 2426, and the Docket address is OW Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

- 17 44. FOR FURTHER INFORMATION CONTACT : Erica Fleisig , U.S. EPA Headquarters, Office of Water, Mailcode: 4305T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460 ; telephone number: (202) 566

- 1057 ; email address: fleisig.erica @epa. gov.Page 4 of 221 SUPPLEMENTARY INFORMATION : This supplementary information section is organized as follows: Table of Contents
I. General Information
A. Executive Summary
B. Which Water Bodies Are Affected By This Rule?
C. What Entities May Be Affected By This Rule?
D. What Should I Consider as I Pre pare My Comments for EPA?
E. How Can I Get Copies of This Document and Other Related Information?
II. Background
A. Nitrogen and Phosphorus Pollution
B. Statutory and Regulatory Background
C. Water Quality Criteria
D. EPA Determination Regarding Florida and Consent Decree
E. EPA’s Rulemaking and Subsequent Litigation
F. Florida Adoption of Numeric Nutrient Criteria and EPA Approval
III. Proposed Num eric Criteria for Florida’s Estuaries, Coastal Waters , and South Florida Inland Flowing Waters
A. General Information and Approaches
B. Proposed Numeric Criteria for Estuaries C. Proposed Numeric Criteria for Coastal Waters
D. Proposed Numeric Criteria for South Florida Inland Flowing Waters
E. Applicability of Criteria When FinalPage 5 of 221 IV. Under What Conditions Will EPA Either Not Finalize or Withdraw These Federal Standards?
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Variances C. Site

- S pecific Alternative Criteria
D. Compliance Schedules
VI. Economic Analysis A. Incrementally Impaired Waters
B. Point Source Costs
C. Non

- point Source Costs
D. Govern mental Costs
E. Summary of Costs
F. Benefits
VII. Statutory and Executive Order Reviews
A. Executive Order s 12866 ( Regulatory Planning and Review ) and 13563 (Improving Regulation and Regulatory Review)
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)Page 6 of 221 G. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions Tha t Significantly Affect Energy Supply, Distribution, or Use)
I. National Technology Transfer Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low

- Income Populations)

I. General Informa tion A. Executive Summary 1. Purpose of the Regulatory Action The primary purpose of this rule is to propose numeric water quality criteria to protect ecological systems , and aquatic life , and human health within the State of Florida from nitrogen and phosphorus pollution. The criteria proposed in this rule apply to certain estuaries and coastal waters within the State of Florida and south Florida inland flowing waters (e.g., rivers, streams, canals) 1 , with the exception of waters within the lands o f the Miccosukee and Seminole Tribes, the Everglades Agricultural Area (EAA), and the Everglades Protection Area (EvPA)

. 2

1 EPA has distinguished south Florida inland flowing waters as waters in the South Florida Nutrient Watershed Reg ion (SFNWR). The SFNWR was defined previously in EPA’s final rule for lakes and flowing waters as the area south of Lake Okeechobee, the Caloosahatchee River watershed (including Estero Bay) to the west of Lake Okeechobee , and the St. Lucie watershed to th e east of Lake Okeechobee. 2 FL Statute Section 373.4592 (1994) subsection (2) Definitions: (e) "Everglades Agricultural Area" or "EAA" means the Everglades Agricultural Area, which are those lands described in FL Statute Section 373.4592 (1994) subsection (15). FL Statute Section 373.4592 (1994) subsection (2) Definitions: (h) "Everglades Protection Area" means Water Conservation Areas 1 (which includes the Arthur R. Marshall Loxahatchee National Wildlife Refuge), 2A, 2B, 3A, and 3B, and the Everglades Nat ional Park. Comment [E2]: OMB edits accepted.Page 7 of 221 The criteria support implementation of pollution control programs authorized under the Clean Water Act (CWA). As part of a comprehens ive program to restore and protect the Nation’s waters, Section 303 (c) of the CWA directs s tates to adopt water quality standards for their navigable waters

. CWA Section 303(c)(2)(A) and EPA's implementing regulations at 40 CFR 131 require that state water quality standards include the designated use (e.g. public water supply, propagation of fish and wildlife, recreational purposes) and criteria that protect those uses. Criteria may b e numeric or narrative in form , but consistent with EPA regulations at 40 CFR 131.11(a)(1), such criteria “must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use.” EPA regulations at 40 CFR 131.10(b) also provide that “[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into consideration the water quality standards of downstream waters and ensure that its water quality standards pro vide for the attainment and maintenance of the water quality standards of downstream waters.” The CWA requires that any new or revised water quality standards developed by states be submitted to EPA for review and approval or disapproval, and authorizes th e EPA Administrator to determine, even in the absence of a state submission, that a new or revised standard is needed to meet CWA requirements. Florida is known for its abundant and aesthetically beautiful natural resources, particularly its aquatic res ources, which are very important to Florida’s economy. Florida’s coastal and estuarine waters play an especially important part in sustaining the environment and the economy in the State. For example, Florida’s saltwater sport fishing industry contribut es over $ 5 billion to the State’s economy and more than 54,000 jobs Comment [E3]: Paragraph added per OMB request.

Comment [E4]: OMB edit accepted.Page 8 of 221 annually; the State's commercial saltwater fishing industry contributes over $1 billion and more than 10,000 jobs annually. 3 In 2007, nearly 11.3 million residents and 46.3 million visitor s participated in recreational saltwater beach activities in Florida. Nearly 3.5 million residents and approximately 1.4 million visitors used saltwater boat ramps, over 4.2 million residents and about 3 million visitors participated in saltwater non

- boat fishing, and over 2.6 million residents and almost 1 million visitors participated in canoeing and kayaking. 4 However, nitrogen and phosphorus pollution has contributed to serious water quality degradation affecting these coastal and estuarine resources in the State of Florida , as well as other Florida waters

. M any people throughout Florida , whose livelihood depends on these recreational water activities , lose income when recreation, tourism, or fishing activities are adversely affected by nitrogen and phosphorus pollution

. In the most recent Florida Department of Environmental Protection (FDEP) water quality assessment report, the Integrated Water Quality Assessment for Florida : 201 2 305(b) Report and 303(d) List Update , FDEP describes widespread water quality impairment in Florida due to nitrogen and phosphorus pollution. FDEP’s 201 2 report identifies approximately 1 , 918 miles of rivers and streams ( about 14 percent of assessed river and stream miles ), 378,435 acres of lakes ( about 31 percent of assessed lake acres ), 754 square miles ( 482,560 acres) of estuaries ( about 14 percent of assessed estuarine area ) and 102 square miles (65,280

3 FFWCC. 2011. The economic impact of saltwater fishing in Florida . Florida Fish and Wildlife Conservation Commission. <http://myfwc.com/conservation/value/saltwater

- fishing>. Accessed December 2011. 4 FDEP. 2008. Chapter 5

– Outdoor Recreation Demand and Need. In Outdoor Recreation in Florida, 2008: Florida’s Comprehensive Outdoor Recreation Plan, Final Draft . Florida Department of Environmental Protection, Division of Recreation and Parks, Tallahassee, FL. < http://www.dep.state.fl.us/parks/planning/forms/SCORP5.pdf > . Accessed December 2011. Comment [E5]: OMB edit accepted (changed from ‘aquatic’) Comment [E6]: OMB edit accepted.

Comment [E7]: OMB edit accepted.

Comment [E8]: OMB edit accepted.Page 9 of 221 acres) of coastal waters (about 1. 6 percent of assessed coastal waters) as impaired by nutrients. In addition, the same report indicates that 1,108 miles of rivers and streams ( about 8 percent of assessed river and stream miles ) and 107 square miles (68,480 acres) of lakes ( abou t 5 percent of assessed lake square miles ) are impaired due to nutrient
po llution

. These numbers may underestimate the miles and acres of nutrient impaired waters (though not necessarily the total percentages) in Florida as only 58 percent of Florida’s rivers and streams, 82 percent of Florida’s lakes, and 93 percent of Florida’s estuaries were assessed

. 5 On January 14, 2009, EPA determined under CWA section 303(c)(4)(B) that new or revised water quality standards (WQS) in the form of numeric nutrient water quality criteria are necessary to protect the designated uses that Florida has set for its Class I, C lass II, and Class III waters. Subsequently, EPA entered into a Consent Decree with Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper, effective on Decemb er 30, 2009, which established a schedule for EPA to propose and promulgate numeric nutrient criteria for Florida’s lakes, flowing waters, estuaries, and coastal waters. The Consent Decree also provided that if Florida submitted and EPA approved numeric

nu trient criteria for any relevant waterbodies before the dates outlined in the schedule, EPA would no longer be obligated to propose or promulgate criteria for those waterbodies.

5 FDEP. 2012. Integrated Water Quality Assessment for Florida: 2012 305(b) Report and 303(d) List Update. (May 2012). Florida Department of Environmental Protection, Division of Environmental Assessment and Restoration, Tallahassee, FL. < http://www.dep.state.fl.us/water/doc s/2012_integrated_report.pdf >. Accessed August 2012. Comment [E9]: OMB edits accepted.Page 10 of 221 On June 13, 2012, FDEP submitted new and revised WQS for review by the EPA
pur suant to section 303(c) of the CWA. These new and revised WQS are set out primarily in Rule 62

- 302 of the F.A.C. [Surface Water Quality Standards]. FDEP also submitted amendments to Rule 62

- 303, F.A.C. [Identification of Impaired Surface Waters], which
set s out Florida’s methodology for assessing whether waters are attaining State WQS. On
N ovember 30 , 2012, EPA approved the provisions of these rules submitted for review that constitute new or revised WQS (hereafter referred to as the “newly

- approved State
W QS”). Among the newly

- approved State WQS are numeric criteria for nutrients that apply to a set of estuaries and coastal marine waters in Florida. Specifically, these newly

approved State WQS apply to Clearwater Harbor/St. Joseph Sound, Tampa Bay, Sarasota Bay, Charlotte Harbor/Estero Bay, Clam Bay, Tidal Cocohatchee River/Ten Thousand Islands, Florida Bay, Florida Keys, and Biscayne Bay. 6 Under the Consent Decree, EPA is relieved of its obligation to propose numeric criteria for these waters. Finally, as d escribed in EPA’s N ovember 30 , 2012 approval of Florida’s new or revised WQS, while EPA believes that the provisions addressing downstream protection will provide for quantitative approaches to ensure the attainment and maintenance of downstream waters con sistent with 40 CFR 131.10(b), the provisions themselves do not consist of numeric values. Because EPA is currently subject to a Consent Decree deadline to sign a rule proposing numeric downstream protection values (DPVs) for Florida by November 30, 2012, EPA is proposing numeric DPVs to comply with the Consent

6 Clam Bay, Tidal Cocohatchee River/Ten Thousand Islands, Florida Bay, Florida Keys, and Biscayne Bay are collectively referred to in this proposed rule as “south Florida marine waters,” as these are th e predominantly marine waters downstream of the South Florida Nutrient Watershed Region.Page 11 of 221 Decree. However, EPA has amended its January 2009 determination to specify that numeric criteria for downstream protection are not necessary and that quantitative approaches designed to ensure the at tainment and maintenance of downstream water quality standards, such as those established by Florida, are sufficient to meet CWA requirements . As such, EPA will ask the court to modify the Consent Decree consistent with the Agency’s amended determination, i.e., to not require EPA to promulgate numeric DPVs for Florida. Accordingly, EPA approved the State’s downstream protection provisions subject to the district court modifying the Consent D ecree to not require EPA to promulgate numeric DPVs for Florida . If the district court agrees to so modify the Consent Decree, EPA will not promulgate numeric DPVs for Florida. However, if the district court declines to so modify the Consent Decree, EPA would intend to promulgate numeric DPVs for Florida and would also ex pect to revisit its
N ovember 30 , 2012 approval of the State Rule’s downstream protection provisions to modify or withdraw its approval. Therefore, EPA has also reserved its authority to do so in its approval document. A full description of all of EPA’s recent actions on Florida numeric nutrient criteria and related implications for EPA’s own rules can be found at http://water.epa.gov/lawsregs/rulesregs/florida_index. cfm

. EPA is proposing these numeric criteria in accordance with the terms of th e January 14, 2009 determination, December 2009 Consent Decree, and subsequent revisions to that Consent Decree that require the EPA Adminis t rator to sign this proposal by November 30 , 2012 (discussed in more detail in Section II.D). EPA believes that the Comment [E10]: OMB edit acc epted.

Comment [E11]: OMB edit accepted.Page 12 of 221 proposed criteria in this rule will assure protection of Florida’s existing designated uses and are based on sound and substantial scientific data and analyses. 2. Summary of the Major Provisions of the Regulatory Action To develop th ese proposed numeric nutrient criteria for Florida’s estuaries, coastal waters, and south Florida inland flowing waters, t he Agency conducted a detailed scientific analysis of the substantial amount of water quality data available from Florida ’s extensive monitoring data set.
EPA concluded that an approach using relevant biological endpoints and multiple lines of evidence including stressor

- response analyses and mechanistic modeling was a strong and scientifically sound approach for deriving numeric nutrie nt criteria for estuaries, in the form of total nitrogen ( TN ), total phosphorus ( TP ) and chlorophyll a concentrations

. EPA’s methodology and the resulting proposed estuarine numeric nutrient criteria are presented in more detail in Section III.B of this no tice of proposed rulemaking

. For coastal waters on the Atlantic and Gulf coasts of Florida, EPA is proposing to use a reference condition

- based approach. EPA chose to use satellite remote sensing in all coastal areas of Florida except the Big Bend Coastal region. Using this approach, EPA developed chlorophyll a criteria from satellite remote sensing imagery and field data to calibrate the satellite remote sensing imagery. In the Big Bend Coastal region of Florida 7 , where satellite remote sensing predictio ns of chlorophyll a were not possible due to reflectance that interferes with the remote sensing imagery in that area, EPA used mechanistic and statistical models to determine TN, TP, and chlorophyll a criteria for

7 This area includes waters offshore of Apalachicola Bay, Alligator Harbor, Ochlockonee Bay, Big Bend/Apalachee Bay, Suwannee River, and Springs Coast.Page 13 of 221 these coastal waters. 8 EPA’s methodology and results for its proposed coastal criteria are presented in more detail in Section s I II.B and III. C

. EPA is proposing numeric nutrient criteria to ensure the attainment and maintenance of the water quality standards in downstream estu aries and south Florida marine waters pursuant to the provisions of 40 CFR 131.10(b). EPA examined a variety of modeling techniques and data to assess whether waters entering an estuary protect the water quality standards within the estuary. Accordingly, E PA is proposing an approach to derive TN and TP criteria expressed as downstream protection values (DPVs) at the points where inland flowing waters flow into estuaries, or marine waters in south Florida (referred to as ‘pour points’). These proposed DPVs a pply to all flowing waters, including south Florida inland flowing waters (with the exception of waters within the lands of the Miccosukee and Seminole Tribes, EAA, and EvPA), that flow directly into estuaries or south Florida marine waters. EPA’s propose d approach for deriving DPVs at the pour points involves an evaluation of water quality in the downstream estuary, water quality conditions at the pour point, and selecting a method to derive the DPV values based on available data . The proposed approaches for deriving DPVs in flowing waters are presented in more detail in Sections III.B and III.D. Finally, EPA is proposing to extend the approach finalized in 40 CFR 131.43(e) 9 to allow development of Site

- Specific Alternative Criteria (SSAC) for estuaries, c oastal

8 EPA derived T N and TP criteria for coastal waters in the Big Bend Coastal region because mechanistic models were used in these areas. 9 40 CFR 131.43(e) authorize s the derivation of Federal Site

- Specific Alternative Criteria (SSAC) after EPA review and approval of appl icant submissions of scientifically defensible criteria that meet the requirements of CWA section 303(c) and EPA’s implementing regulations at 40 CFR 131

.Page 14 of 221 waters, and south Florida inland flowing waters. EPA’s rationale for extending these SSAC provisions is discussed in more detail in Section V.C

. EPA has incorporated sound science , local expertise, and substantial Florida

specific data throughout th e development of these proposed numeric TN, TP, and chlorophyll a criteria. EPA relied upon peer - reviewed criteria development methodologies , 10 relevant biological endpoints, and a substantial body of scientific analysis provided to EPA by FDEP , as well as other federal , State , and local partners such as the National Park Service ; National Oceanic and Atmospheric Administration (NOAA); U.S. Geological Survey (USGS); Tampa Bay, Indian River Lagoon, Sarasota Bay and Charlotte Harbor National Estuary Programs; St. Johns River and South Florida Water Management Districts; and Florida In ternational University.
EPA sought feedback on the scientific defensibility of the approaches outlined in this proposed rule through a Science Advisory Board (SAB) review. 11 The SAB assembled a group of eighteen expert panelists to review EPA’s Methods and Approaches for Deriving Numeric Criteria for Nitrogen /P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. 12 The SAB recommendations 13

10 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA

- 822

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA. 2000b. Nutrient Criteria Technical Guidance Manual: Rivers and Streams. EPA

- 822

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- 002. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA. 2001. Nutrient Criteria Technical Guidance Manual: Estuarine and Coastal Marine Waters. EPA

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- B

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- 003. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA. 2010. Using Stressor

- Response Relationships to Derive Numeric Nutrient Criteria. EPA

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10

- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 11 USEPA

- SAB. 2011. Review of EPA’s draft Approaches for Deriving Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Wate rs . EPA

- SAB

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- 010. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC. 12 USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen /P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inl and Flowing Waters

. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 13 USEPA

- SAB. 2011. Review of EPA’s draft Approaches for Deriving Numeric Nutrient Criteria forPage 15 of 221 strengthen ed the scientific basis of these proposed numeric nutrient criteria. A number of key interest groups presented their comments and views on the underlying science as part of the SAB review process. In addition, EPA met with several groups of stakeholders with local technical expertise to discuss potential approaches for der iving scientifically defensible numeric nutrient criteria. 3. Costs and Benefits This is not an economically significant regulatory action For the reasons presented in this notice, this is not an economically significant regulatory action under Executive Order 128 66

. U nder the CWA, EPA ’ s promulgation of WQS establishes standards that the State of Florida implements through the National Pollutant Discharge Elimination System ( NPDES ) permit process for point source dischargers and may also result in new or revised requirements for nitrogen and phosphorus pollution treatment controls on other sources (e.g., agriculture, urban runoff, and septic systems) through the development of Total Maximum Daily Loads (TMDLs) and Basin Management Action Plans (BMAPs)

. As a result of this action, the State of Florida will need to ensure that permits it issues and Waste Load Allocations (WLAs) issued under TMDLs and BMAPs include any limitations on discharges and ot her sources necessary to comply with the standards established in the final rule. In doing so, the State will have considerable d iscretion and a number of choices associated with permit writing (e.g., relating to compliance schedules, variances, etc.) and flexibilities built into the TMDL and BMAP process for WLA assignment

. While Florida ’ s implementation of the rule may ultimately result in new or revised permit conditions for some dischargers and WLA requirements for control on
Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Water s . EPA

- SAB

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- 010. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC. Comment [E12]: OMB edit accepted.Page 16 of 221 other sources , EPA ’ s action , by itself, does not establish any requirements directly applicable to regulated entities or other sources of nitrogen and phosphorus pollution

. Additionally, Florida already has an existing narrative water quality criterion 14 which require s that nutrients not be present in estuaries and coastal waters in Florida or in south Florida inland flowing waters in concentrations that cause an imbalance in natural populations of flora and fauna

. The proposed criteria in this rule are consistent with and
serve to implement the State’s existing narrative nutrient provision. Although th e proposed rule does not establish any requirements directly applicable to regulated entities or other sources of nutrient pollution, EPA developed an economic analysis t o provide information on potential costs and benefits that may be associated with the State implementation requirements that may be necessary to en sure attainment of WQS

. EPA conducted an analysis to estimate both the increase in the number of impaired waters that may be identified as a result of the proposed rule and the annual cost of CWA pollution control actions likely to be implemented by the State of Florida to assure attainment of applicable State water quality des ignated uses for these
waters. It is important to note that the costs and benefits of pollution controls needed to attain water quality standards for nutrients for waters already identified as impaired by the State (including waters with TMDLs in place and without TMDLs in place) are no t included in EPA estimates of the cost of the rule. EPA believes that these costs and benefits would be incurred in the absence of the current proposed rule and are therefore part of the baseline against which the costs and benef its of this rule are measu red. EPA’s

14 Subsection 62

- 302

. 530(47 ) (b) , Florida Administrative Code (F.A.C.), provides that “[i]n no case shall nutrient concentrations of a body of water be altered s o as to cause an imbalance in natural populations of aquatic flora or fauna.” Comment [A13]: OMB edit accepted.Page 17 of 221 analysis is fully described in the document entitled Economic Analysis of Proposed Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters (hereinafter referred to as the Economic Ana lysis), which can be found in the docket and record for this proposed rule. The final conclusion of this assessment is that the incremental costs associated with the proposed rule range between $ 239.0 million and $ 632.4 million per year (2010 dollars) and total monetized benefits may be in the range from $ 39.0 to $ 53.4 million annually. EPA’s analysis describes additional benefits that could not be monetized. EPA has provided estimates of the annual costs and benefits ; th ese exceed the $100 million threshold that defines an economically significant rule under section 3(f) of Executive Order 12866

. However, EPA cautions that these estimates cannot be used to determine that this rule is economically signifi cant. The direct e ffect of this rule is to provide Florida with a numeric articulation of its current narrative articulation of nutrients criteria, without affecting the resulting level of protection offered by the criteria. The estimates of costs and benefits here are indi rect estimates (costs and benefits associated with controls for waters that would immediately be judged to be impaired due to numeric criteria) of the direct effects of this proposed rule (decreasing the time to implement TMDLs on impaired waters), and the relationship these indirect estimates bear to the true costs and benefits cannot be determined.
B. Which Water Bodies Are Affected By This Rule? EPA’s proposed rule applies to estuaries and coastal marine waters that have been classified by Florida as C lass I I ( Shellfish Propagation or Harvesting ) or Class III (Recreation, Prop a gation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) , including tidal creeks and marine lakes , but excluding the estuarine Comment [E14]: OMB edit accepted.

Comment [E15]: OMB edit accepted.Page 18 of 221 and marine waters contained in Florida’s newly

- approved State WQS . This proposed rule also applies to south Florida inland flowing waters that have been classified by Florida as Class I (Potable Water Supplies) or Class III water bodies pursuant to Section 62

- 302.400, F.A.C

. , excluding wetlands (e.g. sloughs in south Florida) and flowing waters within the lands of the Miccosukee and Seminole Tribes, EvPA, or EAA. 15 Pursuant to Subsection 62

- 302.400(4), F.A.C., “Class I, II, and III surface waters share water quality criteria established to protect fish consumption, recreation and the propagation and maintenance of a healthy, well

- balanced population of fish and wildlife.” 16 Florida currently has a narrative nutrient criterion at Subsection 62

- 302

. 530(47 ) (b) , F.A.C. 17
establishe d to protect these three uses and EPA is numerically interpreting Florida’s narrative criterion for the purpose of protecting the Class I, II , and III surface waters for the purposes of the CWA in this proposed rulemaking. EPA is not proposing to change an y of Florida’s water body classifications with this regulation. The proposed criteria in this regulation would only apply to water bodies that are currently classified by Florida as Class I, II, or III and not to water bodies with other classifications suc h as Class III limited waters 18 for which use attainability analyses

15 In this rule, EPA is interpreting the existing State narrative criterion under Subsection 62

- 302.530(47)(b), F.A.C. That criterion applies to Florida waters classified as Class I (Potable Water Supplies), Class II (Shellfish Propagation or Harvesting), and Class III Marine and Fresh (Recreation, Propagation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife). EPA is not aware of any marine waters that Fl orida has classified as Class I potable water supply. Therefore, for purposes of this rule, EPA is interpreting Subsection 62

- 302.530(47)(b), F.A.C. to protect fish consumption, recreation, and the propagation and maintenance of a healthy, well

- balanced po pulation of fish and wildlife in Florida’s Class II and III estuarine and coastal waters. 16 Class I waters also include an applicable nitrate limit of 10 mg/L and nitrite limit of 1 mg/L for the protection of human health in drinking water supplies. The ni trate limit applies at the entry point to the distribution system (i.e., after any treatment); see Section 62

- 550, F.A.C., for additional details. 17 “[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in na

tural populations of aquatic flora or fauna” 18 Class III limited waters include waters that support fish consumption; recreation or limited recreation; and/or propagation and maintenance of a limited population of fish and wildlife ; see Chapter 62

- 302.400( 1)Page 19 of 221 (UAAs) and SSACs for nutrients have been established, or Class IV canals in Florida’s agricultural areas. EPA is defining estuary to be consistent with Florida’s definition of estuary in
S ection 62

- 303.200, F.A.C., where “e stuary” shall mean “ predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. ” Such areas include bays, mouths of rivers, and lagoons that have been classified as Class II (Shellfish Propagation or Harvesting) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) water bodies pursuant to Section 62

- 302.400, F.A.C., excl uding wetlands

. EPA is defining coastal waters based on Florida’s definitions of open coastal waters and open ocean waters, taking into account that CWA jurisdiction extends to three nautical miles from shore. 19 EPA’s definition of “coastal waters” is all marine waters that have been classified as Class II (Shellfish Propagation or Harvesting) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) water bodies pursuant to Section 62

- 302.400, F.A.C. , extending to three nautical miles from shore that are not classified as estuaries. EPA’s proposed rule defines “marine waters” to mean surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 milligrams per lite r (mg/L).

F.A.C. for more details. 19 While CWA jurisdiction, and therefore EPA’s proposed criteria, extend only to three nautical miles from shore (CWA section 502(8)), Florida State jurisdiction extend s beyond three nautical miles. Florida’s seaward boundary in Gulf of Mexico waters is 3 marine leagues (9 nautical miles) and in Atlantic waters is 3 nautical miles (Submerged Lands Act of 1953. < http://www.boem.gov/uploadedFiles/submergedLA.pdf > ; UNITED STATES v. FLORIDA, 363 U.S. 121 (1960))

. Florida defines open coastal waters as “all gulf or ocean waters that are not classified as estuaries or open ocean waters.” Open ocean waters consist of “all surface waters extending seaward from the most se award natural 90

- foot (15

- fathom) isobath” (Subsection 62

- 303.200, F.A.C.).Page 20 of 221 EPA is defining tidal creeks as relatively small coastal tributaries with variable salinity that lie at the transition zone between terrestrial uplands and the open estuary

. For another subset of marine waters, marine lakes, EPA is proposing to use the definition of “marine waters” and the definition of lakes included previously in Water Quality Standards for the State of Florida’s Lakes and Flowing Waters (40 CFR 131.43) to define a marine lake as a slow

- moving or standing body of marine water that occupies an inland basin that is not a stream, spring, or wetland.
EPA previously defined “flowing waters” in Water Quality Standards for the State of Florida’s Lakes and Flowing Waters (40 CFR 131.43) . A flowing water is defined as “a free

- flowing, p redominantly fresh surface water in a defined channel, and includes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies.” Consistent with EPA’s definition in 40 CFR 131.43, EPA defines “canal” for this proposed rule to mean a trench, the bottom of which is normally covered by water with the upper edges of its two sides normally above water. Also as defined in 40 CFR 131.43, “predominantly fresh waters” mean s surface waters in which the chloride concentration at the surface i s less than 1,500 mg/L. EPA is not proposing criteria for areas currently managed by the State as wetlands (such as sloughs in south Florida), which are outside the scope of this rulemaking

. 20

20 FDEP. 2001. Chapter 2: Ecological Description. In: Everglades Phosphorus Criterion Technical Support Document . Part III: WCA

- 3/ENP. Florida Department of Environmental Protection , Everglades Technical Support Section. < http://www.dep.state.fl.us/water/wqssp/everglades/docs/pctsd/IIIChapter2.pdf >. Accessed January, 10, 2011. Doherty, S.J., C.R. Lane, and M.T. Brown . 2000. Proposed Classification for Biological Assessment of Florid a Inland Freshwater Wetlands. Report to the Florida Department of Environmental Protection

. Contract No. WM68 (Development of a Biological Approach for Assessing Wetland Function and Integrity)

. Center for Wetlands , University of Florida , Gainesville, FL. Ogden, J.C. 2005. Everglades ridge and slough conceptual ecological model. Wetlands 25(4):810

- 820.Page 21 of 221 C. What Entities May Be Affected By This Rule? Citizens concer ned with water quality in Florida may be interested in this rulemaking. Entities discharging nitrogen or phosphorus to estuaries, coastal waters , and flowing waters in Florida could be indirectly affected by this rulemaking because water quality standards are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits. Examples of c ategories and entities that may ultimately be affected are listed in the following table : Category Examples of potentially affected entities Industry Industries discharging pollutants to estuaries, coastal waters and flowing waters in the State of Florida. Municipalities Publicly

- owned treatment works discharging pollutants to estuaries, coastal waters and flowing waters in the State of Flori da. Stormwater Management Districts Entities responsible for managing stormwater runoff in the State of Florida.

This table is not intended to be exhaustive, but rather provides a guide for entities that may be indirectly affected by this action. Other types of entities not listed in the table , such as non

- point source contributors to nitrogen and phosphorus pollution in Florida’s waters, may be affected through implementation of Florida’s water quality standards program (e.g., through Basin Manage ment Action Plans (BMAPs)). Any parties or entities conducting activities within Florida watersheds covered by this proposed rule, or who depend upon or contribute to the water quality of the estuaries, coastal waters , and flowing waters of Florida, may be affected by this rule. To determine whether your facility or activities may be affected by this action, you should examine this proposed rule

. If you have questions regarding the applicability of this action to a particular entity, consult the person list ed in the preceding FOR FURTHER INFORMATION CONTACT section.Page 22 of 221 D. What Should I Consider as I Prepare My Comments for EPA?
1

. Submitting CBI . Do not submit confidential business information (CBI) to EPA through htt p://www.regulations.gov or e - mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD

- ROM that you mail to EPA, mark the outside of the disk or CD

- ROM as CBI and then identify electronically within the disk or CD

- ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted f or inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments . When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date , and page number).

• Follow directions

-- The agency may ask you to respond to specific questions or organize comments by referencing a Code of F ederal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you es timate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.Page 23 of 221 • Make sure to submit your comments by the comment period deadline identified.

Commenters who submitted public comments or scientific information on the portions of EPA’s January 26, 2010 proposed Water Quality Standards for the State of Florida’s Lakes and Flowing Waters (75 FR 4173) that are add ressed in this proposal should reconsider their previous comments in light of the new information presented in this proposal and must re

- submit their comments during the public comment period for this rulemaking to receive EPA response.

E. How Can I Get C opies of This Document and Other Related Information?
1. Docket . EPA has established an official public docket for this action under Docket Id.
No. EPA

- HQ

- OW

- 2010

- 0222

. The official public docket consists of the document specifically referenced in this ac tion, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include CBI or other information whose disclosure is restricted by statute. The official public docket is t he collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1 301 Constitution Ave., NW, Washington, DC
20004. Th is Docket Facilit y is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holida ys. The Docket telephone number is 202

- 566

- 2426

. A reasonable fee will be charged for copies.
2. Electronic Access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/

. An electronic version of the public docket is availablePage 24 of 22 1 through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.regulations.gov to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. For additional information about EPA's public docket , visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm

. Although not all docket materials may be available electronically, you may still access any of the publicly availa ble docket materials through the Docket Facilit y identified in Section I. E( 1 )

. II. Background A. Nitrogen and Phosphorus Pollution
1. What is Nitrogen and Phosphorus Pollution?

a . Overview of Nitrogen and Phosphorus Pollution
E xcess loading of nitrogen and phosphorus to surface water bodies and groundwater is one of the leading causes of water quality impairments in the United
States. 21 The problem extends to both fresh and marine water s, 22 leading to over 15,000 nutrient pollution

- related impairments in 49 states across the country

— a figure that may substantially understate the problem as many waters have yet to be assessed. 23 Estuaries

21 D ubrovsky, N.M., K.R. Burow, G.M. Clark, J.M. Gronberg, P.A. Hamilton, K.J. Hitt, D.K. Mueller, M.D. Munn, B.T. Nolan, L.J. Puckett, M.G. Rupert, T.M. Sh ort, N.E. Spahr, L.A. Sprague, and W.G. Wilber. 2010. The Quality of our Nation’s waters

— Nutrients in the Nation’s Streams and Groundwater, 1992

– 2004. Circular 1350. U.S. Geological Survey, National Water Quality Assessment Program, Reston, VA. < http://water.usgs.gov/nawqa/nutrients/pubs/circ1350 >. Accessed December 2011. 22 Smith, V.H., S.B. Joye, and R.W. Howarth. 2006. Eutrophication of freshwater and coastal marine ecosystems

. Lim nol ogy and Oceanogr aphy 51(1, part 2) : 351

- 355

. Schindler, D.W. 2006. Recent advances in the understanding and management of eutrophication. Limnology and Oceanography 51 (1, part2) :356

– 363. 23 Nationally, only 27% of rivers and streams and less than 50% of l akes, reservoirs, and ponds have been assessed for impairment (USEPA. 2011. National Summary of State Information . U.S. EnvironmentalPage 25 of 221 and coastal waters are especially vulnerable to nitrogen and phosphorus pollution becau se they are the ultimate receiving waters for most major watersheds transporting nitrogen and phosphorus loadings from multiple upstream sources. 24 The problem of nitrogen and phosphorus pollution is not new. Over forty years ago, a 1969 report by the Natio nal Academy of Sciences 25 noted that “ [m]an’s activities, which introduce excess nutrients, along with other pollutants, into lakes, streams, and estuaries, are causing significant changes in aquatic environments. The excess nutrients greatly accelerate the process of eutrophication. T he pollution problem is critical because of increased population, industrial growth, intensification of agricultural production, river

- basin development, recreational use of waters, and domestic and industrial exploitation of s hore properties. Accelerated eutrophication causes changes in plant and animal life

– changes that often interfere with use of water, detract from natural beauty, and reduce property values.” A 2000 report by the National Research Council 26
concluded that “ ...scientists, coastal managers, and public decision

- makers have come to recognize that coastal ecosystems suffer a number of environmental problems that can, at times, be attributed to the introduction of excess nutrients from upstream watersheds. The probl ems are caused by a complex chain of events and vary from site to site, but the Protection Agency, Watershed Assessment, Tracking & Environmental Results. < http://iaspub.epa.gov/waters10/attains_nation_cy.control >. Accessed January 2012). 24 Bri cker, S., B. Longstaff, W. Dennison, A. Jones, K. Boicourt, C. Wicks, and J. Woerner. 2007. Effects of Nutrient Enrichment in the Nation’s Estu aries: A Decade of Change . NOAA Coastal Ocean Program Decision Analysis Series No. 26. National Centers for Coastal Ocean Science, Silver Spring, MD. < http://ccma.nos.noaa.gov/publications/eutroupdate/ > Accessed January 2012. National Research Council. 2000. Clean Coastal Waters: Understanding and Reducing the Effects of Nutrient Pollution . Report prepared by the Ocean Study Board and Water Science and T echnology Board, Commission on Geosciences, Environment and Resources, National Resource Council, Washington, DC

. 25 National Academy of Sciences. 1969. Eutrophication: Causes, Consequences, Correctives

. National Acade my of Sciences, Washington, DC. 26 Natio nal Research Council. 2000. Clean Coastal Waters: Understanding and Reducing the Effects of Nutrient Pollution . Report prepared by the Ocean Study Board and Water Science and Technology Board, Commission on Geosciences, Environment and Resources, National Resource Council, Washington, DC

.Page 26 of 221 fundamental driving force is the accumulation of nitrogen and phosphorus in fresh water on its way to the sea.” Florida has long struggled with nutrient pollution impacts to i ts surface and ground waters. Florida's flat topography makes Florida particularly susceptible to nitrogen and phosphorus pollution because water move s more slowly over the landscape, allowing time for nitrogen and phosphorus pollution to accumulate in wat er bodies and cause eutrophication. Florida’s high rainfall levels contribute to increased run

- off, and higher temperatures and sunlight contribute to eutrophication when excess nutrients are available

. 27
In FDEP’s 201 2 Integrated Water Quality Assessment for Florida: 201 2 305(b) Report and 303(d) List Update , nutrient pollution i s ranked as the fifth major cause of estuary impairments by impaired square miles 28 and the fifth major cause of impairments in coastal waters. 29 FDEP documents nutrient pollution impairments in 754 square miles ( 482,560 acres) of estuaries (about 14 percent of the estuarine area assessed by Florida) and 102 square miles (65,280 acres) of coastal waters (about 1. 6 percent of the assessed coastal waters). 30

27 Perry, W.B. 2008. Everglades restoration and water quality challenges in south Florida. Ecotoxicology 17:569

- 578. 28 First, second, third, and fourth major causes of estuary impairments by impaired square miles are mercury in fish, DO, bacteria in shellfish, and fecal coliform, respectively. 29 FDEP. 2012. Integrated Water Quality Assessment for Florida: 2012 305(b) Report and 303(d) List Upda te. (May 2012). Florida Department of Environmental Protection, Division of Environmental Assessment and Restoration, Tallahassee, FL. < http://www.dep.state.fl.us/water/docs/201 2_integrated_report.pdf >. Accessed August 2012. 30 FDEP. 2012. Integrated Water Quality Assessment for Florida: 2012 305(b) Report and 303(d) List Update. (May 2012). Florida Department of Environmental Protection, Division of Environmental Assessment and R estoration, Tallahassee, FL. <http://www.dep.state.fl.us/water/docs/2012_integrated_report.pdf>. Accessed August 2012.Page 27 of 221 FDEP noted in its 2008 Int egrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update that nitrogen and phosphorus pollution poses several challenges in Florida. FDEP stated , “The close conn ection between surface and groundwater , in combination with the pressures of continued population growth, accompanying development, and extensive agricultural operations, present Florida with a unique set of challenges for managing both water quality and quantity in the future. After trending downward for 20 years, beg inning in 2000 phosphorus levels again began moving upward, likely due to the cumulative impacts of non - point source pollution associated with increased population and development. Increasing pollution from urban stormwater and agricultural activities is h aving other significant effects.” 31 To better understand the nitrogen and phosphorus pollution problem in Florida,
EPA looked at trends in the data Florida uses to create its Integrated Water Quality Reports, 32 and found increasing concentrations of nitroge n and phosphorus compounds in Florida waters over the 12 year period from 1996

- 2008. Florida’s Impaired Waters Rule (IWR) data indicate that levels of total nitrogen have increased approximately 20 percent from a state

- wide average of 1.06 mg/L in 1996 to 1.27 mg/L in 2008 and average state

wide total phosphorus levels have increased approximately 40 percent from an average of 0.108 mg/L in 1996 to 0.151 mg/L in 2008. On a national scale, the primary sources of nitrogen and phosphorus pollution can be group ed into five major categories: (1) urban and suburban stormwater runoff

—

31 FDEP. 2008. Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update . Florida Department of Environme ntal Protection , Division of Environmental Assessment and Restoration, Tallahassee, FL . <http://www.dep.state.fl.us/water/docs/2008_Integrated_Report.pdf>. Accessed July 2011. 32 IWR Run 40. Updated through February 2010.Page 28 of 221 sources associated with residential and commercial land use and development; (2) municipal and industrial wastewater discharges; (3) row crop agriculture and fertilizer use; (4) livest ock production and manure management practices; and (5) atmospheric deposition resulting from nitrogen oxide emissions from fossil fuel combustion and ammonia emissions from row crop agriculture and livestock production. Land use and land cover in watershe ds across much of the nation has been altered such that now a higher fraction of nitrogen and phosphorus applied to the landscape reaches surface and groundwater resources. These sources contribute loadings of anthropogenic nitrogen and phosphorus to surface and groundwaters, and may cause far

- reaching harmful impacts to aquatic ecosystems and imbalances in the natural populations of aquatic flora and fauna. 33 In general, the major sources of nitrogen and phos phorus pollution in Florida estuarine and coastal waters are the same as those found at the national scale: urban and suburban stormwater runoff, wastewater discharges, row crop agricultur e , livestock production , and atmospheric deposition. A s is the ca se with much of the southern United States, Florida’s population continues to grow, with Florida among the top ten fastest growing states. 34 Florida’s population growth is concentrated in major cities and along the coast. As of 2005, Florida’s highest popul ation density was along its eastern coast ; there has also been significant population expansion along the western coast from Tampa to the south. As populations grow, the increased nitrogen and phosphorus pollution

33 State

- EPA Nutrient Innovations Ta sk Group. 2009. An Urgent Call to Action: Report of the State

- EPA Nutrient Innovations Task Group

. < http://water.epa.gov/s citech/swguidance/standards/criteria/nutrients/upload/2009_08_27_criteria_nutrient _nitgreport.pdf > Accessed May 2012. 34 U.S. Census Bureau. 2011. Population Distribution and Change: 2000 to 2010

. < http://www.census.gov/prod/cen2010/briefs/c2010br

- 01.pdf >. Accessed July 2011. Comment [E16]: OMB edit accepted.
Comment [E17]: OMB edit accepted.

Comment [E18]: OMB edit accepted.Page 29 of 221 resulting from increased urban stormwater runoff, municipal wastewater discharges, air deposition, and agricultural livestock activities and row

- crop ru noff can place increased stress on all ecosystems. In nearly half of the estuaries examined for this rulemaking, urban or stormwater runoff i s a major contributor of nitrogen and phosphorus pollution. For example, a report issued in 2010 by the Sarasota Bay Estuary Program indicates that in Sarasota Bay , nutrients are primarily transported to the estuary by stormwater runoff , which is the predo minant source in all segments of the estuary (42

- 60 percent of the total nitrogen load)

. 35 Similarly, a ccording to the Tampa Bay Estuary Program, the largest source of nitrogen to Tampa Bay is also runoff (63 percent of total nitrogen loadings to Tampa Bay from 1999

– 2003). 36 Impervious land cover is a large driver of stormwater volume. In 2005 , one study estimated that 7 percent of Florida’s area had total impervious area greater than 20 percent, and of that, a quarter of that land had total impervious area
g reater than 40 percent. As Florida’s population grows, it is likely that the resulting expansion of impervious cover will caus e i ncreased harmful impact s on water quality in coastal areas, wetlands, and other aquatic ecosystems. 37 Wastewater is also a significant contributor of nitrogen and phosphorus pollution. In Florida, there are 443 domestic (not including septic systems) and industrial

35 SBEP. 2010. Numeric Nutrient Criteria for Sarasota Bay

. Prepared for the Sarasota Bay Estuary Program by J anicki Environmental, Inc . <http://www.sarasotabay.org/documents/SBEP

- NNC

- Final

Report.pdf>. Accessed August 2011. 36 TBEP. No date. About the Tampa Bay Estuary Program, State of the Bay: Water and Sediment Quality

. Tampa Bay Estuary Program. < http://www.tbep.org/tbep/stateofthebay/waterquality.html >. Accessed January 2012. 37 Exum, L.R., S.L. Bird, J. Harrison, and C.A. Perkins. 2005. Estimating and Projecting Impervious Cover in the So utheastern United States

. EPA/600/R

- 05/061. U.S. Environmental Protection Agency , Office of Research and Development, Washington, DC. Comment [E19]: OMB edits accepted.

Comment [E20]: OMB edit accepted.Page 30 of 221 wastewater dischargers with individual NPDES permits

. 38 O f those facilities , 198 are classifi ed as domestic (municipal) wastewater facilities, which treat sanitary wastewater or sewage from homes, business es , and institutions. The other 245 facilities are classified as industrial wastewater facilities. About one third of Florida’s population uses on - site sewage treatment and disposal (septic tanks) t o treat wastewater

. 39 In Florida, fewer than a quarter of individually permitted domestic and industrial facilities are authorized to discharge to surface waters. The remaining permittee s are authorized to discharge solely to groundwater through land

- application, beneficial reuse of reclaimed water , or deep well injection

. Domestic wastewater treatment facilities permitted by F DEP produce over 1.5 billion gallons of treated effluent and reclaimed water per day, with a total treatment capacity of over 2.5 billion gallons per day. Eighteen percent of domestic wastewater treatment facil ities have treatment capacities greater than 500,000 gallons per day, whereas 73 percent of domestic wastewater treatment facilities have capacities less than 100,000 gallons per day. 40 Wastewater has been cited as contributing to negative impacts on water quality in

some areas. On the east coast of Florida, septic systems contribute an estimated 1.5

38 Facilities with NPDES permits either discharge to surface waters or ground waters, using methods that include land applic ation, beneficial reuse of reclaimed water, and deep well injection. USEPA

. 2011. Permit Compliance System Database. U.S. Environmental Protection Agency. < http://www.epa.gov/env iro/facts/pcs/customized.html > . Accessed June 2011. There are also 34,508 dischargers covered under generic or general permits, which FDEP regulates based on categories of wastewater facilities or activities that involve the same or similar types of operat ions or wastes. 39 FDEP. 2011. General Facts and Statistics about Wastewater in Florida

. Florida Department of Environmental Protection. < http://www.dep.state.fl.us/water/wastewater/facts.htm >. Accessed January 2012. 40 FDEP. 2011. Wastewater Program . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/water/wastewater/index.htm> Accessed January 2012.Page 31 of 221 million pounds of nitrogen per year to Florida’s Indian River Lagoon. 41 There have been

so me successes in reducing the impact of wastewater on marine waters. In Tampa Bay, wastewater treatment plants were one of the major sources of nitrogen prior to the institution of tertiary nitrogen removal. This treatment has contributed to an improvement in Tampa Bay’s water quality. 42 There have been a number of studies examining the sources of nitrogen and phosphorus pollution in waters across Florida. One area of study is Biscayne Bay, located on the southeast coast of Florida, adjacent to Miami. Nutrie nt pollution in the B ay comes from a number of key sources that vary geographically : stormwater runoff from urban areas, discharges from the Black Point Landfill and Sewage Treatment Plant, agricultural runoff from canals in the South Dade agricultural bas in, and contaminated ground
water. 43 In the northern section of the B ay, there are inputs from five canals, a landfill, and urban runoff. The southern section of the B ay has a greater contribution from agricultural sources. 44 In one study, researchers found that canals conveying waters from agricultural and urban areas contributed 88 percent and 66 percent of the B ay’s total dissolved inorganic nitrogen and total phosphorus loads, respectively. 45

41 USEPA

. 2003. E PA Voluntary National Guidelines for Management of Onsite and Clustered (Decentralized) Wastewater Treatment Systems . EPA

- 832

- B

- 03

- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. <http://www.epa.gov/owm/septic/pubs/septic_guidel ines.pdf>. Accessed August 2011. 42 Johansson, J.O.R. , and H.S. Greening. 2000. Seagrass R estoration in Tampa Bay: A R esource - bas ed Approach to Estuarine Manage ment. Chapter 20 In: Seagrasses: Monitoring, Ecology, Physiology, and M

anagemen t , ed. S.A. Borto ne, pp. 279

– 293

. CRC Press, Boca Raton, FL. 43 Caccia, V.G. , and J.N. Boyer. 2007. A nutrient loading budget for Biscayne Bay, Florida. Marine Pollution Bulletin 54(7) : 994

– 1008. Caccia, V.G. , and J.N. Boyer. 2005. Spatial patterning of water quality in Biscayne Bay, Florida as a function of land use and water management. Marine Pollution Bulletin 50( 11 ) : 1416

– 1429

. 44 Caccia, V.G. , and J.N. Boyer. 2005. Spatial patterning of water quality in Biscayne Bay, Flori da as a function of land use and water management. Marine Pollution Bulletin 50( 11 ) : 1416

– 1429. 45 Caccia, V.G. , and J.N. Boyer. 2007. A nutrient loading budget for Biscayne Bay, Florida. Marine Pollution Bulletin 54(7) : 994

– 1008.Page 32 of 221 b. Adverse Impacts of Nitrogen and Phosphorus Pollution on Aquat ic Life
N itrogen and phosphorus pollution in surface and ground waters degrade water quality and negatively impact aquatic life through processes associated with eutrophicatio n. 46 Eutrophication is a predictable, well

- understood, and widely

documented biological process by which anthropogenic nitrogen and phosphorus pollution results in increased growth of algae (plankton and periphyton). 47

46 Eutrophication is the proc ess by which a water body becomes enriched with organic material, which is formed by primary productivity (i.e., photosynthetic activity) and can be stimulated to harmful levels by the anthropogenic introduction of high concentrations of nutrients

— particul arly nitrogen and phosphorus ( N ational R esearch C ouncil . 2000. Clean Coastal Waters: Understanding and Reducing the Effects of Nutrient Pollution

. Report prepared by the Ocean Study Board and Water Science and Technology Board, Commission on Geosciences, E nvironment and Resources, National Resource Council, Washington, DC

. See also Nixon. S.W. 1995. Coastal marine eutrophication: A definition, social causes, and future concerns. Ophelia 41:199

- 219.) 47 Cambridge, M.L., J.R. How, P.S. Lavery, and M.A. Vanderklift. 2007. Retrospective analysis of epiphyte assemblages in relation to seagrass loss in a eutrophic coastal embayment. Marine Ecology Progress Series 346:97

- 107. Frankovich, T.A., and J.W. Fourqurean. 1997. Seagrass epiphyte loads along a nutrien t availability gradient, Florida Bay, USA. Marine Ecology Progress Series 159:37

- 50. Peterson, B.J., T.A. Frankovich, and J.C. Zieman. 2007. Response of seagrass epiphyte loading to field manipulations of fertilization, gastropod grazing and leaf turnover rates. Journal of Experimental Marine Biology and Ecology 349(1):61

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– 384

. Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. Likens, P.A. Matson, D.W. Schindler, W.H. Schlesinger, and D.G. Tilman . 1997. Human alteration of the global nitrogen cycle: Sources and consequences. Ecological Applications 7(3):737

- 750. Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Model ling 169(1):39

- 60. Bricker, S.B., B. Longstaff, W. Dennison, A. Jones, K. Boicourt, C. Wicks, and J. Woerner. 2008. Effects of nutrient enrichment in the nation's estuaries: A decade of change. Harmful Algae 8(1):21

- 32. Boyer, J.N., C.R. Kelble, P.B. Ortne r, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indicators 9(6, Supplement 1):S56

- S67. Hutchinson, G.E. 1961. The paradox of plank ton. American Naturalist 95:137

- 145. Piehler, M.F., L.J. Twomey, N.S. Hall, and H.W. Paerl. 2004. Impacts of inorganic nutrient enrichment on phytoplankton community structure and function in Pamlico Sound, NC, USA. Estuarine Coastal and ShelfPage 33 of 221 Nitrogen and phosphorus pollution increases algal growth that negatively impacts many aspects of ecological communities. As algae grow th accelerate s in response to nutrient pollution , there may be negative changes in algal species composition and competition among species, leading to harmful, adverse effects, su ch as the increased growth or dominance of toxic or otherwise harmful algal species. 48 These harmful algal blooms (HABs) can contain undesirable species of diatoms, cyanobacteria, and dinoflagellates, which are known to generate toxins that are a threat to both aquatic life and recreational activities. 49 Many nuisance taxa of algae are also less palatable to aquatic organisms that consume phytoplankton , so prolonged HABs can impact the food

Science 61(2 ):197

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- term trends in the distribution of phytoplankton in Chesapeake Bay: roles of light, nutrients, and streamflow. Marine Ecology Progress Series 104:267

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. Hagy, J.D., J.C. Kurtz, and R.M. Greene. 2008. An Approach for Developing Numeric Nutrient Criteria for a Gulf Coast Estuary . U.S. Environmental Protection Agency, Office of Research and Development, National Health and Environmental Effects Research Laboratory, Research Triangle Park, NC., EPA 600R

08/004, 44 pp. 48 Paerl, H.W. 1988. Nuisance phytoplankton blooms in coastal, estuarine, and inland waters. Limn ology and Oceanography 33(4):823

- 847. Anderson, D.M., P.M. Glibert, and J.M. Burkholder. 2002. Harmful algal blooms and eutrophication: Nutrient sources, composition, and consequences. Estuaries 25(4):704

- 726. Anderson, D.M., J.M. Burkholder, W.P. Cochlan, P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, M.L. Parsons, J.E.J. Rensel, D.W. Townsend, V.L. Trainer, and G.A. Vargo. 2008. Harmful algal blooms and eutrophication: Examining linkages from selected coastal regions of the United States. Harmful Alga e 8(1):39

- 53. 49 Anderson, D.M., P.M. Glibert, and J.M. Burkholder. 2002. Harmful algal blooms and eutrophication: Nutrient sources, composition, and consequences. Estuaries 25(4):704

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- 326A. Anderson, D.M., J.M. Burkholder, W.P. Cochlan, P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, M.L. Parsons, J.E.J. Rensel, D.W. Townsend, V.L. Trainer, and G.A. Vargo. 2008. Harmf ul algal blooms and eutrophication: Examining linkages from selected coastal regions of the United States. Harmful Algae 8(1):39

- 53.Page 34 of 221 supply of the overall aquatic community

. More than 100 HAB species ha ve been identified in the United States

. 50
Mari ne and fresh waters of the United States are increasingly being negatively impacted by HABs. 51 HAB toxins have been linked to illnesses and deaths of marine animals, including sea lions, turtles, fish, seabirds, dolphins, and manatees. 52 Diatoms in HABs, such as Pseudo

- nitzschia , produce domoic acid

. 53 Domoic acid has been shown to accumulate in the tissue of mussels, crabs, and fish, causing their predators to become ill or die. 54 Domoic acid poisoning has been reported as the cause of death of humpback whales in the Gulf of Maine in 2003 and sea lions in California's Monterey Bay during May and June of 1998. 55 Other toxin

- producing algal species that have been linked to harmful, adverse aquatic life impacts include Pfisteria piscicida , which produces several

50 Abbott, G.M., J.H. Landsberg, A.R. Reich, K.A. Steidinger, S. Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida

. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Institute, St. Petersburg, FL

. <http://myfwc.com/research/redtide/task

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- florida/> Accessed June 2011. 51 Dortch, Q., P. Glibert, E. Jewett, and C. Lopez. 2008. Introduction. Chapter 1 In: HAB RDDTT 2 National Workshop Report , A plan for Reducing HABs and HAB Impacts . eds. Q. Dortch, D.M. Anderson, D.L. Ayres, and P.M. Glibert, pp. 5

- 12. Woods Hole, MA. 52 WHOI. 2008. Marine Mammals . Woods Hole Oceanographic Institution. < http://www.whoi.edu/redtide/page.do?pid=14215 >. Accessed June 2011. WHOI. 2008. HAB Impacts on Wildlife . Woods Hole Oceanographic Institution. < http://www.whoi.edu/redtide/page.do?pid=9682 >. Accessed June 2011. NOAA. 2011. Overview of Harmful Algal Blooms . National Oceanic and Atmospheric Administration , Center for Sponsored Coastal Ocean Research

. <http://www.cop.noaa.gov/stressors/extremeevents/hab/default.aspx>. Accessed June 2011. 53 Thessen, A.E. , and D.K. Stoecker. 2008. Distribution, abundance and domoic acid analysis of the toxic diatom genus Pseudo

- nitzschia from the Chesapeake Bay

. Estuaries and Coasts 31:664

- 672. 54 Bushaw

- Newton, K.L., and K.G. Sellner. 1999. Harmful Algal Blooms. In: NOAA's State of the Coast Report . National Oceanic and Atmospheric Administration, Silver Spring, MD. <http://oceanservice.noaa.gov/websites/retire dsites/sotc_pdf/hab.pdf>. Accessed June 2011. 55 MBARI. 2000, January 5. Molecular Probes Link Sea Lion Deaths to Toxic Algal Bloom . MBARI News and Information. Monterey Bay Aquarium Research Institute. <http://www.mbari.org/news/news_releases/2000/jan06_sc holin.html>. Accessed June 2011.Page 35 of 221 toxins that impact fish and humans 56 and the flagellate Heterosigma akashiwo which produce s an ichthyotoxin that kills fish

. 57 Secondly, excessive algal growth as a result of nitrogen and phosphorus pollu tion reduc es water clarity, resulting in reduced light availability for macrophytes and
seagrasses. 58 Seagrasses cover approximately 2.7 million acres throughout the State and are a central ecological feature of Florida’s dynamic, highly productive marine

e cosystems. 59 A substantial body of scientific research has linked nitrogen and phosphorus pollution , and subsequent reduced light availability , to seagrass decline

. Excessive n utrient input s increase phytoplankton biomass and thereby increase water column light attenuation , which limits the light available for seagrass photosynthesis. This results in reduced growth and increased mortality of seagrasses

. In addition, nitrogen and phosphorus pollution can lead to e xcess growth of epiphytic alga e on seagrasses that

56 Waring G.T., E. Josephson, K. Maze

- Foley, and P.E. Rosel, eds. 201 0

. Humpback Whale (Megaptera novaeangliae ): Gulf of Maine Stock (December 2009)

. In : U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments

– 20 10 , NOAA Technical Memorandum NMFS

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- 219. National Oceanic and Atmospheric Administration, National Marine Fisheries Service , Northeast Fisheries Science Center, Woods Hole, MA. < http://www.nefsc.noaa.gov/publications/tm/tm219/>. Accessed January 2012. 57 Rensel, J.E.J. 2007. Fish kills from the harmful alga Heterosigma akashiwo in Puget Sound: Recent blooms and review . Prepared for National Oceanic and Atmospheric Administration, Center for Sponsored Coastal Ocean Research, by Rensel Associates Aquatic Sciences, Arlington, Washington , in cooperation with American Gold Seafoods, LLC . <http://www.whoi.edu/fileserver.do?id=39383&pt=2&p=29109>. Accessed January 2012. 58 Vitousek, P.M., J.D. Aber, R.W. Howarth , G.E. Likens, P.A. Matson, D.W. Schindler, W.H. Schlesinger, and D.G. Tilman. 1997. Human alteration of the global nitrogen cycle: Sources and consequences. Ecological Applications 7(3):737

- 750. Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integr ated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. Bricker, S.B., B. Longstaff, W. Dennison, A. Jones, K. Boicourt, C. Wicks, and J. Woerner. 2008. Effects of nutrient enrichment in the nation's estuaries: A dec ade of change. Harmful Algae 8(1):21

- 32. Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indic ators 9(6, Supplement 1):S56

- S67. 59 FFWCC. 2003. Conserving Florida's Seagrass Resources: Developing a Coordinated Statewide Management Program . Florida Fish and Wildlife Conservation Commission, Florida Marine Research Institute, St. Petersburg, FL.Page 36 of 221 blocks the light available to seagrasses and affects seagrass growth. 60 This reduction of seagrass communities, in turn, results in harmful, adverse impacts such as destabilization of sediments , which causes the release of more nutrient s into the wate r column. 61 The role that nitrogen and phosphorus pollution plays in the decline of seagrass has been studied extensively in Florida. 62 In a report published by USGS in 2001, s ix of nine Florida estuaries located along the Gulf Coast show ed declines in seagr ass coverage, the predominant causes of which we re nitrogen and phosphorus pollution , dredging, propeller scarring, hydrologic alterations, increased turbidity, and chronic light reduction. 63 Florida Fish & Wildlife Conservation Commission has noted several areas of significant seagrass decline between 1950 and 2000, including 72 percent loss in St

. Joseph Sound, 43 percent loss in the northern section of Biscayne Bay near Miami, 40 percent loss in Tampa Bay, 30 percent loss in the Indian River Lagoon, and 2 9 percent loss in Charlotte Harbor. These losses coincided with population growth in these

60 Duarte, C.M. 1991. Seagrass depth limits. Aquatic Botany 40(4):363

- 377. 61 Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. Ecological Indicators 9(6, Supplement 1):S56

- S67. 62 Dawes, C.J., R.C. Phillips, and G. Morrison. 2004. Seagrass Communities of the Gulf Coast of Florida: Status and Ecology , Final Report

. Technical Publication #03

- 04. Florida Fish and Wild life Conservation Commission , Fish and Wildlife Research Institute , and the Tampa Bay Estuary Program , St. Petersburg, FL. Tomasko, D.A., C.A. Corbett, H.S. Greening, and G.E. Raulerson. 2005. Spatial and temporal variation in seagrass coverage in Southwes t Florida: assessing the relative effects of anthropogenic nutrient load reductions and rainfall in four contiguous estuaries. Marine Pollution Bulletin 50:797

– 805. Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck Jr., A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. Bioscience 56:987

- 996. Burkholder, J.M., D.A. Tomasko, and B.W. Touchette. 2007. Seagrasses and eutrophicatio n. Journal of Experimental Marine Biology and Ecology 350:46

- 72. Collado

- Vides, L., V.G. Caccia, J.N. Boyer, and J.W. Fourqurean. 2007. Tropical seagrass

- associated macroalgae distributions and trends relative to water quality. Estuarine, Coastal and Shelf Science 73:680

- 694. 63 USGS. 2001. Seagrass Habitat In the Northern Gulf of Mexico: Degradation, Conservation, and Restoration of a Valuable Resource . 855

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- 001. U.S. Geological Survey, Gulf of Mexico Habitat Program Team. < http://gulfsci.usgs.gov/gom_i ms/pdf/pubs_gom.pdf >. Accessed July 2011.Page 37 of 221 watersheds, and resulted from human activities such as fertilizer use in residential and agricultural areas and construction projects which contribute high levels of suspended sediments. 64 Several studies have attributed declines in seagrass to excess chlorophyll a and phytoplankton in the water column which can increase light attenuation. One study conducted from 1989

- 1991 found that excess chlorophyll a caused light attenuation of 16 to 28 percent across Charlotte Harbor and Tampa Bay

. In the same study , the authors
note d an overall improvement in seagrass recolonization and a real cover in Hillsborough Bay and other parts of Tampa Bay starting in the late 1980s coinciding with decreased nutrient loading, which resulted in decreased concentrations of chlorophyll a and increased water clarity. 65 A later study, which conducted samp ling monthly between June 1998 and July 1999, estimated that phytoplankton biomass contribute d approximately 29 percent of total water column light attenuation in Lemon Bay , Florida

. The authors predicted a continuation in the potential decline of seagrass es with increased urbanization. 66 Lastly, excessive algal growth also leads to low dissolved oxygen (DO) potentially creating hypoxic and anoxic conditions that cannot support aquatic life and thereby can change the balance of natural populations of aquatic fauna expected to

occur . 67 Hypoxia is typically defined as DO < 2 mg/L, and anoxia as DO < 0.1 mg/L. 68

64 FFWCC. 2002. Florida’s Seagrass Meadows: Benefitting Everyone . Florida Fish and Wildlife Conservation Commission, St. Petersburg, FL. < http://www.sarasotabay.org/documents/seagrassbrochure.pdf >. Accessed July 201 1. 65 McPherson, B.F., and R.L. Miller. 1994. Causes of Light Attenuation in Tampa Bay and Charlotte Harbor, Southwestern Florida. Water Resources Bulletin 30(1):43

- 53. 66 Tomasko, D.A., D.L. Bristol, and J.A. Ott. 2001. Assessment of present and future nitr ogen loads, water quality, and seagrass ( Thalassia testudinum ) depth distribution in Lemon Bay, Florida. Estuaries 24(6A):926

- 938. 67 Vitousek, P.M., J.D. Aber, R.W. Howarth, G.E. Likens, P.A. Matson, D.W. Schindler, W.H. Schlesinger, and D.G. Tilman. 1997. Human alteration of the global nitrogen cycle: Sources and consequences.Page 38 of 221 The cause and effect relationship between nitrogen and phosphorus pollution and marine hypoxia is clear and well documented in the scientific literature

. 69 Increase d nitrogen and phosphorus inputs lead to excessive algal growth and organic matter loading to bottom
waters

. Bacterial decomposition of the orga nic matter consumes oxygen and depletes the water column of DO. 70 In estuaries and coastal waters, low DO is one of the most widely reported consequences of nitrogen and phosphorus pollution and one of the best predictors of a range of biotic impairments. 71 Low DO causes negative impacts to aquatic life ranging from mortality to chronic impairment of growth and reproduction. 72 When nitrogen and phosphorus pollution creates adverse conditions that result in large hypoxic

zone s , substantial negative changes in f ish, benthic, and plankton communities may

occur. 73 This include s avoidance of these areas by fish , mobile benthic invertebrates

Ecological Applications 7(3):737

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- 004. U.S. Environmental Protection Agency, Office of Research and Development, National Health and Environmental Effects Research Laboratory, Gulf Ecology Division, Gulf Breeze, FL. 69 Conley, D., J. Carstensen, R. Vaquer

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. , S.B. Bricker and D.E. Pirhalla. 2001. Eutrophic Conditions in Estuarine Waters. In: NOAA's State of the Coast Report . National Oceanic and Atmospheric Administration , Silver Spring, MD

. < http://state

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- coast.noaa.gov/bulletins/html/eut_18/eut.html >. Accessed December 2011. 71 Bricker, S.B., J.G. Ferreira, and T. Sima s. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. Bricker, S.B., C.G. Clement, D.E. Pirhalla, S.P. Orlando, and D.R.G. Farrow. 1999. National Estuarine Eutrophication Assessment, Effects of Nu trient Enrichment in the Nation's Estuaries . N ational O ceanic and A tmospheric A dministration, National Ocean Service, Special Projects Office and the National Centers for Coastal Ocean Science. Silver Spring, MD. 72 USEPA. 2001. Nutrient Criteria Technical Guidance Manual, Estuarine and Coastal Marine Waters

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- 402. Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. Jewett, and D.M. Mason. 2009. Ecological impacts of hypoxia on living resources. Journal of Experimental Marine Biology and Ecology 381(Supplement 1):S1

- S3.Page 39 of 221 migrating from the hypoxic area , and fish kills in some systems when fish and other mobile aquatic organisms have nowhere to mig rate away from the areas with low DO

. 74
This can result in negative changes to the benthic invertebrate community structure of estuaries and coastal areas, with increases of organisms more tolerant of low DO

. 75 E ven intermittent hypoxia can cause shifts in t he benthic assemblage to favor resistant o r tolerant organisms, which are less desirable food sources, creating unbalanced benthic communities in the hypoxic zone because fish avoid the area. 76 When hypoxia extends into shallow waters, it affect s spawning a nd nursery areas for many important fish species by reducing the habitat available that protects smaller fish and aquatic organisms , especially juveniles, from predation. 77 Hypoxia has been implicated in a recent increase and late

- summer dominance of hypoxia

- tolerant gelatinous zooplankton (jellyfish and ctenophores) in the Chesapeake Bay and other eastern estuaries. 78 R educed fishery production in hypoxic zones has been documented in the United States and worldwide. 79

74 Howell, P. , and D. Simpson. 1994. Abundance of marine resources in relation to dissolved oxygen in Long Island Sound. Estuaries 17(2):394

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. Kidwell, D.M., A.J. Lewitus, S. Brandt, E.B. Jewett, and D.M. Mason. 2009. Ecological impacts of hypoxia on living resources

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. Biological Bulleti n 182(2):265

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- settlement ingestion rates. Journal of Experimental Marine Biology an d Ecology 181(2):239

- 253. Baker, S.M. , and R. Mann. 1994. Description of metamorphic phases in the oyster Crassostrea virginica and effects of hypoxia on metamorphosis. Marine Ecology Progress Series 104:91

- 99. Baustian, M. , and N. Rabalais. 2009. Season al composition of b enthic m acroinfauna exposed to hypoxia in the northern Gulf of Mexico. Estuaries and Coasts 32(5):975

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- S3. 77 Breitburg, D. 2002. Effects of hypoxia, and the balance between hypoxia and enrichment, on coastal fishes and fisheries. Estuaries 25(4):767

- 781. 78 Grove, M. , and D.L. Breitburg. 2005. Growth and reproduction of gelatinous zooplankton exposed to lowPage 40 of 221 Hypoxia and anoxia in bottom wate rs result in anoxia in the surface sediments, which has geochemical consequences including acidification and release of toxic hydrogen sulfide , soluble reactive phosphorus, and ammonia. 80 The sediment of hypoxic

zones then becomes a potential source of nutr ients that can increase the degree of eutrophication. Systems that have had persistent and chronic hypoxia often fail to recover quickly even after pollution l oadings have been reduced. 81 Reduced oxygen also affects a variety of other biogeochemical process es that can negatively impact water quality, such as the chemical form of metals in the water column. 82
The harmful, adverse impacts of nitrogen and phosphorus pollution on aquatic life have been manifested throughout Florida. The State has been negativel y impacted by algal blooms for many years. Red algae, Laurencia intricata and Spyridia filamentosa ; brown algae, Dictyota sp. and Sargassum filipendula ; and green algae, Enteromorpha sp .,

dissolved oxygen. M arine Ecology Prog ress Series 301 : 185

– 198. 79 Diaz, R.J. , and R. Rosenberg. 2008. Spreading dead zones and consequences for marine ecosystems. Science 321(5891):926

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– water interface nitrogen transformations in a seasonally hypoxic, shallow bay (Corpus Christi Bay, TX, USA). Estuaries and Coasts 31(3):521

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. , X. Hu, W. Huang, M.C. Murrell, J.C. Lehrter, S.E. Lohrenz, W. Chou, W. Zhai, J.T. Hollibaugh, Y. Wang, P. Zhao, X. Guo, K. Gun dersen, M. Dai, and G. Gong. . 2011

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– 770. 81 Conley, D.J., J. Carstensen, G. Ærtebjerg, P.B. Christensen, T. Dalsgaard, J.L.S. Hansen, and A.B. Josefson. 2007. Lon g - term changes and impacts of hypoxia in Danish coastal water. Ecological Applications 17(sp5):S165

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- 430. John Wiley and Sons, New York.Page 41 of 221 Codium isthmocladum , and Halimeda sp. grow in the Florida Bay area. 83 At times their increased growth has threatened the commercial ly important fish, lobster, and shrimp nurseries in the area. 84 Southern Palm Beach and northern Broward counties have been negatively impacted by algal mats made up of Caulerpa species since the 1990s. Caulerpa species can become overgrown or displace coral, other macroalgae, or sponges. Off Palm Beach County, dive operators and fishermen have reported large amounts of Caulerpa brachypus driving fish and lobster away from reefs. Researchers in Fl orida (e.g., Florida Sea Grant, University of Florida IFAS Extension, University of Central Florida, Tampa Bay Estuary Program) and nationally (e.g., National Sea Grant, NOAA ) are concerned about have noted the spread of C. brachypus in Florida’s coastal wa ters because a related green alga ( Caulerpa taxifolia ) spread along the Mediterranean and California coast s , which is illustrative of the potential for future further spread of C. brachypus in Florida coastal waters . California is spending millions to eradicate the C. taxifolia alga

. 85 Gambierdiscus toxicus (a ciguatoxin producer) is found from Palm Beach to the Dry Tortugas and Florida Bay and is suspected to have cause d fish kills and disease
events

. 86 Blooms of Ly ngbya majuscula were reported in Charlotte Harbor, Cedar Key, Sebastian Inlet, Sarasota Bay, Tampa Bay, Terra Ceia Bay, Palma Sola, Manatee River,

83 Anderson, D.M., ed. 1995. ECOHAB: The Ecology and Oceanography of Harmful Algal Blooms: A National Research Agenda. Woods Hole Oceanographic Institution, Woods Hole, MA. 84 Anderson, D.M., ed. 1995. ECOHAB: The Ecology and Oceanography of Harmful Algal Blooms: A National Research Agenda . Woods Hole Oceanographic Institution, Woods Hole, MA. 85 Jacoby, C., B. Lapointe, and L. Creswe ll. No date. Are native and nonindigenous seaweeds overgrowing Florida’s east coast reefs? SGEF

– 156. Florida Sea Grant College Program. <http://nsgl.gso.uri.edu/flsgp/flsgpg01015.pdf>. Accessed January 2012. Jacoby, C., and L. Walters. 2009. Can We Stop " K iller Algae " from Invading Florida? (March 2009 rev.) SGEF

- 155. Florida Sea Grant College Program. < http://edis.ifas.ufl.edu/pdffiles/sg/sg07200.pdf >. Accessed April 2012. 86 FFWCC. No date. Gambierdiscus toxicus . Florida Fish and Wildlife Conservation Com mission. <http://myfwc.com/media/202186/g_toxicus_1054.pdf>. Accessed January 2012. Comment [E21]: OMB edits accepted.Page 42 of 221 and northwest Bradenton in 1999, 2000, and 2002. Lyngbya majuscul a can form sizeable, floating mats that emit foul odors. 87 In 1991, widespread and persistent blooms of cyanobacteria in Florida Bay coincided with massive sponge die

- offs, which negatively impacted the behavior and abundance of populations of juvenile Cari bbean spiny lobsters. 88 Two Pseudo

- nitzschia species found in Florida are P. calliantha, which was observed at bloom levels in the northern Indian River Lagoon, and P. pseudodelicatissima

. 89 Pseudo

- nitzschia spp. has been observed in Tampa Bay since the 1960 s. Pseudo

- nitzschia spp. c ause amnesic shellfish poisoning in humans and mortality of marine mammals and seabirds. 90
In addition to being negatively indirectly impacted by algal toxins and decline of
seagrass , aquatic life in Florida is directly impacted by hypoxia. In June 2011, a fish kill in Marco Island , Florida was attributed to low dissolved oxygen, resulting from a “mixed” bloom of non

- toxic algae and diatoms. 91 Newspapers in Florida regularly report

87 FFWCC. No date. Blue

- Green Algal Blooms in Coastal Florida; 1999, 2000, and 2002 . Florida Fish and Wildlife Conservation Commission. < http://myfwc.com/research/redtide/a rchive/historical

- events/blue

green - algal

- blooms

- coastal

- fl/>. Accessed January 2012. 88 Butler, M.J

. , J.H. Hunt, W.F. Herrnking, M.J. Childress, R. Bertelsen, W. Sharp, T. Matthews, J.M. Field, and H.G. Marshall. 1995. Cascading disturbances in Florida Bay , USA: cyanobacteria blooms, sponge mortality, and implications for juvenile spiny lobsters Panulirus argus

. Marine Ecology Progress Series 129:119

- 125. 89 Phlips, E.J., S. Badylak, M. Christman, J. Wolny, J. Brame, J. Garland, L. Hall, J. Hart, J. Lansberg , M. Lasi, J. Lockwood, R. Paperno, D. Scheidt, A. Staples, K. Steidinger

. 2011. Scales of temporal and spatial variability in the distribution of harmful algae species in the Indian River Lagoon, Florida, USA. Harmful Algae 10:277

- 290. Phlips, E.J., S. Badylak, S. Youn, and K. Kelley. 2004. The occurrence of potentially toxic dinoflagellates and diatoms in a subtropical lagoon, the Indian River Lagoon, Florida, USA. Harmful Algae 3(1):39

- 49. 90 Badylak, S., E.J. Phlips, P. Baker, J. Fajans, and R. Boler. 2007. Distributions of phytoplankton in Tampa Bay estuary, U.S.A. 2002

- 2003. Bulletin of Marine Science 80(2):295

- 317. Lopez, C.B., Q. Dortch, E.B. Jewett, and D. Garrison. 2008. Scientific Assessment of Marine Harmful Algal Blooms . Interagency Working Gro up on Harmful Algal Blooms, Hypoxia, and Human Health of the Joint Subcommittee on Ocean Science and Technology, Washington, DC. < http://www.cop.noaa.gov/stressors/extremeevents/hab/habhrca/assess_12

- 08.pdf >. Accessed April 2012. 91 Fish kill in island canals appears over . 2011 , June 2 . Marconews.com

– Marco Eagle. <http://www.marconews.com/news/2011/jun/02/dead

- fish

- bad

- smell

- permeate

- parts

- island/?print=1>. Accessed January 2012.Page 43 of 221 on impacts associated with nitrogen and phosphorus pollution. Recent examples include In 2010, there were reports of algal blooms and fish kills in the St. Johns River

. 92 Spring releases of water from Lake Okeechobee into the St. Lucie Canal resulted in floating mats of toxic cyanobacteria, Microcystis aeruginosa, prompting Martin and St. Lucie county health departments to issue public health warnings. 93 A large Microcystis bloom was documented in the Lower St. Johns River in 2005, covering a 100 mi (160 km) stretch from Jacksonville to Crescent City. 94 To xic cyanobacteria Anabaena circinalis and Cylindrospermopsis raciborskii have been implicated in fish kills in the Lower St. Johns River basin. 95 In addition, in June 2009, a large algal bloom stretching more than 14 mi (23 km) was documented in Tampa Bay. This was linked to surface water runoff of nutrients and pollutants (e.g., fertilizers, yard waste, animal feces) that were washed into the bay from recent heavy rains. 96 Numerous algal blooms, some capable of producing toxins, foul odors, and fish kills, o ccurred in Florida coastal areas, estuaries, and canals in 2011. G reen algae, known

92 Patterson, S. 2010, July 23. St John’s River Looks Sick , Nelson says

. Th e Florida Times Union. <http://jacksonville.com/news/metro/2010

- 07

- 23/story/st

- johns

- looks

- sick

- nelson

- says>. Accessed September 2010. Patterson, S. 2010, July 21. Foam on St. John’s River Churns Up Environmental Interest

. The Florida Times Union. <http:/ /jacksonville.com/news/metro/2010

- 07

- 21/story/foam

- st

- johns

- churns

- environmental

questions>. Accessed October 2010. 93 Killer, E. 2010, June 10. Blue

- green Algae Found Floating Near Palm City as Lake Okeechobee Releases Continue. TC Palm . <http://www.tcpalm. com/news/2010/jun/10/blue

- green - algae

- found

- floating

near - palm

- city

- o/>. Accessed October 2010. 94 Aubel, M., P. D'Aiuto, A. Chapman, D. Casamatta, A. Reich, S. Ketchen, and C. Williams. 2006. Blue

Green Algae in St. Johns River, FL. Lakeline Summer 2006:40

- 45. 95 Abbott, G. M., J. H. Landsberg, A. R. Reich, K. A. Steidinger, S. Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Institute, St. Petersburg, FL . <http://myfwc.com/research/redtide/task

- force/reports

- presentations/resource

- guide

- for

public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/ >. Accessed June 2011. <http://www.lsjr.org/pdf/ResourceGuide_FL_algal_blooms_2009.pdf>. Accessed June 2011. 96 Pittman, C. 2009 , June 26

. Algae bloom one of largest in Tampa Bay history . St. Petersburg Times. <http://www.tampabay.com/news/environment/water /article1013322.ece>. Accessed July 2010. Comment [E22]: OMB edits accepted.Page 44 of 221 as June Grass, w ere found washing onto local beaches on Okaloosa Island. The algae adhere to swimmers, cover beaches and hinder fishing. 97
In the Caloosahatchee River and es tuary, high algae and salinity levels caused the Olga water treatment plant in Lee County to close in May 2011. Customers complained about unusual tastes and odors in their drinking water . The blue

- green algae bloom significantly affected areas from the W. P. Franklin Lock and Dam, upstream through Alva and LaBelle, Florida. The bloom caused fish, bird and shellfish mortalities, and triggered the Lee County Health Department to issue warnings and advisories on water and fish consumption as well as swimming. Toxic blue

- green algae species were identified in the bloom, including Anabaena , Oscillatoria and Aphanizomenon sp. 98 The Indian River Lagoon also experienced large and prolonged algae blooms

. High levels of green algae Resultor sp. were found from Titusville to Melbourne and covering the entire Banana River. The algae were thought to be responsible for killing hundreds of fish and inhibiting seagrass growth. 99 A large rust

- color ed bloom of

97 Tammen, K. 2011, April 20. It’s not even June and the June Grass is Back

. Northwest Florida Daily News. < http://www.nwfdailynews.com /news/grass

- 39438

- island

- okaloosa.html > . Accessed April 2011. 98 Lee Closes a Water Plant; Blame Algae and Saltwater intrusion in Caloosahatchee

. 2011, May 19. CBS Wink News Now. < http://www.winknews.com/Local

- Florida/2011

- 05

- 19/Lee

- Closes

- a - Water

- Plant

Blame

- Algae

- and

- Salt

- water

- intrusion

- in

- Caloosahatchee > . Accessed December 2011. Lollar, K. 2011, June 6. Bacterial bloom stains waterway up to LaBelle

. News

- Press. < http://www.marconews.com/news/2011/jun/02/dead

- fish

- bad

- smell

- permeate

- parts

- island/ > . Accessed J une 2011. Crisis in the Caloosahatchee: Algal blooms in local waters . 2011, June 8. Sanibel

- Captiva Islander. < http://sanibel

- captiva

- islander.com/page/content.detail/id/511872/Crisis

- in

- the

- Caloosahatchee

-- Algal

blooms

- in

- local

- waters.html?nav=5051 > . Accessed June 2011. Warning added for Lee County waters . 2011, June 16. CBS Wink News Now. < http://www.winknews.com/Local

- Florida/2011

- 06

- 16/Warning

- added

- for

- Lee

- County

- waters > . Accessed June 2011. Cornwell, B. 2011, June 22. Algae Bloom doesn’t deter everyone

. F ort Meyers Florida Weekly. < http://fortmyers.floridaweekly.com/news/2011

- 06

- 22/Top_News/Algae_bloom_doesnt_deter_everyone.html > . Accessed June 2011. 99 Florida Today. 2011, July 18. Green algae killing fish, seagrass in northern Indian River Lagoon

. 10 News WTSP

– Tampa Bay

. < http://www.wtsp.com/rss/article/201465/19/Green

- algae

- killing

- fish

seagrass - in

- northern

- Indian

- River

- Lagoon > . Accessed December 2011.Page 45 of 221 Pyrodinium bahamense formed in Old Tampa Bay in August 2011 ; t he bloom stretched from Safety Harbor to the Howard Frankland Bridge and was thought to be caused by a combination of heat, rain, and fertilizer runoff. 100

c. Adverse Impacts of Nitrogen and Phosphorus Pollution on Human Health As noted previously in section II.A.1.b, nitrogen and phosphorus pollution have been explicitly linked to changes in natural algal species composition including increased growth or dominance of toxic or otherwise harmful algal species. 101 Toxins produced by HABs hav e been linked, through recreational exposure, to adverse human health impacts through ingesti on of contaminated seafood, dermal reactions , and respiratory problems. 102 Ingestion of seafood that is contaminated with toxins can cause

100 Reyes, R. 2011, August 31. Algae bloom continues to grow in Old Tampa Bay . Tampa Bay Online. < http://www2.tbo.com/news/breaking

- news/2011/aug/31/1/algae

- bloom

- continues

- to

- grow - in

- old

- tampa

bay

- ar - 254281/ > . Accessed December 2011. Harwell, D. 2011, Au gust 27. Tampa Bay algae bloom threatens the estuary’s fish . St. Petersburg Times. < http://www.tampabay.com/news/environment/water/tampa

- bay

- algae

- bloom

- threatens

- the

- estuarys

fish/1188284 > . Accessed August 2011. 101 Paerl, H.W. 1988. Nuisance phytoplankton blooms in coastal, estuarine, and inland waters. Limnology and Oceanography 33(4):823

- 847. Anderson, D.M., P.M. Glibert, and J.M. Burkhol der. 2002. Harmful algal blooms and eutrophication: Nutrient sources, composition, and consequences. Estuaries 25(4):704

- 726. Anderson, D.M., J.M. Burkholder, W.P. Cochlan, P.M. Glibert, C.J. Gobler, C.A. Heil, R.M. Kudela, M.L. Parsons, J.E.J. Rensel, D.W . Townsend, V.L. Trainer, and G.A. Vargo. 2008. Harmful algal blooms and eutrophication: Examining linkages from selected coastal regions of the United States. Harmful Algae 8(1):39

- 53. 102 WHOI. 2006. Harmful Algae and Red Tides Primer . Woods Hole Oceanographic Institution, Woods Hole, MA. Anderson, D.M. 2004. The Growing Problem of Harmful Algae: Tiny plants pose a potent threat to those who live in and eat from the sea. Woods Hole Oceanographic Institution. Oceanus Magazine 43(1):1

- 5. Graham, J. 2007. Harmful Algal Blooms . Fact Sheet 2006

- 3147. U.S. Geological Survey, Lawrence, KS CDC. 2004. About Harmful Algal Blooms . Centers for Disease Control and Prevention, Atlanta, GA Bronstein, A.C., D.A. Spyker, L.R. Cantilena, Jr., J.L. Green, B.H. Rumack , S.L. Giffin. 2009. 2008 Annual Report of the American Association of Poison Control Centers’ National Poison Data System (NPDS): 26th Annual Report. Clinical Toxicology 48 : 979

– 1178

. Landsberg, J

. , F

. Van Dolah, and G

. Doucette. 200 5 . Marine and estuarine h armful a lgal b looms: Impacts on h uman and a nimal h ealth. Chapter 8 In: Oceans and Health: Pathogens in the Marine Environment

. eds. S. Belkin and R.R. Colwell, pp.165

- 215. Springer, New York. NOAA. 2009. Marine Biotoxins

. National Oceanic and Atmospheric Administration , Northwest FisheriesPage 46 of 221 gastrointestinal, neurological, cardiovascular, and hepatological illnesses. In some severe cases, ingestion of even a small amount of contaminated seafood can result in coma or death. 103 Each year in the United States , incidents of poisoning from marine toxins are reported to the CDC. 104 Nitrogen and phosphorus pollution has been linked to human health impacts in Florida, primarily through illnesses associated with HABs. Although marine HABs occur naturally, increased nutrient loadings and pollution have been linked to in creased occurrence of some types of HABs. 105 Significant HAB

- caused toxins that have been found in Florida’s marine waters include saxitoxins, brevetoxins, ciguatoxins, cyanotoxins, domoic acid, and okadaic acid. 106
C iguatoxins lead to Ciguatera fish poisoning (CFP), one of the most commonly reported food borne illness es caused by a marine biotoxin in the United States, 107 with
1 76 cases reported to U.S. poison centers in 2009 (22 percent of the total reported cases of food poisoning from seafood toxins)

. 108 Ciguatoxins are bioaccumulative , causing

Science Center

. < http://www.nwfsc.noaa.gov/hab/habs_toxins/marine_biotoxins/index.html >. Accessed December 2011. Anderson, D., P. Glibert, and J. Burkholder. 2002. Harmful Algal Blooms and Eutrophication: Nutrient Source s, Composition, and Consequences. Estuaries 25(4b):704

- 726. 103 Bushaw

- Newton, K.L. , and K.G. Sellner

. 1999. Harmful Algal Blooms. In: NOAA's State of the Coast Report

. National Oceanic and Atmospheric Administration, Silver Spring, MD

. < http://oceanservice.noaa.gov/websites/retiredsites/sotc_pdf/hab.pdf >. Accessed June 2011. 104 CDC. 2005. Marine Toxins: Frequently Asked Questions . Centers for Disease Control and Prevention, Atlanta, GA. < http://www.cdc.gov/ncidod/dbmd/diseaseinfo/marinetoxins_g.htm >. Accessed June 2011. 105 Lopez, C.B., Q. Dortch, E.B. Jewett, and D. Garrison. 2008. Scientific Assessment of Marine Harmful Algal Blooms . Interagency Working Group on Harmful Algal Blooms, Hypoxia, and Human Health of the Joint Subcommittee on Ocean Science and Technology , Washington, DC. 106 Abbott, G.M., J.H. Landsberg, A.R. Reich, K.A. S teidinger, S. Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida

. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Institute, St. Petersbur g, FL . <http://myfwc.com/research/redtide/task

- force/reports

- presentations/resource

- guide

- for

public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/>. Accessed June 2011. 107 Dickey, R.W. , and S.M. Plakas. 2010. Ciguatera: A public health perspective. T oxicon 56:123

- 136. 108 Bronstein, A.C., D.A. Spyker, L.R. Cantilena, Jr., J.L. Green, B.H. Rumack, and S.L. Giffin. 2009. 2008 Annual Report of the American Association of Poison Control Centers’ National Poison Data System Comment [E23]: OMB edit accepted.Page 47 of 221 gastrointestinal, neurological, or cardiovascular symptoms that vary in intensity. 109 In Florida, CFP poses a significant risk to public health. 110 One estimate indicates that approximately 1,300 cases of CFP (reported and unreported cases) occur annually in Florida. 111 The Florida Department of Health ( FDOH ) reported 8 cases of CFP in 2005, 44 cases in 2006, 34 cases in 2007, and 51 cases in 2008. 112 Saxitoxins lead to p aralytic shellfish poisoning (PSP ), which occurs when humans eat shellfish contaminated with saxitoxins . These toxins affect the nervous system and in

severe cases caus e respiratory paralysis. 113 Between January 2002 and May 2004, 28 cases of saxitoxin poisoning associated with puffer fish caught in Florida’s I ndian River Lagoon (IRL) were reported. In 2002, the Florida Fish and Wildlife Conservation Commission banned the commercial and recreational harvest of puffer fish in several water bodies in Florida and made that ban permanent in 2004. 114 Domoic acid , also

(NPDS): 26th Annual Report. Clinic al Toxicology 48 : 979

– 1178

. 109 McKee D. B., L.E. Fleming, R. Tamer, R. Weisman, and D. Blythe. 2001. Physician diagnosis and reporting of ciguatera fish poisoning in an endemic area. In : Harmful Algal Blooms 2000 : Proceedings of the N inth International Conference on Harmful Algal Blooms, Hobart, Australia, 7

- 11 February 2000, , eds. G.M. Hallegraeff, S.I. Blackburn, C.J. Bolch, and R.J. Lewis , pp. 451

- 453. Intergovernmental Oceanographic Commission of UNESCO , Paris , France

. 110 Abbott,G. M., J. H. Landsberg, A.R. Reich, K.A. Steidinger, S. Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Insti tute, St. Petersburg, FL . <http://myfwc.com/research/redtide/task

- force/reports

- presentations/resource

- guide

- for

public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/>. Accessed June 2011. 111 Abbott,G. M., J. H. Landsberg, A.R. Reich, K.A. Steidinger, S. Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Institute, St. Petersburg, FL . <ht tp://myfwc.com/research/redtide/task

- force/reports

- presentations/resource

- guide

- for

public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/>. Accessed June 2011. 112 Abbott,G. M., J.H. Landsberg, A.R. Reich, K.A. Steidinger, S. Ketchen, and C. Blackmore. 2009. Resource Guide for Public Health Response to Harmful Algal Blooms in Florida

. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Institute, St. Petersburg, FL . <http://myfwc.com/research/redtid e/task

- force/reports

- presentations/resource

- guide

- for

public

- health

- response - to

- harmful

- algal

- blooms

- in

- florida/>. Accessed June 2011. 113 Landsberg, J

. , F

. Van Dolah, and G

. Doucette. 200 5 . Marine and estuarine h armful a lgal b looms: Impacts on h uman and a nimal h ealth. Chapter 8 In: Oceans and Health: Pathogens in the Marine Environment . ed s. S. Belkin and R.R. Colwell, pp. 165

- 215. Springer, New York. 114 Abbott, G.M., J.H. Landsberg, A.R. Reich, K.A. Steidinger, S. Ketchen, and C. Blackmore. 2009.Page 48 of 221 produced by HABs, can also cause food poisoning , produc ing symptoms ranging from mild gastrointestinal discomfort to permanent brain damage and , in rare cases, death. 115 Recreational exposure to toxins from HABs can occur when humans inhale sea
spray vapor containing fragments of marine algae cells and their associated toxins during
water

- related activities such as jet

- skiing or boating , causing hay fever

- like respiratory problems

. 116 In addition, e levated levels of nitrate , a byproduct of nitrogen pollution in surface
waters , can cause public health concern s if the water is a drinking water source, where 117

n itrate is converted to harmful nitrite after ingestion. 118 The primary human health concern with nitrates and nitrites in drinking water is methem oglobinemia, although adverse thyroid effects have been associated with elevated nitrates as well

. 119
M ethemoglobinemia, or “blue baby syndrome ,” a s the name implies, most often affects infants less than six months old ( although adults can also be affected ) when the ingested

Resource Guide for Public Health Response to Harmful Algal Blooms in Florida

. FWRI Technical Report TR

- 14. Florida Fish and Wildlife Conservation Commission , Fish and Wildlife Research Institute, St. Petersburg, FL . <http://myfwc.com/research/redtide/task

- force/re ports

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public

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- response - to

- harmful

- algal

- blooms

- in

- florida/>. Accessed June 2011. Landsberg, J.H., S. Hall, J.N. Johannessen, K.D. White, S.M. Conrad, J.P. Abbott, L.J. Flewelling, R.W. Richardson, R.W. Dickey, E.L.E. Jester, S. M. Etheridge, J.R. Deeds, F.M. Van Dolah, T.A. Leighfield, Y. Zou, C.G. Beaudry, R.A. Benner, P.L. Rogers, P.S. Scott, K. Kawabata, J.L. Wolny, and K.A. Steidinger. 2006. Saxitoxin Puffer Fish Poisoning in the United States, with the First Repor t of Pyrodinium bahamense as the Putative Toxin Source. Environmental Health Perspectives 114(10):1502

- 1507. 115 NOAA. 2009. Marine Biotoxins

. National Oceanic and Atmospheric Administration , Northwest Fisheries Science Center

. < http://www.nwfsc.noaa.gov/hab /habs_toxins/marine_biotoxins/index.html >. Accessed December 2011. 116 CDC. 2010. Facts about Cyanobacteria and C yanobacterial H armful A lgal B looms

. Centers for Disease Control and Prevention . < http://www.cdc.gov/hab/cyanobacteria/facts.htm >. Accessed August 2010. 117 FDEP. 1998. Ground

- water Quality and Agricultural Land Use in the Polk County Very Intense Study Area (VISA)

. AMR 1998

- 2. Florida Department of Environmental Protection, Division o f Water Facilities. < http://www.dep.state.fl.us/water/ monitoring/docs/facts/fs9802.pdf > . Accessed September 2010. 118 Gulis. G., M. Czompolyova, and J.R. Cerhan. 2002. An Ecologic Study of Nitrate in Municipal Drinking Water and Cancer Incidence in Trnava District, Slovakia. Environmental Research 88: 182

– 187. 119

. Fan, A.M., and V.E. Steinberg. 1996. Health implications of nitrate and nitrite in drinking water: an update on methemoglobinemia occurrence and reproductive and development toxicity. Regulatory Tox icology and Pharmacology 23(1 Pt 1):35

– 43. Comment [E24]: OMB edit accepted.Page 49 of 221 nitrate is converted to nitrite in the body that prevents hemoglobin in the blood from delivering oxygen effectively throughout the body. Methemoglobinemia is an acute disease and symptoms can develop rapidly in infants , usually over a pe riod of days. Symptoms include shortness of breath and blueness of the skin , and even death in severe

cases . 120 EPA developed a Maximum Contaminant Level (MCL) of 10 mg/L for nitrate in drinking water and an MCL of 1 mg/L for nitrite. 121 In the 2010 USGS National Water

Quality Assessment Program report, nitrate concentrations in streams across the U.S. exceeded 10 mg/L in 28 percent of streams in agricultural areas and 83 percent of studies of shallow ground water

. However, t he report also found that nitrate concentrations exceeding the MCL of 10 mg/L were more prevalent in groundwater drinking water

sources than in streams. 122 Nitrates are found in groundwater and wells in Florida, ranging from the detection limit of 0.02 mg/L to over 20 mg/L. E levated nitrate concentrations in groundwater are more common in rural agricultural areas which are often served by private wells. When n itrate occurs at concentrations greater than 1 mg/L , it is considered to be the result of human activities such as application of agricultural

120 Manassaram, D.M., L.C. Backer, and D.M. Moll. 2006. A Review of Nitrates in Drinking Water: Maternal Exposure and Adverse Reproductive and Developmental Outcomes. Environmental Health Perspec tives 114(3):320

– 327

. FDEP. 2011. Drinking Water: Inorganic Contaminants . Florida Department of Environmental Protection. < http://www.dep.state.fl.us/water/drinkingwater/inorg

_ con.htm >. Accessed November 2011. 121 USEPA. 2007. Nitrates and Nitrites: TEACH Chemical Summary

. U.S. Environmental Protection Agency. < http://www.epa.gov/teach/chem_summ/Nitrates_summary.pdf >. Accessed May 2012

. 122 Dubrovsky, N.M., K.R. Burow, K.R., G.M. Clark, G.M., J.M. Gronberg, J.M., P .A. Hamilton P.A., K.J. Hitt, K.J., D.K. Mueller, D.K., M.D. Munn, M.D., B.T. Nolan, B.T., L.J. Puckett, L.J., M.G. Rupert, M.G., T.M. Short, T.M., N.E. Spahr, N.E., L.A. Sprague, L.A., and W.G. Wilber, W.G. 2010. The Q quality of our Nation’s w W aters

— Nutrients in the Nation’s s S treams and g G roundwater, 1992

– 2004 : . Circular 1350. U.S. Geological Survey , National Water Quality Assessment Program, Reston , VA. < Circular 1350, 174p. http://water.usgs.gov/nawqa/nutrients/pubs/circ1350 >

. Accessed May 2012. November 2011 May 2012

. Comment [E25]: OMB edit accepted.Page 50 of 221 fertilizers, disposal of animal wastes, and use of septic tanks. 123 Monitoring of Florida Publ ic Water Supplies from 2004

- 2011 indicates that exceedances of the nitrate MCL reported by drinking water plants in Florida ranged from 19

- 34 annually. 124 A study in the late 1980s conducted by Florida Department of Agriculture and Consumer Services (FDACS) and FDEP, analyzed 3,949 shallow drinking water wells for n itrate. 125 Nitrate was detected in 2,483 wells (63%), with 584 wells (15%) above the MCL of 10 mg/L.

d. Adverse Impacts of Nitrogen and Phosphorus Pollution on the Economy Excessive algal blooms result in a range of economic losses, including lost

revenue from impacts to commercial fisheries, recreational fishing and boating trips, and tourism , as well as increased drinking water costs and reduced waterfront property values. 126 More information concerning the costs and benefits of the numeric n utrient criteri a proposed in this rule can be found in Section VI.

123 DeSimone, L. A., P.A. Hamilton, and R.J. Gilliom . 2009. Quality of Water from Domestic Wells in Principal Aquifers of the United States, 1991

- 2004: Overview of Major Findings

. Circular 1332. U .S. Geological Survey, National Water Quality Assessment Program , Reston, VA. < http://water.usgs.gov/nawqa/studies/domestic_wells/WaterWellJournalArticle_DeSimoneetal2009.pdf >. Accessed November 2011. Spechler, R.M. 2010. Hydrogeology and Groundwater Quality of Highlands County, Florida . Scientifi c Investigations Report 2010

– 5097. U.S. Geological Survey, Reston, VA Dubrovsky, N.M., K.R. Burow, G.M. Clark, J.M. Gronberg, P.A. Hamilton, K.J. Hitt, D.K. Mueller, M.D. Munn, B.T. Nolan, L.J. Puckett, M.G. Rupert, T.M. Short, N.E. Spahr , L.A. Sprague, and W.G. Wilber. 2010. The Quality of our Nation’s Waters

—

Nutrients in the Nation’s Streams and Groundwater, 1992

– 2004. Circular 1350. U.S. Geological Survey, National Water Quality Assessment Program, Reston, VA. < http://water.usgs.gov/nawqa/nutrients/pubs/circ1350 >. Accessed May 2012. 124 FDEP. 2012. Chemical Data for 2004, 2005, 2006, 2007, 2008, 2009, 2010, and 2011 . Florida Department of Environmental Protection. < http://www.dep.state.fl.us/water/drinkingwater/chemdata.htm >. Accessed May 2012. 125 Southern Regional Water Program. 2010. Drinking Water and Human Health in Florida

. < http://srwqis.tamu.edu/florida/program

- information/florida

- target

- themes/drinking

- water

- and

- human

health.aspx >. Accessed May 2012. Ob reza, T.A., and K.T. Morgan. 2008. Nutrition of Florida Citrus Trees . 2nd ed. SL 253. University of Florida, IFAS Extension. < http://edis.ifas.ufl.edu/pdffiles/SS/SS47800.pdf >. Accessed May 201 2. 126 Dodds, W

. K., W

. W. Bouska, J

. L. Eitzmann, T

. J. Pilger, K

. L. Pitts, A

. J. Riley, J

. T. Schloesser, and D

. J. Thornbrugh. 200 9

. Eutrophication of U.S. Freshwaters: Analysis of Potential Economic Damage s . Comment [E26]: OMB edit accepted.Page 51 of 221 In 2006, U.S. sportfishers spent $42.0 billion on fishing, including $26.3 billion for freshwater fishing and $8.9 billion for saltwater fishing. These costs include trip

related costs (food, lodging), fishing equipment costs, and other costs such as licenses, land

- leasing, and ownership. 127 Commercial harvests of fish and shellfish totaled $3.9 billion nationally in 2009. 128
The economic value of Florida’s marine recreational fisheries is higher than any other state in the country. R ecreational fishing contributed over $5 billion to Florida’s
economy in 2006

. In the 2008

- 2009 fiscal year, over 1 million individuals bought a marine recreational fishing license, generating over $29 million in revenue. 129 S imilarly, Florida has one of the nation’s top producing commercial fisheries

. In 20 09 , Florida’s harvest of the top five commercial species of fish and shellfish was worth more than $ 55 million combined

. In total, commercial fishing contributed more than $ 1 billion to the economy of Florida. Outdoor recreation in Florida (includ ing wildlife

- viewing , fishing, and water sports) generates $10.1 billion annually. 130 In 2006, over 3 million Florida residents and 746,000 visitors participated in wildlife

- viewing activities, for total retail sales of an estimated $3.1 billion. 131

Environmental Science and Technology 43 ( 1 ):12

- 19

.

129 FFW C C

. No Date

. The Economic Impact of Saltwater Fishing in Florida . Florida Fish and Wildlife Conservation Commission. <http://myfwc.com/conser vation/value/saltwater

- fishing> . Accessed December 2011. 130 F F WC C . No Date. Economic Impact of Outdoor Recreatio n . Florida Fish and Wildlife Conservation Commission. <http://myfwc.com/conservation/value/o utdoor

- recreation>. Accessed July 2011. 131 USFWS. 200 8

. 2006 National Survey of Fishing, Hunting, and Wildlife

- Associated Recreation: Florida

. FHW/06

- FL. U.S. Fish and Wildlife Service. <http://www.census.gov/prod/2008pubs/fhw06

- fl.pdf>. Accessed July 2011. Comment [E27]: OMB edit accepted.Page 52 of 221 At the county level, Monroe County’s commercial tourism and fishing industries rely on f infis h and shellfish from Florida Bay . Measurable economic losses associated with the changing environ mental conditions of the Bay have occurred, primarily from the substantial decline in pink shrimp harvests due to loss of submerged aquatic vegetation (habitat) , which was linked to nitrogen and phosphorus pollution as a contributing factor

. From 1986 thro ugh the early 1990s, employment in commercial fishing declined by about 10 percent, while income of individuals in the industry declined by $16 million. These losses coincided with massive seagrass die

- offs in the Bay and blue

- green algae blooms

. 132
HAB toxi ns can make seafo od unsafe for human consumption, leading to an overall reduction in the amount of fish purchased due to the real or perceived threats of contamination

. 133 Additional costs for medical care to treat individuals exposed to toxins are also an e conomic burden associated with HABs. Potential e conomic impacts from nitrogen and phosphorus pollution in Florida include monetary losses due to depressed fisheries, tourism and property values, and elevated costs to address nutrient impacts (e.g., beach cleanup costs, HAB monitoring).
S eagrass habitat s are valuable components of Florida's estuarine and coastal
waters

. FDEP has estimated that each acre of seagrass is worth $20,255 per year, which would translate to a benefit of $44.6 billion statewide

. 134 The nearly 2.2 million acres of

132 Gorte, R

. W. 1994. The Florida Bay economy and changing environmental conditions . 94

- 435 ENR, CRS Report for Congress, Congressional Research Service, The Library of Congress. 133 Anderson, D.M.. 2008. Hearing on “ Harmful Algal Blooms: The Challenges on the Nation’s Coastlines ”

. Woods Hole Oceanographic Institution. < http://www.whoi.edu/page.do?pid=8916&tid=282&cid=46007 >. Accessed December 2011

. 134 USGS

. 200 1. Seagrass Habitat In the Northern Gulf of Mexico: Degradation, Conservation, and Restoration of a Valuable Resource . U

. S

. G eological S urvey, Gulf of Mexico Habitat Program Team, 855

- R

- 04

- 001. < http://gulfsci.usgs.gov/gom_ims/pdf/pubs_gom.pdf >. Accessed J uly 2011. Comment [E28]: OMB edits accepted.Page 53 of 221 seagrass beds in F lorida’s nearshore waters support fish and shellfish that are economically vital to commercial and recreational businesses in Florida. 135 Some estuary experts have attempted to quantify the overall value of individual estuaries in Florida. For example, the I ndian River Lagoon National Estuary Program estimated the total value of the Indian River Lagoon at $ 3 .7 billion (2009 dollars) . In the study, recreational and non

use values of the lagoon were estimated to increase by nearly $80 million per year (2009 dol lars) if there were a significant increase in the amount and diversity of wildlife in the lagoon, as well as increased water quality throughout the system from restoration and water quality improvement projects. 136

Burkholder, J.M., D.A. Tomasko, and B.W. Touchette. 2007. Seagrasses and eutrophication. Journal of Experimental Marine Biology and Ecology 350:46

- 72. Waycott, M. , C.M. Duarte, T.J.B. Carruthers, R.J. Orth, W.C. Dennison, S. Olyarnik, A. Calladine, J.W. Fourqurean, K.L. Heck, Jr., A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, F.T. Short, and S.L. Williams. 2009. Accelerating loss of seagrasses across the globe threatens coastal ecosystems. Proceedings of the National Academy of Sciences of t he United States of America 106(30):12377

- 12381. Short, F.T., B. Polidoro, S.R. Livingstone, K.E. Carpenter, S. Bandeira, J.S. Bujang, H.P. Calumpong, T.J.B. Carruthers, R.G. Coles, W.C. Dennison, P.L.A. Erftemeijer, M.D. Fortes, A.S. Freeman, T.G. Jagtap, A.H.M. Kamal, G.A. Kendrick, W.J. Kenworthy, Y.A. La Nafie, I.M. Nasution, R.J. Orth, A. Prathep, J.C. Sanciangco, B. van Tussenbroek, S.G. Vergara, M. Waycott, and J.C. Zieman. 2011. Extinction risk assessment of the world’s seagrass species. Biological Conservation 144:1963

- 1971

. Watson R.A., R.G. Coles, and W.J. Lee Long. 1993. Simulation estimates of annual yield and landed value for commercial penaeid prawns from a tropical seagrass habitat, Northern Queensland, Australia. Australian Journal of Marine and Freshwater Research 44:211

– 219. Carlson, P. , and L. Yarbro. 2008. Seagrass Mapping and Monitoring: Big Bend and Beyond. Presented at Florida Water Resources Monitoring Council Meeting, St. Petersburg, FL, September 24

- 25, 2008. Costanza, R., R. d’Arge, R. de Groot, S. Farber, M. Grasso, B. Hannon, K. Limburg, S. Naeem, R.V. Neill, J. Paruelo, R.G. Raskin, P. Sutton, and M. van den Belt. 1997. The value of the world’s ecosystem services and natural capital. Nature 387:253

– 260. 135 FDEP. 2011. Celebrate Sea grass Awareness Month . Florida Department of Environmental Protection. <http://www.dep.state.fl.us/coastal/news/art icles/2011/1103_Seagrass.htm>. Accessed June 2011. Scott, R . 2011. Seagrass Awareness Month

. Proclamation by Governor Rick Scott of the State of Florida. Florida Department of Environmental Protection. <http://www.dep.state.fl.us/coastal/habitats/seagrass/ awareness/Proclamation_2011.pdf>. Accessed June 2011. 136 USEPA. 2009. Determining an Estuary’s Economic Value . EPA

- 842F09001. U.S. Environment al Protection Agency, National Estuary Program, Washington, DC. < http://water.epa.gov/type/oceb/nep/upload/2009_05_28_estuaries_inaction_Efficient_IndianRiver.pdf >. Accessed July 2011.Page 54 of 221 According to a study on the impacts of HAB s on beachfront tourism

- dependent businesses in the Ft. Walton Beach and Destin areas of Florida, HABs reduced restaurant and lodging revenues by $2.8 million and $3.7 million per month, respectively, representing a 29 percent to 35 percent decline in aver age monthly revenues. 137 A study by Mather Economics estimated the effects of water quality on real estate value in the South Florida Water Management District. T he aggregate owner

- occupied residential real estate value in the 16

- county South Florida Water Management District is approximately $976 billion. If water quality ( measured by dissolved oxygen levels) can be returned to 1970 levels as a result of restoring the Everglades ( a potential 23.4 percent improvement in water quality) , the study found that r eal estate values would increase by $16 billion. 138 In addition to negatively impacting Florida businesses, nitrogen and phosphorus pollution increases costs for beach cleanup, HAB monitoring, and wastewater treatment. For example, approximately $63,000 was spent annually from 1995

- 1997 to dispose of red seaweed and fish killed by HAB events that littered 17.5 miles of beach in Sarasota County. 139
In addition, there are increased costs due to the need to treat polluted sources of drinking water. As an example o f increased costs for drinking water treatment, in 1991, Des Moines (Iowa) Water Works constructed a $4 million ion exchange facility to

137 Larkin, S.L. , and C.M. Adams. 2007. Harmful a lgal b looms and c oastal b usiness: e conomic c onsequences in Florida. Society & Natural Resources 20 (9) :849

- 859. 138 McCormick, B., R. Clement, D. Fischer, M. Lindsay, R. Watson

. 2010

. Measuring the Economic Benefits of America’s Everglades Restoration: An Economic Evaluation of Ecosystem Services Affiliated with the World’s Largest Ecosystem Restoration Project

. Prepared for the Everglades Foundation , Palmetto Bay, FL, by Mather Economics, Roswell, GA. 139 Hoagland, P., D.M. Anderson, Y. Kaoru, and A.W. White. 2002. The economic ef fects of harmful algal blooms in the United States: estimates, assessment issues, and information needs. Estuaries 25:819

- 837.Page 55 of 221 remove nitrate from its drinking water supply. This facility was designed to be used an average of 35

– 40 days per year to remove excess nitrate levels at a cost of nearly $3 , 000 per day. 140 In another example, Fremont, Ohio (a city of approximately 20,000) has experienced high levels of nitrate from its drinking water source, the Sandusky River, resulting in numerous drin king water use advisories. An estimated $15 million is needed to build a reservoir (and associated piping) that will allow for selective withdrawal from the river to avoid elevated levels of nitrate and provide storage. 141 By regulating allowable levels of c hlorophyll a in Oklahoma drinking water reservoirs, the Oklahoma Water Resources Board estimated that the long

- term cost savings in averted drinking water treatment for 86 systems would range between $106 million and $615 million if such regulations were i mplemented. 142 These statistics are illustrative of what treatment to address nitrates and nitrites can cost. Any impacts in Florida would be site

- specific and might or might not be comparable to these numbers.

B. Statutory and Regulatory Background Sectio n 303 (c) of the CWA (33 U.S.C. 1313 (c) ) directs s tates to adopt WQS for their navigable waters

. CWA Section 303(c)(2)(A) and EPA's implementing regulations at 40 CFR 131 require, among other things, that state WQS include the designated use and criteria that protect those uses. EPA regulations at 40 CFR 131.11(a)(1) provide that states shall “adopt those water quality criteria that protect the designated use” and that

140 Jones, C.S., D. Hill, and G. Brand. 2007. Use a multifaceted approach to manage high sourcewater nitrate. Opflow June : 20

– 22. 141 Taft, Jim, Association of State Drinking Water Administrators (ASDWA). 2009. Personal Communication. 142 Moershel, Philip, Oklahoma Water Resources Board (OWRB) and Mark Derischweiler, Oklahoma Department of Environmental Quality (ODEQ). 2009. Personal Com munication. Comment [E29]: OMB edit accepted.Page 56 of 221 such criteria “must be based on sound scientifi c rationale and must contain sufficient parameters or constituents to protect the designated use.” In addition, 40 CFR 131.10(b) provides that "[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into con sideration the water quality standards of downstream waters and ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.” States are also required to review their water quality standards at least once every three years and, if appropriate, revise or adopt new standards (CWA section 303(c)(1)). Any new or revised water quality standards must be submitted to EPA for review and approval or disapproval (CWA section 303(c)(2)(A) and (c)(3) ). In addition , CWA section 303(c)(4)(B) authorizes the Administrator to determine, even in the absence of a state submission, that a new or revised standard is needed to meet CWA requirements. The EPA approved the State of Florida’s rules (which inc lude criteria for certain estuaries and coastal marine waters ) on N ovember 30 , 2012. The criteria proposed in this rulemaking protect the uses designated by the State of Florida and implement Florida’s narrative nutrient provision at Subsection 62

- 302. 530(47)(b), F.A.C. for the purposes of the CWA . These criteria include numeric values that apply to Florida’s estuaries and coastal waters not covered by the newly

- approved State WQS , south Fl orida inland flowing waters, a nd DPVs to ensure the attainment a nd maintenance of the water quality standards of downstream estuaries. 143 As explained more fully in Section I.A, EPA does not intend to finalize these DPVs if the district court modifies the Consent Decree

143 The criteria proposed in this rulemaking do not address or implement Florida’s narrative nutrient provision at Subsection 62

- 302.530(47)(a), F.A.C. Subsection 62

- 302.530(47)(a), F.A.C. remains in place as an applicable water quality standard for CWA purposes. Comment [E30]: OMB edit accepted.Page 57 of 221 consistent with EPA’s amended determination that nu meric DPVs are not necessary to meet CWA requirements in Florida.

C. Water Quality Criteria Water quality criteria include three components . The first component is “magnitude,” the concentration of a pollutant that can be maintained over time in the ambient receiving water without adversely affecting the designated use that the criteria is intended to support. The second component is “duratio n,” or the time period over which exposure is averaged (i.e., the averaging period) to limit the time of exposure to elevated concentrations. This accounts for the variability in the quality of the ambient water due to variations of constituent inputs, flo w, and other factors. The third component is “frequency,” or how often the magnitude/duration condition may be exceeded and still protect the designated use. Combining the criterion

- magnitude with the duration and frequency prevents harmful effects from in frequent exceedances of the criterion

magnitude by ensuring compensating periods of time during which the concentration is below the criterion

- magnitude. When criteri on - magnitudes are exceeded for short periods of time or infrequently , aquatic life can typ ically recover ; that is, the designated uses of the water body are typically protected. Designated uses are typic ally not protected when criterion

- magnitudes are exceeded for long er periods of time (i.e., for longer than the specified duration) or more fre quently (i.e., more often than the allowed frequency)

. 144

144 USEPA. 1994. Water Quality Standards Handbook: Second Edition, Chapter 3

– Water Quality Criteria . EPA

- 823

- B

- 94

- 005a. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA 1991. Technical Support Document for Wate r Quality

- based Toxics Control. Appendix D

– Duration and Frequency . EPA/505/2

- 90

- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC.Page 58 of 221 Use of this magnitude

- duration

- frequency format allows for some exceedances of the criterion

- magnitude concentrations while still protecting applicable designated uses, which is important for pollutan ts such as nitrogen and phosphorus because their concentrations can vary naturally in the environment. Under CWA section 304(a), EPA periodically publishes criteria recommendations for use by states in setting water quality criteria for particular paramet ers to protect recreational and aquatic life uses of waters. Whe re EPA has published recommended criteria, s tates have the option of adopting water quality criteria based on EPA ’ s CWA section 304(a) criteria guidance, section 304(a) criteria guidance modified to reflect site

- specific conditions, or other scientifically defensible methods (40 CFR 131.11(b)(1)). For nitrogen and phosphorus pollution, EPA has published under CWA section 304(a) a series of peer

- reviewed, national technical approaches and methods for the development of numeric nutrient criteria for lakes and reservoirs, 145 rivers and streams, 146
and estuari ne and coastal marine waters. 147 EPA based the methodologies used to develop numeric nutrient criteria for Florida in this proposed regulatio n on these published guidance documents, which identify three scientifically defensible approaches for deriving nutrient criteria : (1) the reference condition approach derives criteria from observations collected in reference water bodies or during referen ce time periods ; (2) the mechanistic modeling approach represents contaminant loadings, hydrodynamics, and

145 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA

- 822

- B

- 00

- 0 01. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 146 USEPA. 2000b. Nutrient Criteria Technical Guidance Manual: Rivers and Streams. EPA

- 822

- B

- 00

- 002. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 147 USEPA. 20 01. Nutrient Criteria Technical Manual: Estuarine and Coastal Marine Waters . EPA

- 822

- B

01

- 003. U.S. Environmental Protection Agency, Office of Water, Washington, DC.Page 59 of 221 impacts in aquatic systems using equations that represent physical and ecological
processes , calibrated using site

- specific data ; and (3) the stresso r - response approach estimates the relationship betwee n nutrient concentrations and response measure s related
to a designated use of the water body

. T hese three analytical approaches have been independently peer

- reviewed and are appropriate for deriving scientifically defensible numeric nutrient criteria , taking into consideration the method

- specific data needs and available data. In addition to these approaches, consideration of established (e.g., published and peer

- reviewed ) nu trient response thresholds is also an acceptable approach for deriving criteria. 148
The criteria proposed in this rulemaking implement Florida’s narrative nutrient provision at Subsection 62

- 302

. 530(47)(b), F.A.C., for the purposes of the CWA as numeric valu es that apply to , and protect, Class I, II, and III estuaries and coastal waters in Florida and south Florida inland flowing waters. In Florida, water quality criteria established for Class I, II, and III surface waters must protect “fish consumption,

recr eation and the propagation and maintenance of a healthy, well

- balanced population of fish and wildlife.” 149 Florida’s existing narrative nutrient provision serves to protect Class I, II, and III waters from nitrogen and phosphorus pollution by requiring that “[i]n no case shall nutrient concentration of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” After an extensive review of the latest scientific knowledge relating to the impacts of nutrient pollu tion on aquatic systems, EPA is proposing the use of three biological

148 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reserv oi rs. EPA

- 822

- B

- 00

- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. 149 Pursuant to Subsection 62

- 302.400(4), F.A.C.Page 60 of 221 endpoints

– maintenance of seagrasses, maintenance of balanced algal populations , and maintenance of aquatic life (fauna)

– as the most sensitive to effectively derive numeric nutrient criteria that will protect Class I, II, and III designated uses from the harmful, adverse effects of nutrient pollution . The endpoint measures that EPA is proposing to use to determine the nutrient concentrations to protect these bi ological endpoints are light levels to maintain historic depth of seagrass colonization, chlorophyll a concentrations associated with balanced phytoplankton biomass, and sufficient DO to maintain aquatic life. F ish consumption relies o n the presence of fis h and aquatic life as well as the habitat that supports them, which in turn relies on seagrasses and limited occurrence of nuisance algal blooms

. T he protection of recreation (both fishing and swimming related uses) relies on the presence of fish and aquat ic life as well as limited occurrence of nuisance algal blooms . Lastly, the protection of propagation and maintenance of a healthy, well

balanced population of fish and wildlife relies on the presence of fish and aquatic life as well as the habitat that su pports them. EPA's January 14, 2009 determination addressed Florida’s narrative nutrient provision at Subsection 62

- 302.530(47)(b), F.A.C. As discussed earlier, EPA has proposed and promulgated criteria, in this and other proposals, to implement that
prov ision, which provides that "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. The criteria proposed in this rulemaking do not address or implement Florida’s narrative nutrient provision at Subsection 62

- 302.530(47)(a), F.A.C. which provides that “[t]he discharge of nutrients shall continue to be limited as needed to prevent violations of other standards contained in this chapter. Human

- induced nutrie nt enrichment (total Comment [E31]: OMB edit accepted.Page 61 of 221 nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Sections 62

- 302.300, 62

- 302.700, and 62

- 4.242, F.A.C.” Subsection 62

- 302.530(47)(a), F.A.C. remains in place as an applicable WQS for CWA pu rposes and could result in more stringent nitrogen and phosphorus limits than those proposed in this rule, where necessary to protect other applicable water quality standards in Florida.
D. EPA Determination Regarding Florida and Consent Decree On Janua ry 14, 2009, EPA determined under CWA section 303(c)(4)(B) that new or revised water quality standards in the form of numeric water qualit y criteria for nitrogen and phosphorus pollution are necessary to meet the requirements of the CWA in the State of Flo rida. EPA’s determination is available at the following w ebsite: http://water.epa.gov/lawsregs/rulesregs/florida_consent.cfm

. Subsequently, EPA entered into a C onsent D ecree with Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper, effective on December 30, 2009, which established a schedule for EPA to propose and promulgate numeric nutrient criteria for Florida’s lakes, springs, flowing waters , estuari es , and coastal waters , as well as downstream protection values (DPVs) to protect downstream lakes and estuaries

. The Consent Decree provided that if Florida submitted and EPA approved numeric nutrient criteria for the relevant water bodies before the date s outlined in the schedule, EPA would no longer be obligated to propose or promulgate criteria for those water bodies.

E . EPA ’s Rulemaking and Subsequent Litigation Comment [E32]: OMB edit accepted.Page 62 of 221 On December 6 , 2010, EPA published a rule finalizing numeric nutrient criteria for Florida’s lakes , springs, and flowing waters outside of the South Florida Nutrient Watershed Region (40 CFR 131.43)

. The 2010 “inland waters rule” was previously scheduled to take effect on March 6, 2012, with the exception o f one provision that allow ed entities to submit Site

- Specific Alternative Criteria (SSAC) effective February 4,
2011. The March 6, 2012 effective date was subsequently extended on two occasions ( 77 FR 13497 and 77 FR 39949) such that the current effective date of the rule is January 6, 2013. Concurrently with this proposal, EPA is issuing a separate proposed rule to stay the inland w aters rule until November 15, 2013. For more information on the proposed stay rule, see http://water.epa.gov/lawsregs/rulesregs/florida_inland.cfm

. Following the publication of the inland waters rule, 12 cases were filed in the U.S. District Court for the Northern District of Florida challenging the rule. The cases, consolidated before Judge Robert Hinkle in the Tallahassee Division of the Northern District, were filed by environmental groups, Florida ’s State Department of Agriculture, the South Florida Wat er Management District , and various industry/discharger groups. The challenges alleged that EPA’s determination and final inland waters rule were arbitrary, capricious, an abuse of discretion, and not in accordance with the law for a variety of reasons

. Or al argument in the case was held on January 9, 2012 before Judge Hinkle

. On February 18, 2012, the Court upheld EPA’s January 2009 determination and the final numeric nutrient criteria for Florida’s lakes and springs, as well as the site

specific alternati ve criteria (SSAC) provisions and the provisions for calculating DPVsPage 63 of 221 using either modeling or a default option for an impaired lake that is not attaining its numeric nutrient criteria. 150 With regard to EPA’s numeric nutrient criteria for flowing waters (i. e., streams) and the default option to calculate DPVs for unimpaired lakes based on ambient stream nutrient concentrations at the point of entry to the lake, the Court found that EPA had not provided sufficient information in its final rule explaining why or how the criteria or DPV protect against harmful increases, as opposed to any increase, in nutrients. The Court observed that EPA’s scientific approach to deriving stream criteria (i.e., the reference condition approach), including the criteria’s duratio n and frequency components, “are matters of scientific judgment on which the rule would survive arbitrary

- or - capricious review.” The Court also found, however, that EPA had not explained in sufficient detail how the stream criteria would prevent a “harmful increase in a nutrient level”. In addition, the Court found that EPA had not explained in sufficient detail how exceedances of the default DPV for unimpaired lakes would lead to “harmful effects” in the downstream lake. Thus, the Court invalidated these two aspects of EPA’s final rule and remanded them to the Agency for further action. Concurrently with this proposal, EPA is issuing a separate proposed rule for Florida’s streams and DPVs for unimpaired lakes ( Water Quality Standards for the State of Flori da’s S treams and
Downstream Protection Values for Lakes: Remanded Provisions ). For more information on the proposed rule for the remanded provisions, see http://water.epa.gov/lawsregs/rulesregs/florida_inland.cfm

.

150 Case 4:08

- cv - 00324

- RH

- WCS, February 18, 2012.Page 64 of 221 On several occasions, the court granted EP A’s request to modify the deadlines in the D ecember 2009 Consent Decree. 151 Under the revised Consent Decree, EPA is required to propose criteria for Florida’s estuaries, coastal waters, and south Florida inland flowing waters by November 30 , 201 2 and to fin alize such criteria by September
30 , 201 3. In accordance with the January 14, 2009 determination, the December 30, 2009 Consent Decree, and the subsequent modifications to the deadlines in the December 30, 2009 Consent Decree, EPA is proposing in this not ice numeric nutrient criteria for estuaries and coastal waters in the State of Florida, and south Florida inland flowing waters. This proposed rule satisfies EPA’s requirement to propose criteria for these three categories of Florida waters by November 30, 2012.

F

. Florida Adoption of Numeric Nutrient Criteria and EPA Approval
On June 13, 2012, FDEP submitted new and revised WQS for review by the EPA pursuant to section 303(c) of the CWA. These new and revised WQS are set out primarily in Rule 62

- 302 of t he F.A.C. [Surface Water Quality Standards]. FDEP also submitted amendments to Rule 62

- 303, F.A.C. [Identification of Impaired Surface Waters], which sets out Florida’s methodology for assessing whether waters are attaining State WQS. On
N ovember 30 , 2012, EPA approved t he provisions of these rules submitted for review that constitute new or revised WQS ( referred to in this preamble as the “newly

- approved State WQS”).

151 http://water.epa.gov/lawsregs/rulesregs/florida_consent.cfmPage 65 of 221 Among the newly

- approved State WQS are numeric criteria for nutrients that apply to a set of estuaries and coastal marine waters in Florida. Specifically, these newly

approved State WQS apply to Clearwater Harbor/St. Joseph Sound, Tampa Bay, Sarasota Bay, Charlotte Harbor/Estero Bay, Clam Bay, Tidal Cocohatchee River/Ten Thousand Islands, Flor ida Bay, Florida Keys, and Biscayne Bay. Under the Consent Decree, EPA is relieved of its obligation to propose numeric criteria for these waters.

III. Proposed Numeric Criteria for Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing W aters

In this notice of proposed rulemaking, EPA is proposing numeric nutrient criteria
to protect against harmful increases in nutrients, and therefore, protect the designated uses of the State of Florida’s Class I, II , and III waters, s pecifically Florida’s estuaries and coastal waters (excluding those contained in Florida’s newly

- approved State WQS) , and south Florida inland flowing waters

. This proposed rule also includes downstream protection values (DPVs) to ensure the attainment and maintenance of WQS in downstream estuarine and south Florida marine waters. The proposed criteria and related provisions in this rule reflect a detailed consideration of the best available scientific research, data, and analyses related to the specific circumstances for deriving numeric nutrient criteria in the State of Florida. EPA’s actions are consistent with and support existing Florida WQS regulations.Page 66 of 221 EPA proposes developing numeric nutrient criteria to restore and maintain the balance of natural populations of aquatic flora and fauna in Florida waters . The analytical process that EPA used to derive the proposed criteria consisted of several steps that included (1) classification of the water body systems, (2) subdividing water body systems into smaller segments that have similar chemical, physical, and biological features, (3) review and analysis of biological endpoints, and (4) application of one or more analytical methodologies. After accounting for the spatial coverage of Florida ’s newly

- approved State WQS, EPA grouped Florida’s remaining estuarine and coastal waters according to the natural geographic features of estuarine basins and their associated watersheds (classification). This resulted in 19 estuarine systems and three coa stal systems. Next , EPA divided each resulting estuary and coastal system into segments on the basis of similar biological, chemical, and physical attributes (segmentation). Segmentation resulted in 89 estuarine segments among the 19 estuarine systems and 71 coastal segments among the three coastal systems. I n the Big Bend region (Ochlockonee Bay to Springs Coast ) EPA combined coastal waters with estuarine waters for analysis. The classification serves as an organizing framework for analyses, and the segmen tation delineates areas in each estuary or coastal system where the numeric nutrient criteria apply. EPA is proposing to develop numeric nutrient criteria for Florida’s estuarine and coastal waters based on three biological endpoints that are sensitive to changes in nitrogen and phosphorus concentrations. These biological endpoints reflect the water quality conditions necessary to ensure protection of balanced populations of aquatic floraPage 67 of 221 and fauna: (1) maintenance of seagrasses (as measured by water clarit y sufficient to maintain historic depth of seagrass colonization), (2) maintenance of balanced algal populations (as measured by chlorophyll a concentrations associated with balanced phytoplankton biomass), and (3) maintenance of aquatic life (as measured by levels of dissolved oxygen sufficient to maintain aquatic life). For each water body, EPA derived numeric nutrient criteria based on the most nutrient sensitive of the three endpoints and the sufficiency of data available in each segment. For each estu ary and coastal system, one of three analytical approaches was used to derive numeric nutrient criteria

— reference condition, stressor

- response (statistical modeling) , and mechanistic modeling. In some cases, a secondary approach provide d corroborating evidence for the results of the primary analytical methodology. EPA evaluated multiple lines of evidence to determine the analytical approach that was best suited for derivation of numeric nutrient criteria in each estuar ine or coastal syste m. In general, and as discussed in more detail in later Sections of this proposed rule , the reference condition approach was applied when there were sufficient data available to characterize conditions that we re representative of and protective of designat ed uses, the
stressor

- response approach was applied when there were sufficient data available to statistically quantify relationships between nutrient concentrations and the biological endpoints, and lastly, the mechanistic modeling approach was applied wh en there were sufficient data and information available to quantify the relationships between nutrient loads and the biological endpoints

. For calculating DPVs for estuaries and south Florida marine waters , EPA is proposing four approaches for setting nitr ogen and phosphorus protective levels in aPage 68 of 221 hierarchy that reflect s the data and scientific information available , including (1) water quality simulation modeling, (2) reference condition approach, (3) dilution models , and ( 4 ) the numeric nutrient criteria in the estuarine segment to which a freshwater stream or canal discharges. For south Florida EPA is proposing the use of downstream protection values (DPVs) to manage nitrogen and phosphorus pollution in the inland flowing waters and protect the water qua lity of estuaries and coastal waters downstream. As in estuarine and coastal systems, EPA followed a series of steps to derive criteria in south Florida inland flowing waters, including classification of water bodies, segmentation, review and analysis of b iological endpoints, application of analytical methodologies, and development of DPVs. EPA defined south Florida inland flowing waters as inland predominantly fresh surface waters that have been classified as Class I or Class III , which encompasses the wat ers south of Lake Okeechobee, the Caloosahatchee River (including Estero Bay) watershed, and the St. Lucie watershed. EPA segmented south Florida waters by identifying 22 canal pour points that drain freshwater to each marine segment. To manage nitrogen an d phosphorus pollution in the inland flowing waters and protect the water quality of estuaries and coastal waters downstream EPA then screened water quality data at each pour point to prevent the us e of upstream water quality data that coincided with a doc umented downstream impact . EPA then calculated DPVs using the reference condition approach. In deriving scientifically sound numeric nutrient criteria for this proposed rulemaking, EPA relied on the local technical expertise of various scientific experts i n Florida . EPA met and consulted with FDEP ’s scientific and technical expert s during thePage 69 of 221 development of these numeric nutrient criteria as part of an ongoing collaborative process to analyze, evaluate, and interpret a substantial amount of Florida

- specific data. EPA carefully evaluated the technical approaches and scientific analys e s that FDEP presented as part of the ir draft approaches to develop numeric nutrient criteria for estuaries within the State

. Finally, EPA also carefully considered substantial st akeholder input from twelve public hearings conducted by FDEP during 2010 , i n addition to working with scientists from several Florida National Estuary Programs (NEPs), Water Management Districts, universities, and other government agencies in Florida.
To further ensure the best use of available data and scientific analyses for deriving criteria , the Agency submitted its potential methods and approaches for an independent, scientific peer review by EPA ’s Science Advisory Board (SAB) in November 2010

. The SA B reviewed the document entitled , Methods and Approaches for Numeric Nutrient Criteria for Nitrogen/Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters , and submitted their final recommendations to EPA in July 20 11. 152 The SAB agreed that a dual nutrient strategy to derive criteria for both nitrogen and phosphorus is warranted. The SAB also found that all of the approaches that EPA proposed for use in this rulemaking (i.e., reference condition, stressor

- response , an d mechanistic modeling) have utility and recommended that a combination of approaches be used where data and models are available. The SAB provided numerous recommendations to strengthen the application of the approaches to develop numeric

152 USEPA

- SAB. 2011

. Review of EPA’s Draft Approaches for Deriving Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters . EPA

- SAB

- 11

- 010. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC. USEPA. 2010

. Methods and Approaches for Deriving Numeric Criteria for Nitrogen/Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters. U.S. Environmental Protection Agency, Office of Water, Washington, DC.Page 70 of 221 nutrient criteri a for Florida waters that EPA has used to refine the methods and approaches for deriving the criteria proposed in this rulemaking

. 153 Section III.A provides an overview of the technical elements used to support derivation of the numeric nutrient criteria proposed in this rulemaking for estuaries and coastal waters

. 154 The remainder of Section III specifically describes EPA’s proposed

numer ic nutrient criteria for estuaries ( S ection III.B), coastal waters ( S ection III.C), and south Florida inland flowing waters ( S ection III. D ). Also included are proposed DPVs for estuaries ( S ection III.B) and south Florida marine waters ( S ection III.D).
A. General Information and Approaches For each group of waters addressed in Section III, EPA is proposing to use system

- specific approaches based on the classification and segmentation results for each system (described in detail in S ection s III.B, III.C, an d III.D) for the derivation of numeric nutrient criteria to ensure that the diversity of unique ecosystems found in each type of water body is taken into consideration. This system

- specific approach allows the Agency to consider the physical, chemical, and biological characteristics of a particular water body and to select a scientifically defensible approach, considering the data and information available for each system . This section describes the technical approaches EPA employed to derive the proposed c riteria and DPVs, including (1) data and segmentation, (2) biological endpoints, and (3) analytical methodologies. 1. Data Sources and Segmentation

153 EPA response letter to SAB. < http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/DCC3488B67473BDA852578D20058F 3C9 /$File/EPA

- SAB

- 11

- 010_Response_10

- 26

- 2011.pdf >. Accessed May 2012. 154 Additional details are provided in a separate document, the Technical Support Document for U.S. EPA’s Proposed Rule for Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Water s, and Southern Inland Flowing Waters (TSD) ; located at www.regulations.gov, Docket ID No. EPA

- HQ

- OW

- 2010

- 0222.Page 71 of 221 a) Estuaries Florida’s estuarine areas encompass approximately 1,950 square miles. EPA used the IWR Run 40 database 155 to identify available data from a range of sampling sites in Florida’s estuaries

. T o compute relationships between nutrient concentrations and chlorophyll a , EPA relied on measurements of Total Kjeldahl Nitrogen (TKN), TN, Nitrate

- Nitrite (NO 3 - NO 2 ), TP, and chlorophyll a from the IWR Run 40 database. T he resulting dataset included 180,814 water quality samples, collected at 13,648 sites. The Agency also analyzed additional data submitted by local experts and organizations. The water quality and b iological communities of an estuary are affected by multiple factors related to the shape and size of the estuary, its connections to the ocean, geology, climate, and watershed characteristics (e.g., watershed area and land use)

. Because each of these fact ors can vary from one system to another, causing the water quality and aquatic populations of flora and fauna in each estuary to be distinct , EPA proposes to classify 19 individual estuarine systems based on the natural geographic features of estuarine bas ins and their associated watersheds. This approach has been utilized previously in development of the NOAA Coastal Assessment Framework. 156 This approach is also consistent with a watershed approach to water quality management, which EPA encourages as a way to integrate and coordinate efforts within a watershed in order to most effectively and efficiently assess conditions and implement controls. 157

155 Florida's IWR data are the chemical, physical and biological water quality data that FDEP uses to create its integrated reports. IWR Run 40. Updated through February 2010. FL IWR and STORET can be found at: < http://www.dep.state.fl.us/WATER/STORET/INDEX.HTM > 156 NOAA. 2007. NOAA’s Coastal Geospatial Data Project, Coastal Assessment Framework (CAF)

. NOAA/NOS Special Projects Office

- Coastal Geosp atial Data Project. Silver Spring, MD. < http://coastalgeospatial.noaa.gov/ >. Accessed May 2012. 157 USEPA. 2008. Handbook for Developing Watershed Plans to Restore and Protect Our Waters. EPA 841

- B

- 08

- 002. U.S . Environmental Protection Agency, Office of Water, Washington DC.Page 72 of 221 EPA is proposing to sub

- divide each estuarine system into segments based on physical factors and long

- term avera ge salinity gradients. Estuaries are complex and dynamic systems that reflect the mixing of fresh and marine water, and different ecological zones correspond to differences in salinity within each estuary . The estuary segments are expected to have unique p hysical, chemical, and biological characteristics that may respond differently to nutrient inputs than other segments within the same estuary

. 158 EPA is proposing numeric nutrient criteria for 89 individual segments in 19 estuaries. A detailed description and detailed maps of EPA’s proposed within

- estuary segments are provided in the TSD (Volume 1: Estuaries, Section 1.3 and for each estuarine system in Section 2). b) Coastal Waters
T here are substantial data available fro m satellite remote sensing that can be used in a scientifically defensible and reliable way in conjunction with available field monitoring data to derive numeric chlorophyll a criteria for coastal waters . Satellite remote sensing technologies have been wid ely used 159 to measure chlorophyll a in approximately 3,865 square miles of coastal waters in Florida. These technologies allow consistent and reliable monitoring of expansive areas of Florida's coastline. The data EPA used to derive numeric chlorophyll a c riteria for Florida’s coastal waters encompass a twelve year period of record (1998

- 2009). The length of this data record captures the long

- term variability that has been observed in water quality within Florida’s coastal waters and allows EPA to take adva ntage of the available remote

158 Telesh, I.V. , and V.V. Khlebovich. 2010. Principal processes within the estuarine salinity gradient: A review. Marine Pollution Bulletin 61(4

- 6):149

- 155. 159 Gregg, W.W., and N.W. Casey. 20 04. Global and regional evaluation of the SeaWiFS chlorophyll data set. Remote Sensing of Environment 93(4):463

- 479.Page 73 of 221 sensing data

. To obtain chlorophyll a measurements from satellite remote sensing (chl RS a ) , EPA processed data from over 1,000 8

- day composites of remotely sensed images from satellite ocean color data

. The eight

- day binning period is a standard approach based on the satellite orbit repeat period of 16 days for the Sea

- viewing Wide Field

- of

- view
Sensor ( SeaWiFS ) satellite. 160 EPA also obtained field monitoring TN, TP, and chlorophyll a data from FDEP IWR R u n 40, the Northeastern Gulf of Mexico Chemical Oceanography and Hydrography Study (NEGOM), the Ecology and Oceanography of Harmful Algal Blooms Research Program (ECOHAB), the Florida Fish and Wildlife Conservation Commission Fish and Wildlife Research Inst itute (FWRI), NOAA Oceanographic Data Center (NODC), Mote Marine Laboratory, and the SeaWiFS Bio

optical Archive and Storage System (SeaBASS) . Field monitoring data included over 5,500 chlorophyll a measurements, which were reduced to 1,947 measurements af ter screening for data quality, as described later in this proposed rule

. EPA is not proposing to derive TN and TP criteria for Florida’s coastal waters due to lack of sufficient field monitoring data for TN and TP

. Although it would be a more reliable indicator to include TN and TP in combination with chlorophyll a , EPA believes that the chlorophyll a criteria should protect these Florida waters because chlorophyll a can be a sensitive biological parameter that would serve as a signal to the State that nutrient pollution is creating an imbalance in the natural populations of aquatic flora and fauna in Florida's coastal waters. Where EPA has not derived criteria for certain parameters in this proposed rule, due to insu fficient scientific evidence to support a

160 Campbell, J.W., J.M. Blaisdell, and M. Darzi. 1995. Volume 32, Level

- 3 SeaWiFS Data Products: Spatial and Temporal Binning Algorithms. In: SeaWiFS Technical Report Series . eds. Hooker, S.B., E.R. Firestone, and J.G. Acker. NASA Technical Memorandum 104566, Vol

. 32. National Aeronautics and Space Administration. Greenbelt, M D

.Page 74 of 221 protective threshold for numeric nutrient criteria (e.g., TN and TP for the majority of Florida’s coastal waters), EPA or the State may consider deriving criteria in the future for those parameters. To ensure data quality, EPA screen ed available f ield monitoring data to find samples with , at a minimum, metadata for date, time, latitude, longitude, and chlorophyll

a or light attenuation information. Where multiple samples of chlorophyll a at different depths existed, EPA selected the sample closest to the surface in order to provide a better comparison to the remotely sensed data. The monitoring sampling times were also compared to the satellite overpass times. EPA used s amples falling wit hin a plus or minus three hour time window to minimize variability between the sample time and satellite overpass time. EPA then compared the satellite chl RS - a data to the field monitored chlorophyll a data . From this assessment EPA determined that chl RS - a accurately represent s chlorophyll a in coastal waters. For the purposes of deriving criteria for coastal waters using remote sensing data , EPA is proposing to exclude chl RS - a measurements taken during known bloom events of Karenia brevis from the statistical distribution of coastal data. K

. brevis is a dinoflagellate responsible for red tide. Satellites can detect K. brevis blooms when cell counts are above 50,000 cells/L. EPA flagged c oastal segments with cell count s greater than 50,000 c ells/L during an 8

- day composite and did not include them in the chl RS - a distributions used in criteria derivation

. 161 In addition, the same segment wa s flagged one week prior to and after a bloom detection to provide a temporal buffer as blooms are transpor ted along the coast. This proposed approach is consistent with recommendations

161 Heil, C.A., and K.A. Steidinger. 2009. Monitoring, management, and mitigation of Karenia blooms in the Eastern Gulf of Mexico. Harmful Algae 8:611

- 617.Page 75 of 221 from the Agency’s Science Advisory Board , which recommended EPA screen out these data points, as they are likely not representative of reference conditions

. 162 Analyses of cumulat ive distributions of chl RS - a show they are minimally affected by inclusion or removal of observations affected by K. brevis

. EPA classified Florida’s coastal waters into three main areas: the Florida Panhandle, West Florida Shelf, and Atlantic Coast. These three coastal areas were subdivided into a total of 7 1 segments based on FDEP’s Water Body Identification System (WBIDs) , physical factors, the optical properties of the coastal areas, water quality characteristics, and the jurisdictional limits of t he Clean Water Act (i.e., three nautical mile seaward limit). A detailed description of EPA’s data screening process and a map of the coastal waters are provided in the TSD (Volume 2: Coastal Waters, Section 1. 3 ).

c ) Request for Comment on Data and Segmen tation EPA believes the proposed data and segmentation approaches provide a strong foundation for the derivation of numeric nutrient criteria that will protect the designated uses in Florida's estuaries and coastal waters. EPA requests comment on all aspec ts of these approaches. Additionally, the Agency is soliciting additional relevant data and information to assist in the derivation of numeric nutrient criteria. Relevant data and information includes, but is not limited to: monitoring data for DO, chlorop hyll a , TN , TP , TKN, dissolved organic nitrogen, dissolved organic phosphorus, dissolved inorganic

162 USEPA

- SAB. 2011. Review of EPA’s draft Approaches for Deriving Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters . EPA

- SAB

- 11

- 010. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC.Page 76 of 221 nitrogen, dissolved inorganic phosphorus, and NO 3 - NO 2 . EPA also invites comment on the timeframe of the data used to derive criteria for each of the water bo dy types . In addition, EPA requests comment on excluding chl RS - a measurements taken during known bloom events of K

. brevis from the statistical distribution of coastal data. EPA also solicits additional available scientific data and information that could be used in the derivation of numeric criteria for nitrogen and phosphorus in coastal waters. Even though waters were assigned to segments to ensure homogeneity of water quality across different locations within a segment, EPA recognizes that limited variability may still exist across locations within a given segment. EPA also solicits comment on and requests any additional available information regarding the ability of the proposed segmentation approaches to account for the unique water quality condit ions that can be found in estuarine and coastal waters throughout the State. Finally, EPA is proposing to derive n umeric nutrient criteria using a system

- specific approach. EPA requests comment on the spatial scale of the proposed criteria and whether a br oader spatial approach would be more appropriate.

2. Biological Endpoints When deriving numeric nutrient criteria , it is important to identify nutrient

sensitive biological endpoints relevant to particular estuarine and coastal systems. These biological e ndpoints serve as sensitive measures to identify protective concentrations of TN, TP, and chlorophyll a that, in turn, will support balanced natural populations of aquatic flora and fauna and protect the State’s designated uses . EPA conducted an extensive evaluation of available scientific literature to select appropriate biologicalPage 77 of 221 endpoints, reviewing over 800 documents. From this review of the latest scientific knowledge, EPA has determined that maintenance of seagrasses, maintenance of balanced algal po pulations , and maintenance of aquatic life are three sensitive biological endpoints , which can be measured by water clarity (as it relates to light levels sufficient to maintain historic depth of seagrass colonization) , chlorophyll a , and DO, respectively, and appropriately use d in derivation of numeric nutrient criteria that protect the State’s designated uses from harmful increases in nitrogen and phosphorus concentrations

. The selection of these biological endpoints was based upon t heir scientific defensibility ; sensitivity to harmful, adverse effects caus ed by the pollutants nitrogen and phosphorus ; and the sufficiency of data available for each

. EPA derived TN, TP, and chlorophyll a criteria to: (1) maintain water clarity to achiev e seagrass depth of colonization targets, (2) reduce the risk of phytoplankton blooms, and (3) maintain dissolved oxygen concentrations sufficient for balanced, natural aquatic life in Florida’s estuaries and coastal waters

. As set out more fully in the fo llowing discussion , these three biological endpoints provide a scientifically defensible basis upon which to derive numeric nutrient criteria that protect balanced natural populations of aquatic flora and fauna over the full range of estuarine and coastal conditions across Florida ; waters that achieve these endpoints support designated uses

. a) Maintenance of Seagrasses EPA selected the maintenance of seagrasses , as measured by water clarity to maintain historic depth of seagrass colonization , as one biological endpoint and corresponding endpoint measure to derive numeric nutrient criteria for estuaries

. Healthy populations of seagrasses serve as widely recognized indicator s of biological integrity inPage 78 of 221 estuarine systems and, in turn, of balanced natura l populations of aquatic flora and fauna. 163 Because of the unique conditions that are created within seagrass communities, populations of other aquatic floral and faunal species benefit from the presence and abundance of seagrasses. 164 For example, seagrasse s act as nurseries for many species by providing refuge from predators. Seagrasses also improve water quality by trapping suspended sediments, preventing sediment resuspension, and retaining nutrients. Florida’s NEPs and FDEP have also used endpoint s based on seagrasses to derive their recommended estuarine criteria because of seagrass sensitivity to nutrient pollution

. Seagrass communities depend on a variety of physical, chemical, and biological conditions to thrive. Among these, adequate underwater light availability (as measured by water clarity) is one critical factor for seagrass health. The relationship between water clarity and the depth to which seagrasses grow, known as the depth of colonization, has been well

- documented. 165 When seagrasses receive s ufficient sunlight, seagrass biomass

163 Ferdie, M. , and J.W. Fourqurean. 2004. Responses of seagrass communities to fertilization along a gradient of relative availabil ity of nitrogen and phosphorus in a carbonate environment. Limnology and Oceanography 49(6):2082

- 2094. Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Shor t, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. BioScience 56(12):987

- 996. Doren, R.F., J.C. Trexler, A.D. Gottlieb, and M.C. Harwell. 2009. Ecological indicators for system

- wide assessment of the greater everglades ecosyst em restoration program. Ecological Indicators 9:S2

- S16. Gibson, G.R., M.L. Bowman, J. Gerritsen, and B.D. Snyder. 2000. Estuarine and Coastal Marine Waters: Bioassessment and Biocriteria Technical Guidance . EPA 822

- B

- 00

- 024. U.S. Environmental Protection A gency, Office of Water , Washington, DC

. http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/biocriteria/upload/2009_04_22_biocriteria _States_estuaries_estuaries.pdf.

. Accessed November 2011. 164 Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck Jr ., A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. Bioscience 56(12):987

- 996. 165 Dennison, W.C. 1987. Effects of light on seagrass photosynthesis, growth, and depth distribution. Aquatic Botany 27:15

- 26. Dennison, W.C., R.J. Orth, K.A. Moore, J.C. Stevenson, V. Carter, S. Kollar, P.W. Bergstrom, and R.A. Batiuk. 1993. Assessing water quality with submersed aquatic vegetation. BioScience 43(2):86

- 94.Page 79 of 221 remains constant or increases over time. Conversely, when incoming light is blocked by substances in the water column, such as phytoplankton, suspended solids, or color, seagrass growth slows or stops. Studies on seagra sses have documented th e relationship of nutrient pollution

- related accelerated algal growth to declines in available light and subsequent declines in seagrass communities. 166 Since the area within an estuary available for seagrass growth is partially a function of the total area with enough sunlight at sufficient depths to sustain growth, as water clarity decreases and reduces the amount of sunlight that can reach the seagrasses, the available area for seagrass growth also decreases. Hence, t he greater the water clarity (and associated available light), the deeper the water that can support seagrass communities and, therefore, the greater the extent of
seagrass coverage. EPA reviewed studies that empirically assessed the relationship between seagrass growth and available light 167 and is proposing that , for Florida, when an average value of

Duarte, C.M . 1991. Seagrass depth limits. Aquatic Botany 40(4):363

- 377. Gallegos, C.L. 1994. Refining habitat requirements of submersed aquatic vegetation: Role of optical models. Estuaries 17(1):187

- 199. Gallegos, C.L., and W.J. Kenworthy. 1996. Seagrass depth limit s in the Indian River Lagoon (Florida, USA): Application of an optical water quality model. Estuarine , Coastal and Shelf Science 42(3):267

- 288. Gallegos, C.L. 2005. Optical water quality of a blackwater river estuary: the Lower St. Johns River, Florida, US A. Estuarine , Coastal and Shelf Science 63(1

- 2):57

- 72. Steward, J.S., R.W. Virnstein, L.J. Morris, and E.F. Lowe. 2005. Setting seagrass depth, coverage, and light targets for the Indian River Lagoon system, Florida. Estuaries and Coasts 28(6):923

- 935. 166 F erdie, M. , and J.W. Fourqurean. 2004. Responses of seagrass communities to fertilization along a gradient of relative availability of nitrogen and phosphorus in a carbonate environment. Limnology and Oceanography 49(6):2082

- 2094. Orth, R.J., T.J.B. Carrut hers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott, and S.L. Williams. 2006. A global crisis for seagrass ecosystems. BioScience 56(12):987

- 996. 167 Dennison, W.C., R. J. Orth, K.A. Moore, J.C. Stevenson, V. Carter, S. Kollar, P.W. Bergstrom, and R.A. Batiuk. 1993. Assessing water quality with submersed aquatic vegetation. BioScience 43(2):86

- 94. Duarte, C.M. 1991. Seagrass depth limits. Aquatic Botany 40(4):363

- 377. Gal legos, C.L. 1994. Refining habitat requirements of submersed aquatic vegetation: Role of optical models. Estuaries 17(1):187

- 199. Steward, J.S., R.W. Virnstein, L.J. Morris, and E.F. Lowe. 2005. Setting seagrass depth, coverage, and light targets for the I ndian River Lagoon system, Florida. Estuaries and Coasts 28(6):923

- 935.Page 80 of 221 20 percent of the sunlight that strikes the water’s surface ( incident light ) reaches the bottom of the water column (to the depth of seagrass colonization ), sufficient light is available to maintain seagrass es . A similar value has been used in previous nutrient management efforts in Florida. 168
EPA is also proposing that protecting and maintaining water clarity sufficient to support an appropriate depth of colonization p rovides the greatest protection of balanced natural populations of aquatic flora and fauna since maintenance of seagrass habitat is critical to ecosystem conditions. EPA used available historical seagrass coverage data ( including the earliest available, ge nerally 1940

- 1960 , or more recent , 1992 ) to compute the historical maximum depth of seagrass colonization as a reference . In all cases the
most recent (2000

- 2010) seagrass coverage was also evaluated to determine existing depth of colonization, and to relate th is value to existing water quality. To compute seagrass depth of colonization, EPA overlaid seagrass coverage data and bathymetric data compiled by NOAA using a Geogr aphic Information System. 169 EPA then used the data on seagrass coverage to determine the maximum depths that seagrasses have been able to grow in each estuary, where applicable (this approach was not used in some estuaries in Florida that do not have histor ical evidence of seagrass colonization) , in order to identify a reference point for a healthy level of seagrass colonization

. Because seagrass habitats support a rich array of biological uses, 170 EPA is proposing to derive numeric nutrient

168 Janicki, A.J., and D.L. Wade. 1996. Estimating critical external nitrogen loads for the Tampa Bay estuary: an empirically based approach to setting management targets. Technical Publication 06

- 96. Prepared for Tampa Bay National Estuary Program, St. Petersburg, FL, by Coastal Environmental, Inc., St. Petersburg, FL.

170 Hughes, A.R., S.L. Williams, C.M. Duarte, K.L. Heck, Jr., and M. Waycott. 2009. Associations of concern: declinin g seagrasses and threatened dependent species. Frontiers in Ecology and the Environment 7(5):242

- 246.Page 81 of 221 criteria to mainta in a comparable depth of seagrass colonization to the reference level (i.e. seagrasses growing at the deepest observed depth of colonization ) to ensure protection of balanced natural populations of aquatic flora and fauna

. EPA chose to use the historical m aximum observed depth, and resulting areal coverage, because increasing nutrients beyond the point that is protective of maximum coverage of seagrass is likely to

cause a decline in seagrass coverage. Because a wide variety of organisms rely on healthy seagrass communities, a decrease in seagrass coverage to levels below the maximum observed depth will result in a decline in overall system health and biodiversity. 171 EPA calculated a water clarity target that would ensure 20% percent of incident light at t he surface would be able to reach the reference depth of colonization . Finally, EPA used this water clarity target to derive numeric criteria for TN, TP, and chlorophyll a to support balanced natural populations of aquatic flora and fauna

. (More detail on the importance of seagrass can be found in the TSD, Vo lume 1: Estuaries , Section 1.2.1 ). b) Maintenance of Balanced Algal Populations Based upon EPA’s extensive review of current scientific literature, EPA selected maintenance of balanced algal populati ons , as measured by the chlorophyll a concentrations associated with balanced phytoplankton biomass , as the second biological endpoint and corresponding endpoint measure to derive numeric nutrient criteria for estuaries and coastal waters . The maintenance of balanced algal populations is an

171 Hughes, A.R., S.L. Williams, C.M. Duarte, K.L. Heck, Jr., and M. Waycott. 2009. Associations of concern: declining seagrasses and threatened dependent s pecies. Frontiers in Ecology and the Environment 7(5):242

- 246. Orth, R.J., T.J.B. Carruthers, W.C. Dennison, C.M. Duarte, J.W. Fourqurean, K.L. Heck, A.R. Hughes, G.A. Kendrick, W.J. Kenworthy, S. Olyarnik, F.T. Short, M. Waycott , and S.L. Williams. 2006. A global crisis for seagrass ecosystems. BioScience 56(12):987

- 996. FFWCC. 2003. Conserving Florida's Seagrass Resources: Developing a Coordinated Statewide Management Program . Florida Fish and Wildlife Conservation Commission, F lorida Marine Research Institute. St. Petersburg, FL.Page 82 of 221 important sensitive biological endpoint because of its responsiveness to nutrient enrichment, integral role in aquatic food webs, well

- established use as an integrative measure of aquatic ecosystem condition, and correl ation with changes in floral composition and subsequent faunal response. 172 Chlorophyll a is the endpoint measure of balanced algal populations , and has a long history of use in aquatic ecology as a measure of phytoplankton biomass and production. 173 Elevated chlorophyll a concentrations resulting from nutrient pollution

- enhanced algal growth and accumulation are a well

documented symptom of eutrophication and the harmful, adverse impacts of nitrogen and phosphorus pollution across the nation , and specifically in Florida (refer to S ection II.A for additional information). 174 In most of Florida’s coastal and estuarine waters, healthy biological communities depend on balanced natural populations of algae because algae are integral components of aquatic food webs and aquatic nutrient cycling. 175

172 Boyer, J.N., C.R. Kelble, P.B. Ortner, and D.T. Rudnick. 2009. Phytoplankton bloom status: Chlorophyll a biomass as an indicator of water quality condition in the southern estuaries of Florida, USA. E cological Indicators 9s: S 56

- S 67. Hagy, J.D., J.C. Kurtz, and R.M. Greene. 2008. An approach for developing numeric nutrient criteria for a Gulf coast estuary. EPA 600R

- 08/004. U.S. Environmental Protection Agency, Office of Research and Development, Nation al Health and Environmental Effects Research Laboratory , Gulf Breeze, FL. Bricker, S.B., C.G. Clement, D.E. Pirhalla, S.P. Orlando, and D.R.G. Farrow. 1999. National Estuarine Eutrophication Assessment. Effects of Nutrient Enrichment in the Nation’s Estuaries

. N ational Oceanic and Atmospheric Administration, National O cean S ervice, Special Projects Office and the National Centers for Coastal Ocean Science , Silver Spring, M D

. See Section B.3 i n Appendix B of USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen /P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters . U.S. Environmental Protection Agency, Office of Water, Washingto n, DC

. 173 Wetzel, R.G. 2001. Limnology: Lakes and River Ecosystems

. 3rd ed

. Academic Press, San Diego, CA

. Kalff, J. 2002. Limnology: Inland Water Ecosystems

. Prentice

- Hall, Inc., Upper Saddle River, New Jersey. 174 Elser , J.J., M.E.S. Bracken, E.E. Cleland, D.S. Gruner, W.S. Harpole, H. Hillebrand, J.T. Ngai, E.W. Seabloom, J.B. Shurin, and J.E. Smith. 2007. Global analysis of nitrogen and phosphorus limitation of primary production in freshwater, marine, and terrestrial ecosystems. Ecology Letters 10:1135

- 1142. Smith, V.H. 2006. Responses of estuarine and coastal marine phytoplankton to nitrogen and phosphorus enrichment. Limnology and Oceanography 51(1 part 2):377

– 384 175 Hauxwell, J., C. Jacoby, T. Frazer, and J. Stevely. 2001. Nutrients and Florida’s Coastal Waters: The Links Between People, Increased Nutrients and Changes to Coastal Aquatic Systems . Florida Sea Grant Report No. SGEB

- 55. Florida Sea Grant College Program, University of Florida, Gainesville , FL

. < http://ed is.ifas.ufl.edu/pdffiles/SG/SG06100.pdf >. Accessed June 2011.Page 83 of 221 Elevated chlorophyll a concentrations resulting from nitrogen and phosphorus pollution alter the trophic state of estuarine and coastal waters and increase the frequency and magnitude of algal blooms. EPA evaluated the available scientific literature to determine chlorophyll a concentrations indicative of phytoplankton blooms associated with imbalance in natural populations of aquatic flora and fauna. Published reports on chlorophyll a concentrations in estuarine waters across the nation, including Florida estuaries, reflect the range of natural trophic state s and enrichment . These studies suggest that low algal bloom conditions are defined as maximum chlorophyll a concentrations less than or equal to 5 μg/L , medium bloom conditions are defined as maximum chlorophyll a concentrations from greater than 5 to 20 μg/L , high bloom conditions are defined as maximum chlorophyll a concentrations from greater than 20 to 60 μg/L , and hypereutrophic conditions are d efined by maximum bloom concentrations above 60 μg/L

. 176 Two Florida estuaries , Florida Bay and Pensacola Bay, were analyzed as a part of a larger NOAA national survey of estuaries . T he authors reported the average chlorophyll a concentrations were 20 μg/L o r less for seven of ten large estuaries nationally , and were especially low for Florida Bay (8 μg/L ) and Pensacola Bay (10 μg/L ). 177 Other l iterature regarding phytoplankton blooms indicated similar results. 178

NOAA. 2011. Overview of Harmful Algal Blooms

. National Oceanic and Atmosphe ric Administration, Center for Sponsored Coastal Research. < http://www.cop.noaa.gov/stressors/extremeevents/hab/default .aspx >. Accessed June 2011

. 176 Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

- 60. 177 Glibert, P.M. , C.J

. Madden, W. Boynton, D. Flemer, C. Heil, and J. Sharp , eds. 2010. Nutrients in Estuaries: A Summary Report of the National Estuarine Experts Workgroup, 2005

– 2007 . Report to U.S. Environmental Protection Agency, Office of Water, Washington DC. 178 OECD. 1982. Eutrophication of Waters: Monitoring, Assessmen t and Control . Organisation for Economic Cooperati on and Development, Paris, France. Painting, S.J., M.J. Devlin, S.J. Malcolm, E.R. Parker, D.K. Mills, C. Mills, P. Tett, A. Wither, J. Burt, R. Jones, and K. Winpenny. 2007. Assessing the impact of nutrien t enrichment in estuaries: susceptibility to eutrophication. Marine Pollution Bulletin 55:74

– 90.Page 84 of 221 Chlorophyll a concentration s associated with hypereutrophic conditions (>60 μg/L) reflect a trophic state that is unnatural for Florida estuaries. While some estuaries in the S tate are more productive than others, high chlorophyll a concentrations (20 to 60 μg/L) also do not appear to reflect balance d conditions in Florida, especially given observed ranges in Florida . Concentrations of chlorophyll a in this high range are associated more frequently with loss of seagrass and a shift of algal populations to monoculture or, in other words, a loss in the balance of diverse populations of aquatic flora

. 179 Moreover, this concentration range was also associated with conditions where other uses, including recreation, are adversely affected. Based on the range of chlorophyll

a concentrations indicative of natura l algal bloom conditions characteristic of Florida estuaries, as well as the literature on concentrations associated with harmful, adverse conditions for estuarine biota and other use support, EPA is proposing a chlorophyll a concentration of 20 μg/L as the water quality target to defin e a nuisance algal bloom

. T hus, e stuarine waters with chlorophyll a concentrations that exceed this water quality target threshold are indicative of imbalanced populations of aquatic flora and fauna (More det ail regarding EPA ’s analysis can be found in the TSD, Volu me 1: Estuaries,
S ection 1.2. 2 )

. EPA also considered the available scientific research described in this section to establish an allowable frequency of occurrence of phytoplankton blooms, represented by

Painting, S.J., M.J. Devlin, S.I. Rogers, D.K. Mills, E.R. Parker, and H.L. Rees. 2005. Assessing the suitability of OSPAR EcoQOs for eutrophication vs. ICES c riteria for England and Wales. Marine Pollution Bulletin 50:1569

– 1584

. Tett, P., R. Gowen, D. Mills, T. Fernandes, L. Gilpin, M. Huxham, K. Kennington, P. Read, M. Service, M. Wilkinson, and S. Malcolm. 2007. Defining and detecting undesirable disturbance in the context of marine eutrophication. Marine Pollution Bulletin 55:282

– 297. 179 Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169(1):39

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.Page 85 of 221 chlorophyll a levels greater than 20 μg/L, to further define this endpoint measure . EPA is proposing a value of 10% as an allowable frequency of occurrence of phytoplankton blooms , that is, chlorophyll a measurements may not exceed 20 μg/L more than 10% of the time. This frequency is also consistent with current nutrient management practices in Florida, such as those utilized in approved Florida TMDLs. c) Maintenance of Aquatic Li fe EPA selected maintenance of aquatic life , as measured by the sufficiency of dissolved oxygen (DO) to maintain aquatic life , as a third biological endpoint and corresponding endpoint measure to derive numeric nutrient criteria for estuaries. DO
concentr ations are a well

- known indicator of the health of estuarine and coastal biological communities. Aquatic animals including fish, benthic macroinvertebrates , and zooplankton depend on adequate levels of DO t o survive and grow. These levels may differ depend ing on the species and life stage of the organism (e.g., larval, juvenile, and adult). 180 To derive the DO endpoint, EPA conducted an analysis of the dissolved oxygen requirements of sensitive species in Florida using the Virginian Province dissolved
oxygen evaluation procedure. 181 This analysis derives DO levels that protect both larval recruitment and growth for aquatic organisms. EPA used t he results of this analysis to determine th e dissolved oxygen water quality targets considered for numeric nutrient

180 Diaz, R.J. 2001

. O verview of hypoxia around the world. Journal of Environmental Quality 30(2):275

- 281. Diaz, R.J. , and R. Rosenberg. 2008. Spreading dead zones and consequences for marine ecosystems. Science 321(5891):926

- 929. 181 Vincent, A.M., J. Flippin, E. Leppo, and J.D. Hagy III. Dissolved oxygen requirements of Florida

resident saltwater species applied to water quality criteria development. In review

. USEPA. 2000. Ambient Aquatic Life Water Quality Criteria for Dissolved Oxygen (Saltwater): Cape Cod to Cape Hattera s . E PA

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- 012. U.S. Environmental Protection Agency, Office of Water, Washington DC.Page 86 of 221 criteria development that would protect sensitive aquatic species in Florida estuaries. EPA is proposing that satisfying three different DO requirements in Florida’s estuarine waters would meet the needs of resident sensitive aquatic species, and thus sup port the maintenance of aquatic life. These requirements are an instantaneous DO concentration of 4.0 mg/L, a daily average DO concentration of 5.0 mg/L, and a bottom water average DO concentration of 1.5 mg/L. Both the instantaneous minimum of 4.0 mg/L an d the daily average of 5.0 mg/L are spatial averages over the water column for each estuarine segment. These values and interpretations are consistent with existing Florida DO criteria ( Subsection 62

- 302.530(30), F.A.C. ) and FDEP’s assessment pro cedures ( S ubsection 62

- 303.320(5), F.A.C. ) . (More detail on both the existing Florida DO criteria and EPA ’s analysis can be found in the TSD, Volume 1: Estuaries, S ections 1.2.3 and 1.4.1)

. d) Other Endpoints Considered by EPA EPA considered, but is not proposing t o use, the following nutrient

- sensitive biological endpoints: (1) harmful algal blooms (HABs), (2) coral, (3) epiphytes, (4) macroinvertebrate and fish indices, (5) macroalgae, (6) Spartina marshes (salt

- marshes), and (7) the Eastern oyster ( Crassostrea vi rginica ). EPA did not select t hese biological endpoints because there was an absence of sufficient data to quantify the link between measurements of these endpoints and nitrogen and phosphorus concentrations. Additional details on these alternative endpoin ts are provided in Appendix B in the Methods and Approaches for Deriving Numeric Criteria for Nitrogen/Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. 182

182 USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen /P hosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. U.S. Environmental Protection Agency, Office of Water, Washington, DC.Page 87 of 221 e) Request for Comment on Endpoints EPA believes that m aintenance of seagrass es, maintenance of balanced algal populations , and maintenance of aquatic life are the three most appropriate nutrient

sensitive biological endpoints to use to derive numeric nutrient criteria to ensure that nutrient concentrations in a body of water protect balanced natural populations of aquatic flora and fauna , and in turn support designated uses . EPA requests comment regarding the biological endpoints and endpoint measures selected . EPA also solicits additional scientific informati on on other appropriate endpoints that can be used to protect fish consumption, recreation , and the propagation and maintenance of a healthy, well

balanced population of fish and wildlife in Florida’s Class II and III estuarine and coastal
waters.

3. Ana lytical Methodologies EPA used three analytical approaches to derive TN, TP, and chlorophyll a numeric nutrient criteria for different types of waters in Florida. In most of Florida coastal waters, EPA is proposing to use a reference condition approach tha t utilizes data from waters that support balanced natural populations of aquatic flora and fauna to derive numeric nutrient criteria. In Florida estuaries (including some coastal waters in the Big Bend Coastal region ) , EPA is proposing to use statistical a nd mechanistic models to determine protective concentrations of TN , TP , and chlorophyll a linked to biological endpoints

. Where sufficient data were not available to apply statistical models ( i.e.,
stressor

- response approach ) in all segments in an estuary, EPA used mechanistic model predictions to derive criteria. In these instances, EPA analyzed the available stressor

-Page 88 of 221 response analysis as a second line of evidence , in segments where the data were available

. a) Reference Condi tion Approach
EPA is proposing to use the reference condition approach to derive numeric nutrient criteria in coastal waters that support balanced natural populations of aquatic flora and fauna

. EPA is proposing this approach to derive numeric chlorophyll a criteria for Florida’s coastal waters because the s cientific data and information available were insufficient to establish accurate quantifiable relationships between TN and TP concentrations and harmful, adverse effects due to the limited TN and TP data available. Therefore, EPA is proposing to rely upon the reference condition approach to identify numeric chlorophyll a criteria concentrations that protect the designated uses, and avoid any adverse change in natural popula tions of aquatic flora or fauna in Florida’s coastal
waters. The reference condition approach, which has been well documented, peer reviewed, and developed in a number of different contexts, 183 is used to derive numeric nutrient criteria that are protective of applicable designated uses b y identifying numeric

183 USEPA. 2000a. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, D C. USEPA. 2000b. Nutrient Criteria Technical Guidance Manual: Rivers and Streams. EPA

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- 002. U.S. Environmental Protection Agency, Office of Water, Washington, DC. Stoddard, J.L., D.P. Larsen, C.P. Hawkins, R.K. Johnson, and R.H. Norris. 2006. Setti ng expectations for the ecological condition of streams: the concept of reference condition. Ecological Applications 16:1267

– 1276. Herlihy, A.T., S.G. Paulsen, J. Van Sickle, J.L. Stoddard, C.P. Hawkins, L.L. Yuan. 2008. Striving for consistency in a natio nal assessment: the challenges of applying a reference

- condition approach at a continental scale. Journal of the North American Benthological Society 27:860

– 877. USEPA. 2001. Nutrient Criteria Technical Manual: Estuarine and Coastal Marine Waters . EPA

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- 003. U.S. Environmental Protection Agency, Office of Water, Washington, DC. USEPA

- SAB. 2011. Review of EPA’s draft Approaches for Deriving Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters . EPA

- SAB

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- 010. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC.Page 89 of 221 nutrient criteria concentrations occurring in least

- disturbed, healthy coastal waters that are supporting designated uses. To derive the proposed numeric nutrient criteria using the reference condition approach, EPA first selected ref erence conditions in Florida’s coastal waters where the Agency was confident that designated uses are protected. EPA review ed available monitoring information, peer

- reviewed literature, and technical reports to ensure that, where applicable, seagrass beds are healthy, DO is adequate for sensitive species, phytoplankton biomass is balanced , and that any other information relating to the ecosystem indicate s that the waters are supporting balanced natural populations of aquatic flora and fauna

. EPA also remove d data during periods of temporary known human disturbances (e.g., bridge and roadway construction) where natural populations were temporarily affected. Finally, EPA reviewed CWA section 303(d) listings, and removed data associated with impairment listing s for chlorophyll a , dissolved oxygen, and nutrients , as well as data from coastal segments adjacent to CWA section 303(d) impaired estuary waters, such that the resulting data would reflect unimpaired conditions

. EPA o nly removed data from the period of impairment. The result of this rigorous analysis was a set of reference waters that, although not pristine, reflected healthy conditions that were supporting designated uses, and thus free from harmful, adverse effects on natural populations of aquatic flora and fauna due to nutrient pollution. EPA has confidence that these reference waters are supporting designated uses and balanced natural populations of flora and fauna, and has confidence that if the criteria are attained or maintained at the concentrations that are among the highest observed in these waters, then designated uses and natural populations of aquatic flora and fauna will be protectedPage 90 of 221 in coastal waters. F urther details regarding data screening can be found in the TSD (Volume 2: Coastal Waters, Section 1. 4 ).
A fter selecting the reference waters , EPA calculated the annual geometric mean concentrations of chlorophyll a for each year of the data record and for each segment. 184
EPA then calculated a normal distribution based on the ann ual geometric mean chlorophyll a concentrations . From this distribution, which represents the population of water quality observations in each segment, EPA selected the 90 th percentile as the applicable criteria for each segment. EPA selected t he 90 th percentile as an appropriate concentration to specify the criterion

- magnitude because the Agency is confident that the distribution reflects minimall y - impacted, biologically healthy reference conditions, which support the State’s Class II and III designat ed uses

. The use of the 90 th percentile of chlorophyll a is also supported by several e utrophication assessment frameworks in Europe and the U.S, such as the Oslo

- Par is Commission “Common Procedure ” (OSPAR), Water Framework Directive of the EU, Assessment o f Estuarine Trophic Status in the US, and the Marine Strategy Framework Directive used by the European Commission , which i dentify the 90 th percentile as representati ve of a chlorophyll a concentration above which eutrophication is considered ecologically p roblematic or where an undesirable disturbance to aquatic life and water quality from eu trophication are highly likely to
appear . 185 For further information on the use of the reference approach s ee the TSD ( Volume 2, Coastal Waters, Section 1. 5 .1 )

.

184 Geometric means were used for averages in the reference condition, statistical modeling, and mechanistic modeling approaches because concentrations were log

- normally dis tributed. 185 OSPAR Commission. 2005. Common Procedure for the Identification of the Eutrophication Status of the OSPAR Maritime Area (Reference Number: 2005

- 3 ). OSPAR Commission, London. Ferreira, J.G., J.H. Andersen, A. Borja, S.B. Bricker, J. Camp, M.C. da Silva, E. Garcés, A

- S. Heiskanen,Page 91 of 221 EPA chose not to select the extreme upper end of the distribution (95 th or 100 th percentile). This is because these highest observed annual average concentrations (i.e., 95 th or 100 th percentile) have rarely been observed at any reference site and are most likely t o be heavily influenced by extreme event factors (e.g., hurricanes, droughts). Thus these highest observed concentrations could be outliers that are not representative of conditions that would typically support designated uses and natural populations of
aq uatic flora and fauna. Therefore, EPA has less confidence that such highest observed concentrations would continue to be supportive of designated uses and natural populations of aquatic flora and fauna if maintained in all coastal waters at all times

. Alt ernatively, the selection of a much lower percentile, such as a representation of the central tendency of the distribution (i.e., 50 th percentile), would not be appropriate because it would imply that half of the conditions observed at reference sites woul d not support designated uses and natural populations of aquatic flora and fauna, when EPA’s analysis indicates that they do. By setting the criteria at the 90 th percentile of the reference condition distribution, EPA believes the designated uses, i.e., na tural populations of aquatic flora and fauna, will be protected when these concentrations are attained for the majority of coastal water segments. For those coastal water segments that are shown to accommodate or require higher or lower concentrations, the SSAC provision is provided in EPA’s proposed rule as discussed in Section V.C.
C. Humborg, L. Ignatiades, C. Lancelot, A. Menesguen, P. Tett, N. Hoepffner, and U. Claussen. 2011. Overview of eutrophication indicators to assess environmental status within the European Marine Strategy Framework Direct ive. Estuarine, Coastal and Shelf Science 93(2):117

- 131. Bricker, S.B., J.G. Ferreira, and T. Simas. 2003. An integrated methodology for assessment of estuarine trophic status. Ecological Modelling 169:39

– 60

. European Commission. 2003. Common Implementatio n Strategy for the Water Framework Directive ( 2000/60/EC): Guidance Document No. 5, Transitional and Coastal Waters

- Typ o logy, Reference Conditions and Classification Systems

. European Commission, Working Group 2.4

— COAST , Office for Official Publications of the European Communities, Luxembourg.Page 92 of 221 b) Statistical Model ing EPA evaluated the data available for each estuary segment in terms of temporal and spatial representativeness to establish whether there were sufficient data to use a statistical model. Where enough monitoring data in estuaries were available, EPA developed statistical models (i.e., stressor

- response relationships 186 ) t hat quantified relationship s between TN, TP, chlorophyll a , and the selected endpoint measure s ( i

. e., water clarity to maintain maximum depth of seagrass colonization and chlorophyll a concentrations associated with balanced phytoplankton biomass ). There were not enough
t emporally

- resolved DO monitoring data, particularly in pre

- dawn hours when dissolved oxygen concentrations are typically lower than during that day 187 , in any of the estuaries to permit the use of statistical models to derive criterion values associated with sufficient DO to support aquatic life

. Where the available endpoints were shown to be sufficiently sensitive , EPA u s ed th e s e relationship s to calculate TN, TP, and chlorophyll a concentrations that achieve d the selected water quality targets for these endpoints , which serve as measures of balanced natural populations of aquatic f lora and fauna

. To determine chlorophyll a concentrations supportive of the water clarity depth target to achieve the healthy seagrass endpoint in a segment , EPA estimate d the relationship between annual geometric mean chlorophyll a concentratio n s and annual geometric mean water clarity for each segment. Then , EPA computed the chlorophyll a criterion as the chlorophyll a concentration that was associated with the w ater clarity

186 USEPA. 2010. Using stressor

- response relationships to derive numeric nutrient criteria

. EPA

- 820

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. S

. Environmental Protection Agency, Office of Water, Office of Science and Technology , Washington, DC

. 187 D’Avanzo, C

. , and J .N. Kremer. 1994. Diel Oxygen Dynamics and Anoxic Events in an Eutrophic Estuary of Waquoit Bay, Massachusetts. Estuaries and Coasts 17(1 B ):131

- 139.Page 93 of 221 target. In other words, the chlorophyll a criterion was determined suc h that the water quality target for water clarity was achieved on an annual average basis

. 188 In some segments, increased annual geometric mean chlorophyll a concentrations w ere not associated with decreased annual geometric mean water clarity, possibly because other factors, such as suspended sediment or colored dissolved organic material, more strongly affected water clarity. 189 In these segments, EPA determined that the water clarity endpoint was not suffici ently sensitive to increased chlorophyll a , and therefore, this endpoint was not used to derive a chlorophyll a criterion, and associated TN and TP criteria in that segment. EPA also used stressor

- response relationships to derive chlorophyll a criteria to maintain balanced algal populations . To this end, EPA used logistic regression to estimate the relationship between annual geometric mean chlorophyll a concentration s and the probability of any single chlorophyll a measurement exceeding EPA’s proposed
wat er quality target of 20 μg/L during the year. Then, EPA derived a chlorophyll a criterion from this relationship by selecting the annual geometric mean chlorophyll a concentration that ensure d that any single chlorophyll a measurement would not exceed 20 μ g/L more than 10% of the time. After calculating chlorophyll a candidate criteri a values necessary to meet the water quality targets for the t wo biological endpoints for which data were available (maintenance of seagrasses and maintenance of balance d algal populations) , in each water body segment, EPA selected the more stringent of the t wo as the proposed criterion

188 Dennison, W.C. 1987. Effects of light on seagrass photosynthesis, growth, and depth distribution. Aquatic Botany 27:15

- 26. 189 Gallegos, C.L. 2005. Optical water quality of a blackwater river estuary: the Lower St. Johns River, Florida, USA. Estuarine, Coastal and Shelf Science 63(1

- 2):57

- 72.Page 94 of 221 for that segment to ensure that the proposed chlorophyll a criterion would protect both endpoints. To calculate TN and TP criteria associ ated with the chlorophyll a criterion, EPA estimated the relationship between annual geometric mean TN and TP concentrations and annual geometric mean chlorophyll a concentration s for each segment. EPA then used th e s e relationship s to compute the TN and TP concentrations that we re required to maintain average chlorophyll a concentrations at the chlorophyll a criterion. In some estuary segments, increased TN or TP concentrations were not associated with increased chlorophyll a concentrations, possibly becaus e of differences in the proportion of TP or TN that was composed of biologically unavailable forms of phosphorus or nitrogen, or because of unique physical or hydrological characteristics of the estuary segment. 190 In these segments, EPA determined that chlo rophyll a concentrations w ere not sufficiently sensitive to increases in TN or TP concentrations, and therefore, this approach was not used to derive criteri a for these segments

. In instances where one of the endpoints was not sufficiently sensitive to increases in TN or TP concentrations the relationship of the other endpoint to TN or TP was examined. If both endpoints were insensitive to TN or TP, then the statistical models

were not used to derive candidate criteria for the particular nutrient.
In a limited number of estuar y segments , EPA found that the TN , TP , or chlorophyll a concentrations that were associated with achieving the water quality targets for the biological endpoi nts were outside ( greater than or less than ) the range of TN , TP , or chlorophyll a concentration s observed in the available data for the estuary. In other

190 USEPA. 2001. Nutrient Criteria Technical Manua l: Estuarine and Coastal Marine Waters . EPA

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- 003. U.S. Environmental Protection Agency, Office of Water, Washington, DC.Page 95 of 221 words, in these situations , using statistical models to derive numeric nutrient criteria would requir e EPA to extrapolate the TN, TP , and chlorophyll a relationships beyond the range of availab le data. Because of the uncertainty inherent in conducting such extrapolations, EPA is proposing instead to set numeric nutrient criteria derived from these statist ically modeled relationships at the 90 th percentile or 10 th percentile limit of the distribution of available data instead of deriving criteria outside the range of data observations. 191 For example, if the statistically modeled value for TP associated with achieving all water quality targets to meet the biological endpoints in an estuary segment was les s than the lower limit 10 th percentile of annual average values of TP observed in that segment, EPA is proposing to set th e criterion value at the 10 th percentile lower limit of annual average values of TP. This approach defines criterion values that maintain balanced natural populations of aquatic flora and fauna within the limits of available data and is consistent with EPA’s reasoning for the selection of the 90 th percentile when using the reference condition approach

. EPA request s comment on whether to extrapolate
stressor

- response relationships beyond the range of available data. For further information on the use of s tatistical modeling approach, see the TSD (Volume 1: Estuaries, Section 1.4.2 and Appendix B ). c) Mechanistic Modeling
EPA also quantified relationships between nitrogen and phosphorus loads and the three biological endpoints using a coupled system of watershed models and estuarine hydrodynamic and water quality models . These models simulate d the physical, chemical, and biological processes in a watershed

- estuarine system. EPA first used the watershed

191 USEPA. 2010. Using Stressor

- response Relationships to Derive Numeric Nutrient Criteria . EPA

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- 001. U.S. Environmental Protection Agency, Office of Water, Washington, DC. Comment [E33]: OMB edits accepted.Page 96 of 221 models to develop estimates of TN, TP, and freshwat er inputs to the estuary. Next, EPA used the estuarine hydrodynamic and water quality models to simulate estuarine water quality responses to the watershed inputs , including changes in estuarine TN, TP, and chlorophyll a concentrations, water clarity, and DO. Then, EPA utilized these models to determine concentrations of TN and TP that would protect the most nutrient

- sensitive biological endpoint to derive the numeric nutrient criteria. To select the appropriate models, EPA developed an inventory of watersh ed and estuary models that have been applied previously to estuaries in Florida, including models developed by FDEP. 192 Based on the results of the review, EPA selected the Loading Simulation Program in C++ (LSPC) 193 to simulat e freshwater flows and nutrient
l oading from watersheds, the Environmental Fluid Dynamics Code (EFDC) 194 to simulat e estuarine hydrodynamics, and the Water Quality Analysis Simulation Program (WASP) 195 to simulat e estuarine water quality. 196 LSPC can continuously simulate the hydrologic and wa ter quality processes on pervious and impervious land surfaces, in streams, and in well

- mixed impoundments throughout the watershed and can provide daily estimates of stream flow, TN , and TP concentrations entering the estuary . In addition , LSPC is publicly available and has been

192 Wolfe, S.H. 2007. An Inventory of Hydrodynamic, Water Quality, and Ecosystem Models of Florida Coastal and Ocean Waters . Florida Department of Environmental Protection , Tallahassee, Florida. 193 USEPA. 20 11. Loading Simulation Program in C++ (LSPC)

. http://www.epa.gov/athens/wwqtsc/html/lspc.html . Accessed December 2011. 194 USEPA. 2011. Environmental Fluid Dynamics Code (EFDC)

. http://www.epa.gov/athens/wwqtsc/html/efdc.html . Accessed December 2011. 195 USEPA. 2011. Water Quality Analysis Simulation Program (WASP)

. http://www.epa.gov/athens/wwqtsc/html/wasp.html . Accessed December 2011. 196 USEPA. 2010. Methods and Approaches for Deriving Numeric Criteria for Nitrogen/Phosphorus Pollution in Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters. U .S. Environmental Protection Agency, Office of Water, Washington, DC.Page 97 of 221 peer reviewed. 197 LSPC has been successfully applied for water quality management
purposes to many watersheds throughout the southeastern United States and Florida. Therefore, EPA is proposing to appl y the LSPC model to th e watersheds in Florida outside of the South Florida Nutrient Watershed Region

. EFDC and WASP have been applied in conjunction to simulate hydrodynamics and water quality (respectively) for many water quality management projects throughout the southeaster n United States and Florida. EFDC and WASP are also publicly available and have undergone peer review

. 198 Based on th e extensive use of these models for similar applications and their acceptance in the scientific community , EPA is proposing
to use the EFDC a nd WASP models to derive numeric nutrient criteria for Florida ’s estuaries.
For estuaries where monitoring data were insufficient to calculate criteria using the statistical models, EPA mechanistically model ed the conditions in each system and corresponding watershed that occurred from 2002

- 2009 using all available , screened data

. EPA evaluated data over the historic period of record and is proposing to use 2002 through 2009 as a representative modeling period because complete, continuous f low and water quality data were available

. T his period also reflects the range of hydrology and meteorology observed over the historic period of record across the Florida estuaries. EPA then used relationships between TN , TP , and biological endpoints
quan tified by the mechanistic models to derive numeric nutrient criteria. That is, EPA

197 USEPA

- SAB. 2011. Review of EPA’s draft Approaches for Deriving Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters . EPA

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- SAB. 2011. Review of EPA’s draft Approaches for Deriving Numeric Nutrient Criteria for Florida’s Estuaries, Coastal Waters, and Southern Inland Flowing Waters

. EPA

- SAB

- 11

- 010. U.S. Environmental Protection Agency, Science Advisory Board, Washington, DC.Page 98 of 221 determined the concentrations of TN and TP that were associated with meeting all biological endpoints in each segment. Because estuaries differ in their physical, chemical , and hydrological characteristics, EPA expected that differences would exist in the degree to which different biological endpoints respond to changes in nutrient concentration. For example, in certain estuaries, high concentrations of colored dissolved or ganic material (CDOM) occur naturally and reduce water clarity. Because of the influence of CDOM in these estuari ne systems , changes in TN, TP, and chlorophyll a are not strongly associated with changes in water clarity. In these systems , the water clarity endpoint does not appear to be sensitive to changes in nutrients, and therefore, the water clarity endpoint does not provide useful information for the purposes of deriving numeric nutrient criteria in th ese system s . In each estuar ine system , EPA used out put from mechanistic models and available monitoring data to evaluate the sensitivity of each endpoint measure to changes in nutrients

. This analysis was used to determine which endpoints were most critical to determine protective nutrient concentrations. E ndpoint s that were found to be insensitive to changes in nutrient concentrations in a particular estuar ine system were not considered further in deriving numeric nutrient criteria for a system

. Numeric nutrient criteria for each system were based on the m odeled scenario in which the remaining endpoint measures were met during the modeled period , calculated as annual geometric means for each year during the modeled period . Criteria were calculated using the 90 th percentile of the annual geometric mean s from the modeled years for the model scenario meeting all appropriate endpoints. EPA selected the 90 th percentile to account for natural variability in the data to represent the upper bound of conditions supporting designated uses

. ThePage 99 of 221 selection of the 90 th pe rcentile is appropriate for the same reasons as when using the reference condition approach. For further information on the use of the mechanistic modeling approach, see the TSD (Volume 1: Estuaries, Section 1.4.1 ).

d ) Request for Comment on Analytical Me thodologies EPA believes that the three proposed analytical methodologies used in combination result in numeric nutrient criteria that are supportive of balanced natural populations of aquatic flora and fauna, and thus protect Class II and III estuarine an d coastal waters in the State of Florida from nutrient pollution. These analytical methodologies utilized the latest scientific knowledge, nutrient sensitive endpoints, and the best available data. The Agency requests comment on the application of the prop osed methodologies and whether these methodologies are appropriate to derive criteria protective of designated uses in Florida's estuaries and coastal waters. Specifically, EPA is soliciting comment and any scientific information on the use of these approaches in areas where there may be other factors present in addition to nutrie nts that may also affect the three biological endpoints by attenuating light in similar ways as chlorophyll a (e.g., colored dissolved organic matter (CDOM) or suspended sediments). EPA is also requesting comment on the procedures used to screen data to id entify reference conditions that are supporting balance d natural populations of aquatic flora and fauna.

B. Proposed Numeric Criteria for Estuaries 1. IntroductionPage 100 of 221 EPA is proposing to use a system

- specific approach to derive numeric nutrient criteria for estuaries to ensure that the unique physical, chemical, and biological characteristics of each estuarine ecosystem are taken into consideration

. 199 2. Proposed Numeric Criteria (Estuaries) EPA is proposing numeric TN, TP, and chlorophyll a criteria for 89 discrete segments within 19 estuarine systems in Florida (Table III. B

- 1). These include Class II and III waters under Florida law (Section 62

- 302.400, F.A.C.); EPA did not find any Class I estuarine waters in Florida . The 19 estuaries include seven systems in the Florida
P anhandle region, four systems in the Big Bend region, and eight systems along the Atlantic coast. Maps showing the locations of these estuari ne systems and EPA’s proposed within

- estuary segments are provided in the TSD (Volume 1: Estuaries , Section
1 .3 and Section 2). In some areas a gap may exist between maps used by Florida and EPA to show where criteria apply. In areas where a gap exists between EPA's proposed criteria and Florida's numeric criteria, EPA proposes that Florida's numeric criteria from the adjacent estuary or marine segment apply (see Section 62

- 302.532, F.A.C. for values). EPA proposes that Florida's criteria from the northernmost segment of Clearwater Harbor/St Joseph Sound (Subsection 62

- 302.532(a)1., F.A.C.) apply to th e waters between that segment and the southernmost segment of EPA's Springs Coast estuary system. EPA
proposes that Florida’s numeric criteria from the northernmost segment of Biscayne Bay

199 USEPA. 2001. Nutrient Criteria Technical Manual: Estuarine and Coastal Marine Waters . EPA

- 822

- B

- 01

- 003. U.S. Environmental Protection Agency, Office of Water, Washington, DC. Glibert, P.M. ,C.J

. Madden, W. Boynton, D. Flemer, C. Heil, and J. Sharp , eds. 2010. Nutrients in Estuaries: A Summary Report of the National Estuarine Experts Workgroup, 2005

– 2007 . Report to U.S. Environmental Protection Agency, Office of Water, Washington DC.Page 101 of 221 (Subsection 62

- 302.532(h)5., F.A.C.) apply to the waters of the int ercoastal waterway between that segment and the southernmost segment of EPA’s Lake Worth Lagoon estuary system. In other areas a gap may exist within estuaries covered by Florida's numeric criteria. In these areas, EPA proposes that Florida's criteria f rom the adjacent estuary or marine segment to the south apply to that gap. EPA proposes that Florida's criteria from (1) the upper Lemon Bay segment (Subsection 62

- 302.532(d)2., F.A.C.) apply to the segment between the upper Lemon Bay segment and the Dona/ Roberts Bay segment (Subsection 62

- 302.532(d)1., F.A.C.), (2) the Tidal Cocohatchee River segment (Subsection 62

- 302.532(e)1., F.A.C.) apply to the waters between the Tidal Cocohatchee River segment and the Estero Bay segment (Subsection 62

- 302.532(d)9., F .A.C.), (3) the Clam Bay segment (Subsection 62

- 302.532(j)., F.A.C.) apply between the Clam Bay segment and the Tidal Cocohatchee River segment (Subsection 62

- 302.532(e)1., F.A.C.), and (4) the Naples Bay segment (Subsection 62

- 302.532(e)4., F.A.C.) apply to the segment between the Naples Bay segment and the Clam Bay Segment (Subsection 62

- 302.532(j)., F.A.C.). For further information regarding the derivation and protectiveness of Florida’s criteria, see http://water.epa.gov/lawsregs/rulesregs/florida_index .cfm

.

Table III. B

- 1. EPA’s P roposed N umeric C riteria for Florida’s E stuaries (in geographic order from northwest to northeast) Proposed Criteria

Perdido Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Upper Perdido Bay 0101 0.59 0.042 5.2 Big Lagoon 0102 0.26 0.019 4.9 Central Perdido Bay 0103 0.47 0.031 5.8Page 102 of 221 Lower Perdido Bay 0104 0.34 0.023 5.8

Pensacola Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Blackwater Bay 0201 0.5 3 0.022 3.9 Upper Escambia Bay 0202 0.43 0.025 3.7 East Bay 0203 0.50 0.021 4.2 Santa Rosa Sound 0204 0.3 4 0.018 4.1 Lower Escambia Bay 0205 0.4 4 0.02 3 4.0 Upper Pensacola Bay 0206 0.40 0.021 3.9 Lower Pensacola Bay 0207 0.34 0.020 3.6 Santa Rosa Sound 0208 0.33 0.020 3.9 Santa Rosa Sound 0209 0.36 0.020 4.9

Choctawhatchee Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Eastern Choctawhatchee Bay 0301 0. 47 0.0 2 5 8 .1 Central Choctawhatchee Bay 0302 0. 36 0.01 9 3.8
Western Choctawhatchee Bay 0303 0. 2 1 0.01 2 2.4

St. Andrews Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) East Bay 0401 0.31 0.014 4.6 St. Andrews Sound 0402 0.14 0.009 2.3 Eastern St. Andrews Bay 0403 0.24 0.021 3.9 Western St. Andrews Bay 0404 0.19 0.016 3.1 Southern St. Andrews Bay 0405 0.15 0.013 2.6 North Bay 1 0406 0.22 0.012 3.7 North Bay 2 0407 0.22 0.014 3.7 North Bay 3 0408 0.21 0.016 3.4 West Bay 0409 0.23 0.022 3.8 St. Joseph Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) St. Joseph Bay 0501 0. 25 0.0 18 3. 8Page 103 of 221 Apalachicola Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) St. George Sound 0601 0.53 0.019 3.6 Apalachicola Bay 0602 0.51 0.019 2.7 East Bay 0603 0.76 0.034 1.7 St. Vincent Sound 0605 0.52 0.016 11.9 Apalachicola Offshore 0606 0.30 0.008 2.3
Alligator Harbor SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Alligator Harbor 0701 0.36 0.011 2.8 Alligator Offshore 0702 0.33 0.009 3.1 Alligator Offshore 0703 0.33 0.009 2.9

Ochlockonee Bay + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Ochlockonee

- St. Marks Offshore 0825 0.79 0.033 2.7 Ochlockonee Offshore 0829 0.47 0.019 1.9 Ochlockonee Bay 0830 0.66 0.037 1.8 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) St. Marks River Offshore 0827 0.51 0.022 1.7 St. Marks River 0828 0.55 0.030 1.2

Big Bend/ Apalachee Bay + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Econfina Offshore 0824 0.59 0.028 4.6 Econfina 0832 0.55 0.032 4.4 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Fenholloway 0822 1.15 0.44 4 1.9 Fenholloway Offshore 0823 0.48 0.034 10.3
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Steinhatchee

Fenholloway Offshore 0821 0.40 0.023 4.1

SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Steinhatchee River 0819 0.67 0.077 1.0 Steinhatchee 0820 0.34 0.018 3.5Page 104 of 221 Offshore SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Steinhatchee Offshore 0818 0.39 0.032 4.8
Suwannee River + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Suwannee Offshore 0817 0.78 0.0 49 5.2

Springs Coast + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Waccasassa River Offshore 0814 0.38 0.019 3.9 Cedar Keys 0815 0.32 0.019 4.1 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Crystal River 0812 0.35 0.013 1.3 Crystal

- Homosassa Offshore 0813 0.36 0.013 2.1 Homosassa River 0833 0.47 0.032 1.9 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (ug/L) Chassahowitzka River 0810 0.32 0.010 0.7 Chassahowitzka River Offshore 0811 0.29 0.0 09 1.7
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Weeki Wachee River 0808 0.32 0.010 1.6 Weeki Wachee Offshore 0809 0.30 0.009 2.1
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Pithlachascotee River 0806 0.50 0.022 2.4 Pithlachascotee Offshore 0807 0.32 0.011 2.5
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Anclote River 0804 0.48 0.037 4.7 Anclote Offshore 0805 0.31 0.011 3.2Page 105 of 221 Anclote Offshore South 0803 0.29 0.008 2.6

Clearwater Harbor/ St. Joseph Sound SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) See Section 62

- 302.532(1)(a) F.A.C.

Tampa Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L)

See Section 62

- 302.532(1)(b) F.A.C.

Sarasota Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L)

See Section 62

- 302.532(1)(c) F.A.C.

Charlotte Harbor /Lemon Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L)

See Section 62

- 302.532(1)(d) F.A.C.

Lake Worth Lagoon / Loxahatchee SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) North Lake Worth Lagoon 1201 0.55 0.067 4.7 Central Lake Worth Lagoon 1202 0.57 0.089 5.3 South Lake Worth Lagoon 1203 0.48 0.034 3.6
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower Loxahatchee 1301 0. 68 0.0 28 2. 7 Middle Loxahatchee 1302 0. 98 0.0 44 3. 9 Upper Loxahatchee 1303 1. 25 0.0 72 3.6
St. Lucie SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower St. Lucie 1401 0.58 0.045 5.3Page 106 of 221 Middle St. Lucie 1402 0.90 0.12 0 8.4 Upper St. Lucie 1403 1.22 0.197 8.9

Indian River Lagoon SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Mosquito Lagoon 1501 1.1 8 0.0 78 7.5 Banana River 150 2 1.17 0.0 36 5.7 Upper Indian River Lagoon 150 3 1.63 0.0 74 9.2 Upper Central Indian River Lagoon 150 4 1.33 0. 0 76 9.2 Lower Central Indian River Lagoon 150 5 1. 12 0. 117 8.7 Lower Indian River Lagoon 150 6 0.49 0.0 37 4.0

Halifax River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Upper Halifax River 1601 0.75 0. 243 9.4 Lower Halifax River 1602 0. 63 0. 167 9. 6 Guana, Tolomato, Matanzas, Pellicer SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Upper GTMP 1701 0. 77 0. 144 9.5 Lower GTMP 1702 0.53 0.108 6.1

Lower St. Johns River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower St. Johns River 1801 0.75 0.095 2.5 Trout River 1802 1.09 0.108 3.6 Trout River 1803 1.15 0.074 7.7

Nassau River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower Nassau 1901 0.33 0.113 3.2 Middle Nassau 1902 0.40 0.120 2.4 Upper Nassau 1903 0.75 0.125 3.4

St. Marys River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower St. Marys River 2002 0.27 0.045 3.0 Middle St. Marys River 2003 0.44 0.036 2.7Page 107 of 221 1 Chlorophyll a is defined as corrected chlorophyll, or the concentration of chlorophyll a remaining after the chlorophyll degradation product, phaeophytin a , has been subtracted from the uncorrected chlorophyll a measurement. * For a given water body, the annual geometric mean of TN, TP , or chlorophyll a , concentrations shall not exceed the applicable criterion concentration more than once in a three

- year period. + In the se four areas (collectively referred to as the “ Big Bend region ”) , coastal and estuar ine waters a re combined . Criteria for the Big Bend region apply to the coastal and estuar ine waters in that region.
a) Summary of Approaches (Estuaries) 1) Proposed Approach (Estuaries)
I n estuaries where sufficient monitoring data were available to statistically quantify relationships between TN, TP, chlorophyll a , and biological endpoints , and the endpoints available to derive criteria were shown to be sufficiently sensitive ( i.e., Choctawhatchee Bay; St. Joseph Bay; Suwannee River; Indian River Lagoon; Halifax River; and the Guana, Tolomato, Matanzas, and Pellicer (GTMP) estuarine system ), statist ical models were used to derive the proposed numeric nutrient criteria. In three of the estuaries, Choctawhatchee Bay, St. Joseph Bay, and Indian River Lagoon, there were sufficient available data for water clarity associated with historic depth of seagrasses, and chlorophyll a concentrations associated with balanced phytoplankton biomass ta rgets , and these biological endpoints were sensitive to changes in nutrients in most segments , so proposed criteria were derived that were protective of these endpoints. In the Suwannee River , the water clarity endpoint was not sensitive to changes in nutr ients , so proposed criteria were derived that were protective of the chlorophyll a target associated with balanced phytoplankton biomass. In the Halifax River and GTMP , seagrass has not been historically present , so the proposed criteria were derived that a we re protective of the chlorophyll a target associated with balanced phytoplankton biomass. In all other estuaries mechanistic models were used to quantify the relationship between nutrient loads and biological endpoints . EPA then used the models to derive Comment [E34]: OMB edit accepted.Page 108 of 221 proposed numeric nutrient criteria that protect the endpoints

. For each estuary , the endpoints that were shown to be sufficiently sensitive to nutrient changes above non

anthropogenic nutrient levels were used, as described i n Section III.A. 3.c

. The endpoints for each of the estuaries where mechanistic models were used to derive criteria are noted in the following discussion

. In Perdido Bay , Apalachicola Bay , three segments in Lake Worth Lagoon/Loxahatchee (Lake Worth Lagoon, segments 1201, 1202, and 1203) , and St. Lucie , all three biological endpoints were found to be sensitive to c hanges to nutrients, and so proposed criteria were derived that were protective of historic depth of seagrass es (water clarity), chlorophyll a con centrations associated with balanced phytoplankton biomass, and dissolved oxygen concentrations sufficient to maintain aquatic life. In St. Andrews Bay , 2 segments in the Springs Coast ( Anclote River/Anclote Offshore , s egments 0804 and 0805) and 3 segments in Lake Worth Lagoon/Loxahatchee ( Lower, Middle , and Upper Loxahatchee , segments 1301, 1302, and 1303) , dissolved oxygen concentration s were found to be insensitive to changes in nutrients

. Proposed criteria were derived that were protective of historic d epth of seagrasses ( w ater clarity ) and chlorophyll a concentrations associated with balanced phytoplankton biomass.
In Pensacola Bay , 3 segments in Ochlockonee Bay (Ochlockonee

- St. Marks Offshore/Ochlockonee Offshore /Ochlockonee Bay , segments 0825, 0829, and 0830 ), and 4 segments in Big Bend /Apalachee Bay ( Econfina/Econfina Offshore , segments 0824, 0832; Steinhatchee

- Fenholloway Offshore, segment 0821; Steinhatchee Offshore , segment 0818 ), and 1 segment in Springs Coast (Anclote Offshore South, segment 080 3) , water clarity was found to be inse nsitive to changes in nutrients. I n Alligator Harbor andPage 109 of 221 2 segments in Springs Coast ( Waccasassa River Offshore /Cedar Keys , segments 0814, 0815) , there was not enough available information to derive seagrass depth targ ets. As a result, the proposed criteria were derived to be protective of water quality targets for chlorophyll a concentrations associated with balanced phytoplankton biomass and dissolved oxygen concentrations sufficient to maintain aquatic life.
In 2 s egments in Ochlockonee Bay (St. Marks Offshore /St. Marks River , segments 0827, 0828 ) , 2 segments in Big Bend /Apalachee Bay ( Steinhatc hee River/Steinhatchee Offshore, segments 0819, 0820) , and 2 segments in Springs Coast (Pithlachascotee River/ Pithlachascotee Offshore, segments 0806, 0807) , dissolved oxygen and water clarity were both found to be insensitive to changes in nutrients. In 2 segments in Big Bend /Apalachee Bay ( Fenholloway /Fenholloway Offshore , segments 0822, 0823) and 7 segments in Springs Coast ( Crystal River/ Crystal

- Homosassa Offshore /Homosassa River , segments 0812, 0813 , 0833 ; Chassahowitzka River/Chassahowitzka Offshore , segments 0810, 0811; and Weeki Wachee/Weeki Wachee Offshore, segments 0808, 0809) , dissolved oxygen was found to be insensitive to changes in nutrients and there was not enough available information to derive seagrass depth targets. In Nassau River and St. Marys River , dissolved oxygen was found to be insensitive to changes in nutrients and seagrass has not been h istorically present. For all of these estuaries , proposed criteria were derived that were protective of chlorophyll a concentrations associated with balanced p hytoplankton biomass. In the Lower St. Johns River , seagrass has not been historically present, so proposed criteria were derived that were protective of chlorophyll a associated with balanced phytoplankton biomass and dissolved oxygen concentrations sufficient toPage 110 of 221 maintain aquatic life. For this system, EPA used th e dissolved oxygen from the Site

Specific Alternative Criteria , developed by FDEP and adopted for the marine portion of the Lower St. Johns River , as an additional DO endpoint with which to derive the proposed criteria to support dissolved oxygen concentra tions sufficient to maintain aquatic life

. 200 This DO criterion, adopted as a water quality standard specific to this system, was used as an alternative target to the daily water column average DO concentration of 5.0 mg/L. EPA considered s everal alternati ve approaches for deriving estuarine numeric nutrient criteria, including approaches proposed by the St. Johns River Water Management District for estuaries within their jurisdiction ( Lower St. Johns River, Mosquito Lagoon, Tolomato

- Matanzas estuary, Halifax River estuary, Indian River Lagoon, and Banana River). While some of these approaches segment ed Florida’s estuaries differently than the segmentation approach EPA is proposing, all the alternative approaches used multiple biologi cal endpoints and analytical methods to determine the health of each system and derive criteria. EPA solicits comments on the alternative approaches described in more detail in the following section s . Additional details on these approaches are provided in the TSD (Volume 1: Estuaries, Section 2).
2 ) Alternative for St. Johns River Water Management District W aters The St. Johns River Water Management District (SJRWMD) submitted proposed approaches to EPA for several estuaries within their jurisdiction. These included the St. Johns River, Mosquito Lagoon, Tolomato

- Matanzas estuary, Halifax River estuary,

200 FDEP. 2006. Site Specific Alternative Dissolved Oxygen Criterion to Protect Aquatic Life in the Marine Portions of the Lower St. Johns River Technical Support Document. Appendix L In: FDEP. 2008. TMDL Report : Total Maximum Daily Lo ad for Nutrients for the Lower St. Johns River

. Florida Department of Environmental Protection , Tallahassee, FL

.Page 111 of 221 Indian River Lagoon, and Banana River. In general, SJRWMD proposed a weight of evidence approach employing several analytical techniques to derive numeric nut rient criteria for each of the systems. The following paragraphs outline the methods proposed for each of these systems. The SJRWMD has proposed the use of the values for TN, TP, and chlorophyll a for the Lower St. Johns River (LSJR) that have already been developed as part of an existing TMDL to support designated uses in the river. The LSJR is defined as the main stem segments of the river between the juncture with the Ocklawaha River and the river mouth at Mayport, with the marine portion occurring betwe en Julington Creek and the mouth. A SSAC was developed for DO in the marine portion of the river. It was approved by EPA in 2006 and is in effect as a WQS. The TMDL contains TN and TP protective loads in the freshwater portion of the LSJR and a TN protective load in the saline portion of the LSJR . These loads are set at a level necessary to achieve the marine DO SSAC and protect the statewide standard for DO in the freshwater section. The TMDL also contains a water quality target for chlorophyll a t hat is intended to implement the State’s narrative nutrient criterion. Similar to the modeling approach proposed by EPA for Florida estuaries, TN, TP, and chlorophyll a criteria were derived for the LSJR using linked watershed, hydrodynamic, and water qu ality models. Non

- point nutrient inputs from the watershed to the river were determined for each sub

- basin in the LSJR using the Pollutant Load Screen ing Model (PLSM), estimates of atmospheric deposition, and estimates of loading from tributaries and upstr eam. Within the river, hydrodynamics were modeled using the Environmental Fluid Dynamics Code (EFDC) model and water quality processes werePage 112 of 221 modeled using the U.S. Army Corps of Engineers Quality Integrated Compartment Model (CE

- QUAL

- ICM), Version 2. The mo dels were calibrated for the period from January 1, 1995 to November 30, 1998. TMDL model scenarios were assessed on an annual basis to determine if chlorophyll a levels exceeded the chlorophyll a threshold of 40 μg/L less than 10% of the time that was set as the water quality target to prevent undesirable shifts in algal community composition. For Mosquito Lagoon, a suite of five approaches are considered to develop a weight of evidence by which numeric nutrient criteria can be developed. These approaches are based upon one of three relationships : 1) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), and the trophic state of a system; 2) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), the effects of p hytoplankton on light attenuation in the water column, and the light requirements of seagrasses; or 3) the connection between TP and harmful algal bloom (HAB) occurrence. The first and primary approach uses a reference period from 2004

- 2008 to calculate

an nual median and maximum wet season medians of chlorophyll a , TN, and TP. The reference time period was selected because the TN, TP, and chlorophyll a observed during that period were low, the rainfall amounts during that period were representative of typic al rainfall over time , and the Trophic State Index value for that time period was greater than 50, which is considered to be "good" (mesotrophy to oligo

- mesotrophy). The second approach draws upon an optical model linking chlorophyll a to previously estab lished light attenuation targets as a way to predict annual median chlorophyll a in southern Mosquito Lagoon that would be protective of seagrass and serve as a basis for criteria derivation. A third approach derives a TP level thatPage 113 of 221 corresponds to minimum "bloom" levels of the dinoflagellate Pyrodinium bahamense , the common HAB species seen primarily in the southern Lagoon. A fourth line of evidence applied to the Mosquito Lagoon is multivariate geometric mean function regression models relating TN and TP t o chlorophyll a on an annual basis and during the wet season. The final method is based on two general nutrient models

. 201 Targets for chlorophyll a are set based on the reference period mentioned earlier for the north and central segments and the optical model for the southern segments. The reference method is used to derive the TN, TP, and chlorophyll a criteria for the Mosquito Lagoon with the othe r four methods providing supporting evidence. Two criteria magnitudes for TN, TP, and chlorophyll a are presented; one an annual median value and the other a wet season (July

- September) median value. The approaches used for the Indian River Lagoon (IRL) a nd Banana River Lagoon (BRL) are similar to those used for Mosquito Lagoon. The approaches are based upon a weight of evidence relying on two general ecological relationships: 1) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), and the trophic state of a system; and 2) the link between nutrients, phytoplankton growth (as shown by chlorophyll a ), the effects of phytoplankton on light attenuation in the water column, the light requirements of seagrasses, and the previously establi shed depth limit for seagrasses. The influence of TP on HAB events is also discussed as an ancillary line of evidence. As a first line of evidence loading limits are derived based on analyses done for TMDLs in 2009. The loading limits were established usin g regression models that regress

201 Steward, J.S., and E.F. Lowe. 2010. General empirical models for estimating nutrient load limits for Florida’s estuaries and inland waters. Limnology and Oceanography 55(1):433

- 445. Dettmann, E.H

. 2001. Effect of water residence time on annual export and denitrification of nitrogen in estuaries: A model analysis. Estuaries 24 (4): 481

- 490.Page 114 of 221 seagrass depth limit targets against loading of TN and TP. 202 The second method used annual medians of data from reference segments that meet desired depth thresholds established by the TMDL analyses. The third approach relie s upon an optical model similar to the one described earlier for the Mosquito Lagoon using data from 1996

- 2007. A model was built for each of the sub

- lagoons: the BRL, North IRL, and Central IRL (divided into Sebastian and South Central reaches). An optica l model is in development for the North Central reach. The fourth approach also applies two general models to data specific to the IRL and BRL. 203 Where the Dettmann (2001) model could not be used to predict TN concentrations, a TN:TP ratio for the given sub lagoon wa s applied to the TP limit to calculate TN limits. The fifth approach relies upon the relationship between HAB occurrence and TP concentrations. Targets for chlorophyll a are presented as a range of values established using the optical model approa ch and the reference segment approach. Proposed TN and TP loading criteria are based on the loading limits established using the TMDL analyses. Primary proposed TN and TP criteria concentrations are calculated based on the reference segment method. Alterna te criteria are proposed using a convergence of the concentrations calculated by the reference segment method and general models. Two criteria magnitudes are proposed, one for an annual median and the other for a wet season (June

- October) monthly maximum. The SJRWMD proposed criteria for the Tolomato and Matanzas Estuary (TME) using a weight of evidence approach and methods similar to those used in the other

202 Steward J.S., R.V. Virnstein, L.J. Morris, and E.F. Lo we. 2005. Setting Seagrass Depth, Coverage, and Light targets for the Indian River Lagoon system, Florida. Estuaries 6 : 923

- 935. 203 Steward, J.S., and E.F. Lowe. 2010. General empirical models for estimating nutrient load limits for Florida’s estuaries and i nland waters. Limnology and Oceanography 55(1):433

- 445. Dettmann, E. H

. 2001. Effect of water residence time on annual export and denitrification of nitrogen in estuaries: A model analysis. Estuaries 24 : 481

- 490.Page 115 of 221 estuaries. TN and TP concentrations and chlorophyll a target concentrations are based on an approach that analyzes water quality and estimated current loading during a reference period from 2000

- 2009. The period of reference was selected based on a desirable TSI score (<50), rainfall amounts typical of average conditions, and completeness of the data

rec ord. Criteria magnitudes are proposed as an annual median or mean and a maximum wet season (June

- September) median or mean. The reference period approach of criteria derivation for the TME is supported by an additional line of evidence using regression

ana lyses of chlorophyll a versus TN and TP. Target chlorophyll a values are based on the reference period analyses. The general nutrient models of Steward and Lowe (2010) and Dettmann (2001) are also used as an additional method by which to estimate loading
l imits and concentrations associated with those limits. The SJRWMD also derived proposed criteria for the Halifax River Estuary. SJRWMD derived criteria using three methods. The first is a reference condition based on the period from 2000

- 2008. This period is selected because of the low TN levels compared to the previous decade, the low chlorophyll a concentrations which are consistent with chlorophyll a targets established for other estuaries throughout the State, and the "good" trophic status shown by TSI values less than 50. Concentrations are calculated using annual median concentrations and maximum wet

- season median concentrations (as the highest monthly values from July

- September) of TN, TP, and chlorophyll a . Simple linear regressions are used as a sec ond line of evidence to calculate TN and TP criteria based on chlorophyll a targets established by the reference period calculations. The general nutrient models of Steward and Lowe (2010) and Dettmann (2001) are used as a final method by which to estimate loading limits and concentrationsPage 116 of 221 associated with those limits. Proposed loading and concentration criteria for the North Halifax River Estuary are based on the loading and concentration estimates of the general nutrient models, with estimates of loadings from wastewater treatment facilities in the estuary removed to represent reference conditions . The current estimated concentrations (ca. 2004) of TN and TP based on the reference approach are proposed as criteria for the South Halifax River Estuary. Targe t chlorophyll a values for both segments are calculated using the reference period approach. EPA is also considering the use of approaches outlined in Steward et al. (2005) to derive criteria in Indian River Lagoon. In particular EPA is considering using t he depth of colonization within reference segments as “upper restoration depths” and the highest value observed for a specific segment as a minimum target for that segment. For more information regarding the derivation of these criteria, please see the TSD (Volume 1: Estuaries, Section s 2.18.9 (Indian River Lagoon), 2.19.9 (Halifax River), 2.20.9 (GTMP), and 2.21.9 (St Johns River)). 3 ) Request for Comment on Proposed and Alternative Approaches EPA believes that the proposed approach for each estuarine sys tem is appropriate, scientifically defensible, and results in numeric nutrient criteria that protect the State’s designated uses to ensure that nutrient concentrations of a body of water support b alance d natural populations of aquatic flora and fauna

. EPA requests comment on this system

specific approach and the resulting numeric nutrient criteria . EPA also solicits additional available scientific information that can be used to derive numeric nutrient criteria to provide protection of fish consumption, recreation , and the propagation and maintenancePage 117 of 221 of a healthy, well

- balanced population of fish and wildlife and protect Florida’s Class II and III estuarine waters from nitrogen and phosphorus pollution

. In addition, EPA requests comment on the alternat iv e approaches developed by the St. Johns River Water Management District for waters under their jurisdiction. Specifically, EPA requests comment on the scientific defensibility of these approaches , as well as whether application of these approaches will result in numeric nutrient criteria that will protect Class II and III estuarine waters in the State of Florida. EPA also requests comment on promulgating the alternative criteria in lieu of EPA’s proposed criteria. b) Proposed Criteria Duration and Freque ncy (Estuaries) Aquatic life water quality criteria include magnitude, duration , and frequency components. For EPA’s proposed TN, TP , and chlorophyll a criteria for estuarine waters, the criterion

- magnitude values (expressed as concentration s ) are provided in Table III. B

1, the criterion

- duration (or averaging period) is specified as annual, and the criterion

frequency is specified as a no - more - than

- once - in

– three

- years excursion frequency of the annual geometric mean . EPA is proposing a criteria

- du ration of one year, in which sampled nutrient concentrations are summarized as annual geometric means to be consistent with the data set used to derive these criteria, which relied on either annual
average nutrient concentrations or annual nutrient loading to the water body. EPA ’s proposed excursion frequency of no

- more - than

- once - every - three

- years is intended to minimize negative effects on designated uses as it will allow water bodies enough time to recover from occasionally elevated levels of nitrogen and phosphorus concentrations. 204

204 Boynton, W.R., J.D. Hagy, L. Murray, C. Stokes, and W.M. Kemp. 1996. A comparative analysis ofPage 118 of 221 These duration and frequency components of the criteria are identical to those finalized in EPA’s rule for Florida’s lakes and flowing waters (40 CFR section 131.43), which will add consistency to the implementation of these cr iteria with those established in the previous rulemaking for upstream waters

. Finally , the 3

- year evaluation period provides a sufficient representation of average water body characteristics in the majority of cases, because it balances both short

- term and long

- term variation, while not imposing undue monitoring expectations. EPA requests comment on the frequency and duration components of these criteria and whether the three components of the criteria (magnitude, duration , and frequency) taken in combination will ensure protection of the designated uses of these waters. c) Proposed DPVs (Estuaries) EPA is proposing a procedure to establish numeric TN and TP criteria for strea ms in Florida to protect the downstream estuarine water bodies that ultimately receive nitrogen and phosphorus pollution from these streams . These numeric nutrient criteria, which EPA refers to as Downstream Protection Values, or DPVs, would apply at each
stream’s point of entry into the downstream water, referred to as the pour point. However, as explained more fully in Section I.A, EPA does not intend to finalize these DPVs if the district court modifies the Consent Decree consistent with EPA’s amended de termination that numeric DPVs are not necessary to meet CWA requirements in Florida. EPA selected the pour point as the location to apply DPVs because the downstream waters respond to the nutrient input s from the pour point , and all contributions from the network of flowing waters above this point affect the water quality

eutrophication patterns in a temperate coastal lagoon. Estuaries 19(2B):408

- 421.Page 119 of 221 at the pour point. If the DPV is not attained at the point of entry into the estuary, then the collective set of streams in the upstream watershed does not attain the DPV, for purposes of CWA section 303(d). The Agency is proposing a hierarchical procedure that includes four approaches for setting TN and TP DPVs . EPA ’s intention in proposing the four approaches is to provide a range of methods for the State to deriv e TN and TP DPVs that reflect the data and scientific information available. Water quality modeling is the most rigorous and most data

- demanding method , and will generally result in the most refined DPVs. Water quality mo deling is EPA’s preferred method for establishing DPVs and is listed first in the hierarchy. It is followed by less rigorous methods that are also less data

- demanding. Using a procedure from a lower tier of the hierarchy requires less data, but also generally results in more stringent DPVs t o account for the uncertainties associated with these less refined procedures. The methods available to derive DPVs should be considered in the following order: 1. Water quality simulation models to derive TN and TP values , 2. Reference condition approach based on TN and TP concentrations at the stream pour point, coincident in time with the data record from which the downstream receiving estuary segment TN and TP criteria were developed using the same data quality screens and reference condition approach , 3. Dilut ion models based on the relationship between salinity and nutrient concentration in the receiving segment , andPage 120 of 221 4. The TN and TP criteria from the receiving estuary segment to which the freshwater stream discharges , in cases where data are too limited to apply the first three approaches.
All four approaches are briefly described in the following discussion . A more detailed description of the approaches, as well as the TN and TP DPV s that result from using each of the approaches, is provided in the technical support document (Volume 1: Estuaries, Section 1.6)

. EPA believes that the first approach, the use of water quality simulation models, is the most refined method to define a DPV at the stream’s pour point that will support balanced natura l populations of aquatic flora and fauna in the downstream estuary. This approach may be appropriate when water quality simulation models are available , such as in the estuarine systems where mechanistic models were used to derive criteria

. T he modeled nut rient loads entering the estuaries that result in attainment of the biological endpoints within the estuaries can be used to derive DPVs by computing the annual geometric mean TN and TP concentrations that correspond with the modeled loads at the pour poin t of each stream for each of the years 2002 through 2009. Because EPA used coupled watershed and estuarine models to establish the estuary criteria (in some locations) , EPA is confident that the watershed modeling provides concentrations that are protectiv e of corresponding estuarine biological endpoints

. Therefore EPA select ed the 90 th percentile from the distribution of annual geometric means of modeled loads as the
DPV to be consistent with the use of the 90 th percentile used to derive the criteria protective of the estuar y using the mechanistic models (Volume 1: Estuaries, Section 1.6)

.Page 121 of 221 EPA is proposing the second DPV approach, a reference condition approach, for estuarine systems where water quality simulation models are not available , an d where a reference condition approach is used to derive estuary TN, TP , and chlorophyll a criteria

. Since the downstream estuary is supporting balanced natural populations of aquatic flora and fauna during the reference condition period , the nutrient load s passing through the pour points into the estuary during that same period should be protective of the estuary. Therefore , EPA believes it would be appropriate in these cases to derive reference condition

- based DPVs using water quality data at the pour point of the freshwater streams, coincident in time with the data record f rom which EPA derived the downstream estuary segment TN and TP criteria. EPA proposes that the same data screens and reference condition approach be applied to the pour point data as were applied to the estuary data when deriving DPVs using this approach. This will prevent deriving a DPV using upstream water quality data that coincided with a documented downstream impact (e.g., CWA section 303(d) listing for nutrients in the estuary s egment) and ensure mathematical consistency between the DPVs and estuarine criteria

. EPA is proposing the third DPV approach for estuarine systems where water quality simu lation models are not available

. For example, this approach may be appropriate in th e Indian River Lagoon, the Halifax River , and the GTMP estuarine systems w h ere EPA used statistical models to derive the criteria protective of the estuary. In these areas, EPA believes it would be appropriate to derive DPVs using dilution models based on the relationship between salinity and nutrient concentration. The

c oncept is that the tidal mixing or dilution can be estimated from the estuarine salinity. By plotting observed estuarine TN or TP versus the estuarine salinity and fitting a linearPage 122 of 2 21 regress ion , the TN or TP at various levels of salinity can be determined. This regression model can then be used to determine the TN or TP concentration at the pour point that will ensure attainment and maintenance of the estuarine numeric nutrient criteria

conce ntration. The TN and TP DPV for the inflowing canal or stream can be determined from the point on the regression line having the same salinity as the pour point, which is by definition 2.7 psu.
EPA ’s fourth proposed approach for establishing DPVs is to apply the downstream receiving estuary segment TN and TP criteria as shown in Table III.B

- 1 to the pour point as the DPVs. This is the simplest approach and may be appropriate where data are too limited to apply the first three approaches

. As noted in Tab le III.B

- 1, Florida derived numeric nutrient criteria for Clearwater Harbor, Tampa Bay, Sarasota Bay, and Charlotte Harbor estuaries that can be found in Section 62

- 302.532(a)

- (d), F.A.C. Therefore, the applicable DPV s for those four estuaries would be Flo rida’s estuary criteria in Section 62

- 302.532(a)

- (d), F.A.C. if using this fourth proposed approach for establishing DPVs. EPA believes the proposed approaches for deriving DPVs establish a decision

making framework that is binding, clear, pr edictable, an d transparent

. T herefore , EPA is proposing that DPVs derived using these approaches do not require EPA approval under Clean Water Act section 303(c) to take effect. 205 A DPV calculated under options 2, 3, and 4 may be more stringent than a DPV calculated usi ng a water quality model. These alternative options are intended to ensure that water quality standards are not only restored when found to be impaired, but are maintained when found to be attained,

205 65 FR 24641, 24648 (April 27, 2000).Page 123 of 221 consistent with the CWA. Higher levels of TN and/or TP ma y be allowed in watersheds where it is demonstrated that such higher levels will fully protect the estuary’s WQS. To the extent that it is determined that the alternative option DPVs for a given estuary are

over - protective, applying a water quality model a s set out in EPA’s option 1 would result in a more refined definition of the DPV for that estuary.
EPA believes that these proposed approaches to establish DPVs are appropriate, scientifically defensible, and result in numeric values that will ensure the attainment and maintenance of the downstream estuarine criteria. EPA requests comment on the se approaches. EPA also requests comment on the alternative approach of fi nalizing the numeric TN and TP DPVs that EPA calculated using these approaches (as provided in Volume 1: Estuaries, Section 1.6 of the technical support document) in place of the proposed approaches. Finally, EPA solicits additional available scientific in formation that can be used to ensure attainment and maintenance of the downstream estuarine criteria

. Commenters who submitted comments or scientific information related to DPVs for estuaries during the public comment period for EPA’s proposed inland water s rule ( 75
FR 4173 ) should reconsider their previous comments in light of the new information presented in this proposal and must re

- submit their comments during the public comment period for this rulemaking to receive EPA response. d) Proposed Approach a nd Criteria for Tidal Creeks Tidal creeks are relatively small coastal tributaries that lie at the transition zone between terrestrial uplands and the open estuary. They are small sub

- estuaries that exhibit a wide range of salinities typical of larger estu aries, but on a smaller scale. T idal creeks are important spawning and nursery areas for aquatic life in adjacent estuary and coastalPage 124 of 221 systems. They typically receive freshwater flow from streams and groundwater, similar to estuaries, but have less develope d drainage systems. Alternatively, some t idal creeks are dominated by mangroves and other wetland vegetation with no freshwater stream inputs, and serve as conduits for tidal water to enter and leave wetland areas. Water quality and biological conditions are different in tidal creeks compared to estuarine syste ms due to relatively small drainage areas, narrow stream channels, shallow depths, and the influence of adjacent marsh and mangrove habitats.
EPA reviewed the available scientific information and has determined that there

are insufficient data and researc h at this time to develop separate numeric nutrient criteria specifically for tidal creeks. EPA , therefore , proposes to apply the TN and TP criteria developed for either the adjacent freshwater or estuarine segments to each tidal creek in Florida, dependin g on the tidal creek’s salinity levels . If the mean chloride concentration of the tidal creek is < 1,500 mg/L, EPA proposes to apply the TN and TP criteria from the adjacent freshwater segment (as defined in 40 CFR 131.43)

. 206 If the mean chloride
concentrat ion of the tidal creek is > 1,500 mg/L, EPA proposes to apply the chlorophyll

a , TN , and TP criteria from the adjacent estuary segment (as defined in Section III.B of this proposed rulemaking). Alternatively, EPA requests comment on applying the more strin gent of the two sets of criteria, freshwater or estuarine, to tidal creeks with varying salinity levels. For more information please see the TSD (Volume 1: Estuaries, Section 3.1)

.

206 EPA did not establish chlorophyll a criteria for freshwater streams due to lack of available approaches to interpret existing data to infer scientifically supported thresholds for these nutrient

- specific response variables in Florida streams.Page 125 of 221 As a second alternative option, EPA could use the mean salinities for each tidal creek to interpolate TN and TP concentrations between freshwater and estuarine criteria from adjacent freshwater and estuarine segments. TN and TP vary predictably along a salinity gradient, allowing for this interpolation where salinity data are available . The calculation EPA could use for this interpolation is provided in the TSD (Volume 1: Estuaries, Section 3.1).
EPA believes that the proposed approach for tidal creeks is appropriate, scientifically defensible, and results in numeric nutrient criteria that protect the State’s designated uses and ensure that nutrient concentrations of a body of water support balanced natural populations of aquatic flora and fauna. EPA request s comment on the proposed option and the alternative . EPA also requests additional available scientific information that can be use d to provide protection for fish consumption, recreation, and the propagation and maintenance of a healthy, well

- balanced population of fish and wildlife to protect Florida’s tidal creeks from nit rogen and phosphorus pollution. e) Proposed Approach and Criteria for Marine Lakes Marine lakes are coastal lakes and ponds with groundwater or intermittent surface water connections to marine water. They do not have a permanent surface connection to
t idal waters. They are small and shallow, and generally round or elliptical in shape , as they were formed from depressions that became isolated from marine waters by sand and dune formation. Some marine lakes are stratified by a salinity gradient where a fr eshwater layer at the surface is separated from a denser saline layer below. Similar to inland lakes, marine lakes in Florida are generally oligotrophic under undisturbed conditions with low nitrogen and phosphorus concentrations and low productivity. Thei rPage 126 of 221 oligotrophic nature and stratification make them susceptible to the adverse effects of nitrogen and phosphorus pollution . EPA analyzed the data from over 50 marine lakes in Florida and found that chlorophyll a responded to TN and TP in a similar fashion, based on color and alkalinity, as freshwater inland lakes. Details and supporting documentation are provided in the TSD (Volume 1: Estuaries, Section 3.2).
EPA is proposing to apply the criteria developed for freshwater inland lakes in EPA’s December 6, 2010 rulemaking for Florida’s lakes and flowing waters (40 CFR 131.43) to protect the designated uses in marine lakes since marine lakes have a similar trophic condition expectation and chlorophyll a response to nutrient concentrations. The criteria EPA proposes to apply to marine lakes are those found in 40 CFR 131.43 and replicated in Table III.B

- 2

. Table III.B

- 2

. EPA’s Proposed Numeric Criteria for Florida’s Marine Lakes Long Term Average Lake Colo r a and Alkalinity EPA Final Chl

- a b,*

μg/L EPA Final TN and TP Criteria [Range] TN mg/L TP mg/L Colored lakes c 20 1.27 [1.27

- 2.23] 0.05 [0.05

- 0.16] Clear lakes, high alkalinity d 20 1.05 [1.05

- 1.91] 0.03 [0.03

- 0.09] Clear lakes, low alkalinity e 6 0.51 [0.51

- 0.93] 0.01 [0.01

- 0.03]

a Platinum

- cobalt units (PCU) assessed as true color free from turbidity b Chl

- a is defined as corrected chlorophyll, or the concentration of chl

- a remaining after the chlorophyll degradation product, phaeophytin a, has been subtracted from the uncorrected chl

- a measurement. c Long

- term color > 40 PCU and alkalinity > 20 mg/L CaCO 3 d Long

- term color ≤ 40 PCU and alkalinity > 20 mg/L CaCO 3 e Long

- term color ≤ 40 PCU and alkalinity ≤ 20 mg/L CaCO 3 * For a water body , the annual geometric mean of chl

- a, TN or TP concentrations shall not exceed the applicable criterion concentration more than once in a three

- year period.Page 127 of 221 EPA believes that the proposed approach for marine lakes is appropriate, scientifically defensible , and results in numeric nutrient criteria that protect the State’s designated uses and ensure that nutrient concentrations of a body of water support balanced natural populations of aquatic flora and fauna. EPA requests comment on the proposed approach . E PA also solicits additional available scientific information that can be used to provide protection for fish consumption, recreation, and the propagation and maintenance of a healthy, well

- balanced population of fish and wildlife to protect Florida’s marin e lakes from nitrogen and phosphorus pollution

.

C. Proposed Numeric Criteria for Coastal Waters 1. Introduction EPA is defining c oastal waters in this proposed rulemaking as marine waters that start at the land margin and extend up to three nautical mile s from shore, with chloride concentrations greater than 1,500 mg/L, excluding estuaries. Unlike estuaries, which are typically highly influenced by freshwater flows and can be organized within boundaries, coastal waters are less confined, with open connections to ocean waters, and have localized influences from freshwater sources near the estuary/coastal boundary (i.e., estuary pass). EPA is proposing to derive chlorophyll a criteria for coastal waters using satellite remote sensing, where possible. This approach is possible for all coastal waters except those in the Big Bend Coastal region. I n the Big Bend Coastal region ( waters offshore of Apalachicola Bay, Alligator Harbor, Ochlockonee Bay, Big Bend/Apalachee Bay, Suwannee River, and Springs Coast ) , seagrass beds and CDOM export from riversPage 128 of 221 confound interpretation of satellite data and derivation of chl RS - a . EPA’s p roposed approach and criteria for the Big Bend Coastal region is discussed in S ection III.B.

2. Proposed Numeric Criteria (Coastal Wa ters) EPA is proposing numeric chlorophyll a criteria, as measured by r emotely sensed numeric chlorophyll a ( chl RS - a ) , for 7 1 segments in three coastal regions of Florida classified as Class III waters under Florida law (Section 62

- 302.400, F.A.C.). A map showing the locations of the coastal segments can be found in the TSD (Volume 2: Coastal Waters, Section 1.3). EPA’s proposed coastal criteria are listed in Table III.C

- 1.

Table III. C

- 1. EPA’s P roposed N umeric C riteria for Florida’s C oastal W aters
Coastal Region Coastal Segment + Approximate Location Chlorophyll RS - a 1 * (mg/m 3 )

Panhandle 1 Alabama border 2.41 2 Pensacola Bay Pass 2.57 3 1.44 4 1.16 5 1.06 6 1.04 7 1.14 8 Choctawhatchee Bay Pass 1.23 9 1.08 10 1.09 11 1.11 12 1.18 13 1.45 14 St. Andrew s Bay Pass 1.74 15 St. Joseph Bay Pass 2.75 16 2.39 17 Southeast St. Joseph Bay 3.47

West Florida Shelf 18 3.96 19 Tampa Bay Pass 4.45 20 3.37 21 3.25 22 2.95 23 2.79 24 2.98 25 3.24 26 Charlotte Harbor 4.55Page 129 of 221 27 4.22 28 3.67 29 4.16 30 5.7 0 31 4. 54 32 4 .0 3 33 Fort Myers 4.61

Atlantic Coast 34 Biscayne Bay 0.92 35 0.2 6 36 0.26 37 0.2 4 38 0.2 1 39 0.21 40 0.2 0 41 0.2 0 42 0.2 1 43 0.2 5 44 0. 57 45 St. Lucie Inlet 1.08 46 1. 42 47 1. 77 48 1. 55 49 1. 44 50 1. 53 51 1. 31 52 1. 40 53 1. 80 54 Canaveral Bight 2.73 55 2.33 56 2.28 57 2.06 58 1.92 59 1.76 60 1.72 61 2.04 62 1.92 63 1.86 64 1.95 65 2.41 66 2.76 67 2.8 0 68 3.45 69 Nassau Sound 3.69 70 3.78 71 Georgia border 4.22 1 Chlorophyll RS - a is remotely sensed calculation of chlorophyll a concentrations. * For a given water body, the annual geometric mean of the chlorophyll a concentration shall not exceed the applicable criterion concentration more than once in a three

- year period. + Please see TSD for location of Coastal Segments (Volume 2: Coastal Waters, Section 1.3 )

.Page 130 of 221 As discussed in Section III.A.1.b, EPA is not proposing TN and TP criteria for Florida’s coastal waters

.

a) Summary of Approaches 1) Proposed Approach (Coastal Waters) EPA conducted a comprehensive review of water body

- specific water quality and impairment information as detailed in Section III.A.3.a. EPA determined through this review that at most times, Florida coastal waters appear to be supporting balanced natural
p opulations of aquatic flora and fauna

. EPA removed data from criteria computations in the limited instances where the Agency found that coastal waters were listed on the State’s CWA section 303(d) list to e nsure the resulting dataset was representative of times and locations that the se water s w ere supporting balanced natural populations of aquatic flora and fauna. Therefore , EPA is proposing to use a reference condition approach using data collected from satellite remote sensing of chlorophyll a . To derive proposed criteria for coastal areas , EPA chose to use chl RS - a measurements from the SeaWiFS s atellite because it had the longest and earliest historical record

. 207 From the satellite measurements, screened to reflect conditions supportive of balanc ed natural populations of flora and fauna, EPA calculated criteria as the 90 th percentile of the annual geometric mean s of chl RS - a values over the 1998

- 2009 period in each coastal segment (For a discussion of EPA’s selection of the 90 th percentile to deriv e the proposed coastal criteria, see Section III.A.3.a and the TSD (Volume 2: Coastal Waters) )

.

207 NOTE : Sea WiFS w as replaced by MODIS and MERIS satellite generated data. EPA has developed an approach that can utilize any new satellite data sources for ongoing assessment purposes.Page 131 of 221 b) Request for C omment on Proposed Approach EPA believes that the proposed approach for coastal water s is appropriate, scientifically defensible, and results in numeric nutrient criteria that protect the State’s designated uses and ensure that nutrient concentrations of a body of water support balanced natural populations of aquatic flora and fauna

. EPA re quests comment on this approach and the resulting numeric nutrient criteria . EPA also solicits additional available scientific information that can be used to provide protection of fish consumption, recreation and the propagation and maintenance of a healt hy, well

- balanced population of fish and wildlife and protect Florida’s Class III coastal waters from nitrogen and phosphorus pollution

.

c) Proposed Criteria Duration and Frequency (Coastal Waters)
For EPA’s proposed chlorophyll a criteria for coastal w aters, the criterion

magnitude values (expressed as concentration s ) are provided in Table III. C

- 1, the criterion

- duration (or averaging period) is specified as annual, and the criterion

- frequency is specified as no - more - than

- once - every - three

- years. EPA is proposing a criteria

- duration of one year, in which sampled chlorophyll a concentrations are summarized as annual geometric means, to be consistent with the data set used to derive these criteria, which relied on annual average concentrations . EPA ’s proposed excursion frequency of no more - than

- once - every - three

- years is intended to minimize negative effects on designated uses as it will allow water bodies enough time to recover from occasionally elevated chlorophyll a concentrations

. 208 These dur ation and frequency components of the criteria

208 Boynton, W.R., J.D. Hagy, L. Murray, C. Stokes, and W.M. Kemp. 1996. A comparative analysis ofPage 132 of 221 are identical to those finalized in EPA’s rule for Florida’s lakes and flowing waters (40 CFR 131.43), which will add consistency to the implementation of these criteria with those established in the previous rulemaking. Finally , the 3

- year evaluation period provides a sufficient representation of average water body characteristics in the majority of cases, because it balances both short

- term and long

- term variation, while not imposing undue monitoring expectat ions. EPA requests comment on the frequency and duration components of these criteria and whether the three components of the criteria (magnitude, duration and frequency) taken in combination will ensure protection of the designated uses of these waters.

D

. Proposed Numeric Criteria for South Florida Inland Flowing Waters 1. Proposed Numeric Criteria (South Florida Inland Flowing Waters) For purposes of this proposal, EPA is defining “south Florida i nland flowing
waters” as inland predominantly fresh sur face waters that have been classified as Class I

or Class III in the South Florida Nutrient Watershed Region, which encompasses the waters south of Lake Okeechobee, the Caloosahatchee River (including Estero Bay) watershed, and the St. Lucie watershed. Thi s area contains more than 1,700 miles (2,736 km) of canals, dikes, and levees that control the movement of freshwater in south Florida. Some of the significant land management units within s outh Florida include the Everglades Agricultural Area, the Loxahat chee National Wildlife Refuge (Water Conservation Area 1), Water Conservation Areas 2 and 3, Big Cypress National Preserve, Everglades National Park, Biscayne Bay National Park, and the Florida Keys National

eutrophication patterns in a temperate coastal lagoon. Estuaries 19(2B):408

- 421.Page 133 of 221 Marine Sanctuary. A map showing this region is p rovided in the TSD (Volume 3: South Florida Inland Flowing Waters, Section 3). EPA is proposing that TN and TP DPVs be derived using the approaches outlined
in S ection III.D.2 for 2 2 pour points in south Florida, outside of the Everglades Protection Area ( EvPA) and Everglades Agricultural Area (EAA) , where inland flowing waters discharge into south Florida marine waters (Biscayne Bay, Florida Bay, and marine waters on the southeast and southwest coasts ). For south Florida , EPA is proposing the use of DPVs to manage nitrogen and phosphorus pollution in the inland flowing waters and protect the water quality of estuaries and coastal waters downstream. Therefore, t he applicable numeric nutrient criteria for south Florida inlan d flowing
waters , outside the lands of the Miccosukee and Seminole Tribes, EvPA , and the EAA, would consist solely of the south Florida marine water DPVs. The calculated DPVs using the approaches in Section III.D.2 for the 2 2 pour points are presented in t he TSD (V olume 3: South Florida Inland Flowing Waters, Section 2 ). The proposed approaches to derive DPVs that EPA is proposing for south Florida inland flowing waters do not apply to flowing waters (canals) within the EvPA or the EAA. There is an existing TP criterion of 0.010 mg/L (10 ppb) that currently applies to the marshes and adjacent canals within the EvPA (Section 61

- 302.540, F.A.C.). EPA approved that TP criterion in 2005 as protective of the waters in the EvPA. EPA’s approval was upheld by the U. S. District Court in Miccosukee Tribe of Indians of Florida , et al. v. U.S. EPA

. 209 For this proposal, EPA has determined that the existing TP criterion continues to be protective of the designated uses of the flowing waters in the

209 Miccosukee Tribe of Indians of Fla., et al. v . U

. S

. EPA, No. 1:04

- cv - 21448 ASG, 2008 WL 2967654 (S.D. Fla. July 29, 2008).Page 134 of 221 EvPA and that no additiona l numeric nutrient criteria are necessary at this time for the EvPA. While the existing TP criterion does not apply directly to the flowing waters of the EAA, EPA has also determined that the TP criterion will serve to be protective of the designated uses of the flowing waters in the EAA. Most of the water flowing from the
EAA currently pass es through stormwater treatment areas (STAs) that have been specifically constructed to remove phosphorus from th e water before it enter s the EvPA

. The waters discharging from the STAs are subject to CWA discharge permits that must include limits as stringent as necessary to meet the 10 ppb TP criterion in the EvPA. Efforts to reduce phosphorus upstream of the STAs (i.e., in the EAA) are currently

u nderway to ensure the water discharged from the STAs will meet the TP criterion in the EvPA. Based on the combination of the actions that will be necessary to ensure that waters from the EAA do not cause an impairment of the downstream waters in the EvPA, EPA has determined that the existing TP criterion is the only numeric nutrient criterion that is necessary to protect the flowing waters of the EAA as well as the EvPA. Development of water quality standards for the EvPA and restoration actions within the EAA to attain the TP criterion have been and remain subject to the oversight of two federal district courts. EPA believes its decision not to propose additional numeric nutrient criteria for these areas is appropriate given the ongoing restoration efforts in the Everglades. For further information about ongoing EPA and FDEP actions related to Everglades restoration see: (1) http://www.epa.gov/aboutepa/states/fl.html , and (2) http://depnewsroom.wordpress.com/hot

- topics/everglades/.
2. Proposed DPVs (South Florida)Page 135 of 221 EPA is proposing a procedure to establish numeric TN and TP criteria for south Florida inland flowing waters to protect the downstream marine waters that ultimately receive nitrogen and phosphorus pollution from upstream sources. However, as expla ined more fully in Section I.A, EPA does not intend to finalize these DPVs if the district court modifies the Consent Decree consistent with EPA’s amended determination that numeric DPVs are not necessary to meet CWA requirements in Florida. Like the DPVs that EPA is proposing to protect estuaries in Florida, EPA is proposing the DPVs for south Florida inland flowing waters that will apply at each stream or canal’s point of entry into the downstream south Florida marine water . If the DPV is not attained at the pour point into the applicable marine water segment , then the collective set of flowing waters, including canals, in the upstream watershed does not attain the DPV, for purposes of CWA section 303(d). The Agency is proposing a hierarchical procedure t hat includes four approaches for setting TN and TP DPVs . These are the same approaches EPA is proposing for the State to derive DPVs for Florida estuaries to reflect the data and scientific information available. The methods available to derive DPVs should be considered in the following order: 1. Water quality simulation models to derive TN and TP values , 2. Reference condition approach based on TN and TP concentrations at the stream pour point, coincident in time with the data record from which the downstream re ceiving marine water segment TN and TP criteria were developed using the same data quality screens and reference condition approach,Page 136 of 221 3. Dilution models based on the relationship between salinity and nutrient concentration in the receiving segment, and 4. The TN and TP criteria from the receiving marine water segment to which the freshwater stream discharges , in cases where data are too limited to apply the first three approaches.
EPA ’s intention in proposing the four approaches is to provide a range of methods
f or deriving TN and TP DPVs that reflect the degree of data and scientific information available. Water quality modeling is the most rigorous and most data

- demanding method, and will generally result in the most refined DPVs. Water quality modeling is EPA’s preferred method for establishing DPVs and is listed first in the hierarchy. Due to the highly modified and managed canal systems in south Florida, EPA did not develop mechanistic models for the region, however, EPA is including the option for use if mech anistic models are developed for south Florida in the future. EPA’s lead approach for calculating DPVs in south Florida is the reference condition approach. This approach is followed by less rigorous methods that are also less data

- demanding. Using a
proce dure from a lower tier of the hierarchy requires less data, but also generally results in more stringent DPVs to account for the uncertainties associated with these less refined procedures.
All four approaches are briefly described in the following discus sion . A more detailed description of the approaches, as well as the TN and TP DPV s that result from using the lead approach , the reference condition approach, is provided in the technical support document (Volume 3 : South Florida Inland Flowing Waters , Sec tion 2 )

.Page 137 of 221 EPA believes that the first approach, the use of water quality simulation models, is the most refined method to define a DPV at the stream’s pour point that will support balanced natural populations of aquatic flora and fauna in the downstream mar ine water. This approach may be appropriate when water quality simulation models are available , such as in the estuarine systems where mechanistic models were used to derive the criteria protective of the estuary

. EPA is proposing the second DPV approach , the reference condition approach, where a reference condition approach is used to derive TN, TP, and chlorophyll a criteria in the downstream marine water , as the lead approach for calculating DPVs in south Florida

. Florida derived numeric nutrient criter ia for TN, TP, and chlorophyll a in south Florida marine waters using a “Maintain Healthy Conditions Approach,” which derives criteria reflective of ambient water quality conditions (Section 62

- 302.532, F.A.C.). This approach is akin to EPA’s reference con dition approach, which is designed to develop numeric nutrient criteria that are protective of applicable designated uses by identifying numeric nutrient criteria concentrations occurring in least

- disturbed waters that are supporting designated uses. Since the downstream marine water is supporting balanced natural populations of aquatic flora and fauna during the reference condition period, the nutrient loads passing through the pour points into the marine water during the same period should be protective o f the marine water. Therefore , EPA believes it would be appropriate in these cases to derive reference condition

- based DPVs using water quality data at the pour point of the freshwater streams, coincident in time with the data record
f rom which the downstream marine water segment TN and TP criteria were derived . EPA proposes that water quality data used to calculate DPVs at each pour point be screened toPage 138 of 221 prevent the use of upstream water quality data that coincided with a documented downst ream impact . This will prevent deriving a DPV using upstream water quality data that coincided with a documented downstream impact (e.g., CWA section 303(d) listing for nutrients in the marine water segment) and ensure mathematical consistency between the DPVs and marine water criteria

. T he third DPV approach is also available for south Florida marine systems where water quality simulation models are not available. In these areas, EPA believes it would be appropriate to derive DPVs using dilution models ba sed on the relationship between salinity and nutrient concentration. The concept is that the tidal mixing or dilution can be estimated from the marine water salinity. By plotting observed marine water TN or TP versus the marine water salinity and fitting a linear regression , the TN or TP at various levels of salinity can be determined. This regression model can then be used to determine the TN or TP concentration at the pour point associated with the average marine water salinity that will ensure the attain ment and maintenance of the marine water numeric nutrient criteria concentration

. EPA ’s fourth approach for establishing DPVs is to apply the downstream receiving marine water segment TN and TP criteria to the pour point as the DPVs. This is the simplest a pproach and may be appropriate where data are too limited to apply the first three approaches

. Florida derived numeric nutrient criteria for south Florida marine
waters that can be found in Section 62

- 302.532(e)

- (h), F.A.C. Therefore, the applicable DPVs f or those south Florida marine waters would be Florida’s criteria in Section 62

- 302.532(e)

- (h), F.A.C. if using this fourth proposed approach for establishing DPVs.Page 139 of 221 EPA believes the proposed approaches for deriving DPVs establish a decision

making framewor k that is binding, clea r, predictable, and transparent. T herefore , EPA is proposing that DPVs derived using these approaches do not require EPA approval under Clean Water Act section 303(c) to take effect. 210 A DPV calculated under options 2, 3, and 4 may be more stringent than a DPV calculated using a water quality model. These alternative options are intended to ensure that water quality standards are not only restored when found to be impaired, but are main tained when found to be attained, consistent with the CWA. Higher levels of TN and/or TP may be allowed in watersheds where it is demonstrated that such higher levels will fully protect the marine water’s WQS. To the extent that it is determined that the a lternative option DPVs for a given marine water are over

- protective, applying a water quality model as set out in EPA’s option 1 would result in a more refined definition of the DPV for that marine water.
EPA believes that these proposed approaches to esta blish DPVs are appropriate, scientifically defensible, and result in numeric values that will ensure the attainment and maintenance of the downstream south Florida marine water criteria. EPA requests comment on these approaches . EPA also requests comment o n the alternative approach of finalizing the numeric TN and TP DPVs that EPA calculated using these approaches (as provided in Volume 3 : South Florida Inland Flowing Waters , Section 2 of the technical support document) in place of the proposed approaches. Finally, EPA solicits additional available scientific information that can be used to ensure attainment and maintenance of the downstream south Florida marine water criteria. Commenters who submitted comments or scientific information related to DPVs for e stuaries during the public

210 65 FR 24641, 24647 (April 27, 2000).Page 140 of 221 comment period for EPA’s proposed inland waters rule (75 FR 4173) should reconsider their previous comments in light of the new information presented in this proposal and
must re

- submit their comments during the public comment pe riod for this rulemaking to receive EPA response. a) Alternative Approach (South Florida Inland Flowing Waters) As an alternative to EPA’s proposed DPV

- only approach for south Florida inland flowing waters , EPA developed protective instream TN and TP criteria for Class I and III flowing waters (including canals and streams) in three inland subregions in south Florida (Biscayne, Palm Beach, and West) that are outside the lands of the Miccosukee and Seminole Tribes, EAA , and EvPA. EPA’s alternative criteria for south Florida inland flowing waters are listed in Table III.D

- 1. Table III.D

- 1. EPA’s Alternative N umeric C riteria for South Florida’s Inland Flowing W aters Subregion TN (mg/L) TP (mg/L) Biscayne 2 0.0 52 Palm Beach 2 0.0 52 West 2 0.0 52

EPA defined the boundaries of these three subregions based on patterns in geology/soils, hydrology, and vegetation. EPA compiled data for these subregions from IWR Run 40 and the South Florida Water Management Distri ct's DBHydro database.
EPA screened the data to include freshwater locations and Class III waters, resulting in 4,758 daily averages with matched chl

- a , TN, and TP data

.Page 141 of 221 Next, EPA chose to evaluate algal biomass, as indicated by chlorophyll a concentrations, as a sensitive endpoint for numeric nutrient criteria development . Nutrient pollution can increase biomass of primary producers, especially algae, and have subsequent negative impacts on recreation and aquatic life. The application of algal biomass as an endpoint for criteria derivation in s outh Florida inland flowing waters, including canals , might be appropriate given the following observations: (1) flow in these water bodies is frequently reduced, leading to long residence times ; (2) canopy cover is reduced both naturally and through manip ulation , reducing light limitation ; and (3) nutrient concentrations are elevated. Because both average chlorophyll a concentrations and instantaneous chlorophyll a concentrations (e.g. bloom conditions) can impact recreation and aquatic life, EPA chose to derive TN and TP criteria to reduc e the likelihood of increased nuisance algal blooms by relating maximum chlorophyll a to average annual chlorophyll concentrations . EPA defined nuisance algal bloom conditions as concentrations above 30 μg/L using trophic state boundaries, user perception studies, and observed impacts

. EPA evaluated existing scientific literature on the frequency of occurrence of chlorophyll a levels, and selected a 10 percent occurrence of nuisance algal blooms as the maximum allowable fre quency to prevent impairment of recreation and aquatic life in the three south Florida inland subregions

. 211
EPA then used statistical models to derive TN and TP criteria to limit the frequency of occurrence of nuisance algal blooms in these waters , defined by chlorophyll

a concentrations above 30 μg/L

. The resulting TN and TP criteria represent the annual geometric mean of TN and TP concentrations from flowing waters in each of the three

211 Havens, K.E. and W.W. Walker. 2002. Development of a total phosphorus concentration goal in the TMDL process for Lake Okeechobee, Florida (USA). Lake and Reservoir Management 18(3):227

- 238.Page 142 of 221 subregions that are associated with a 10 percent or lower frequency of nuisance algal bloom occurrence. If EPA were to finalize this alternative approach instead of EPA’s lead approach, these TN and TP criteria would apply throughout the flowing waters in each of th e three subregions, not just at the pour points. If criteria are calculated using this alternative approach, DPVs for protecting downstream south Florida marine waters will still be calculated using the hierarchi cal approach in Section III.D.2, unless, as described more in Section I.A, the district court modifies the Consent Decree consistent with EPA’s amended determination that numeric DPVs are not necessary to meet CWA requirements in Florida. Additional details on this alternative approach are provided in the TSD (Volume 3: South Florida Inland Flowing Waters, Section 3). b ) Request for C omment on Proposed and Alternative Approaches EPA believes that the proposed approach for south Florida inland flowing waters is appropriate, scientifically defensible , and result s in the protection of south Florida inland flowing waters. EPA requests comment on this approach . EPA also solicits additional available scientific information that can be used to provide protection of fish consumption, recreation and the prop agation and maintenance of a healthy, well

- balanced population of fish and wildlife in south Florida’s Class I and II I inland flowing waters from nitrogen and phosphorus pollution

. In addition, EPA requests comment on the alternative approach of deriving instream criteria for south Florida inland flowing waters outside of the lands of the Miccosukee and Seminole Tribes, EvPA , and EAA. Specifically, EPA requests comment on the scienti fic defensibility of this alternative approach as well as whether application of this approach will result in numeric nutrient criteria that protect the State’s designatedPage 143 of 221 uses and ensure that nutrient concentration s of a body of water support balanced nat ural populations of aquatic flora and fauna. Commenters who submitted comments or scientific information related to numeric nutrient criteria for south Florida inland flowing waters during the public comment period for EPA’s proposed inland waters rule ( 75 FR 4173 ) should reconsider their previous comments in light of the new information presented in this proposal and
must re

- submit their comments during the public comment period for this rulemaking to receive EPA response.

F

. Applicability of Criteria When Final
EPA ’s propose s d that the numeric nutrient criteria for Florida’s estuaries , coastal waters, and s outh Florida inland flowing waters described in this rule will be effective for CWA purposes 60 days after EPA publishes final criteria , and they will apply in addition to any other criteria for Class I, II , or Class III waters already adopted by the State and submitted to EPA (and for those adopted after May 30, 2000, approved by EPA). EPA requests comment on this proposed effective date.

Addi tionally, EPA also requests comment on the alternative of a delayed effective date, such as the 15

- month delayed effective date that EPA promulgated in the final inland waters rule

. E PA subsequently further extended the effective date of the 2010 rule
to a llow time for FDEP to finalize and EPA to review Florida’s own numeric nutrient criteria rulemaking and reduce any administrative confusion and inefficiency that should occur if Federal criteria took effect while FDEP was finalizing or EPA was reviewing the Comment [E35]: OMB edits accept ed.Page 144 of 221 State rulemaking

. Florida’s newly

- approved State WQS include a schedule for future State rulemaking whereby they will develop numeric nutrient c riteria for additional estuaries by June 30, 2013 and again by June 30 , 2015. If Florida is on schedule toward adoption of protective and approvable standards for their additional waters, EPA may consider delaying the effective date of its final rule to after June 30 , 2015 to allow time for Florida to finalize and EPA to review the State’s numeric nutrient criteria. For water bodies that Florida has designated as Class I, II , and III , any final EPA numeric nutrient criteria will be applicable CWA water quality criteria for purposes of implementing CWA programs including permitting under the NPDES program, as well as monitoring and assessment , and establishment of TMDLs. The proposed cr iteria in this rule, when finalized, would be subject to Florida’s general rules of applicability to the same extent as are other State

- adopted and/or federally

- promulgated criteria for Florida
waters. Furthermore, states have discretion to adopt general p olicies that affect the application and implementation of WQS (40 CFR 131.13). There are many applications of criteria in Florida’s water quality programs. Therefore, EPA believes that it is not necessary for purposes of this proposed rule to enumerate eac h of them, nor is it necessary to restate any otherwise generally applicable requirements. It is important to note that no existing TMDL for waters in Florida will be rescinded or invalidated as a result of finalizing this proposed rule, nor will this prop osed rule when finalized have the effect of withdrawing any prior EPA approval of a TMDL in Florida. Neither the CWA nor EPA regulations require TMDLs to be completed or revised within any specific time period after a change in water quality standards occu rs. TMDLs are typically reviewed as part of s tates’ ongoing water quality assessment Comment [E36]: Paragraph added per OMB request.Page 145 of 221 programs. Florida may review TMDLs at its discretion based on the State’s priorities, resources, and most recent assessments. NPDES permits are subject to five

- year permit cycles, and in certain circumstances are administratively continued beyond five years. In practice, States often prioritize their administrative workload in permits. This prioritization could be coordinated with T MDL review. Because current nutrient TMDLs were established to protect Florida's waters from the effects of nitrogen and phosphorus pollution, the same goal as EPA's numeric nutrient criteria, the Agency believes that, absent specific new information to the contrary, it is reasonable to presume th at basing NPDES permit limits on those TMDLs will result in effluent limitations as stringent as necessary to meet the federal numeric nutrient criteria.

I V. Under What Conditions Will EPA Either Not Finalize or Withdraw These Federal Standards ? Under the CWA, Congress gave states primary responsibility for developing and adopting water quality standards for their navigable waters (CWA section 303(a)

- (c)). On June 13, 2012, FDEP submitted new and revised WQS for review by the EPA pursuant to secti on 303(c) of the CWA . On N ovember 30 , 2012, EPA approved the provisions of these rules submitted for review that constitute new or revised WQS (see Section II.F for additional information). Florida continues to have the option to adopt and submit to EPA nu meric nutrient criteria for any of the State’s Class I, Class II, and Class
III waters that are not covered in their June 13, 2012 submission to EPA, consistent with CWA section 303(c) and implementing regulations at 40 CFR 131

. Although EPA is proposing n umeric nutrient criteria for Florida estuaries , coastal waters , and south Florida Comment [E37]: Sentence added per OMB request.Page 146 of 221 inland flowing waters , if EPA approves criteria that are legally effective under Florida law for any other waters covered in this proposed rule as fully satisfying the CWA be fore publication of the final rulemaking, EPA will not proceed with the final rulemaking for those waters. Also, EPA will not proceed with final rulemaking for numeric DPVs, provided that the district court modifies the Consent Decree consistent with EPA’s amended determination that numeric DPVs are not necessary to meet CWA requirements in Florida (see Section I.A for more information). Pursuant to 40 CFR 131.21(c), if EPA finalize s this proposed rule, EPA’s promulgated water quality standards WQS are become applicable water quality standards WQS for purposes of the CWA on their effective date unless or until EPA withdraws those federally

- promulgated water quality standards WQS

. Withdrawing the Federal standards for the State of Florida would require r ulemaking by EPA pursuant to the requirements of the Administrative Procedure Act (5 U.S.C.551 et seq .). EPA would undertake such a rulemaking to withdraw the Federal criteria if and w hen Florida adopts and EPA approves numeric nutrient criteria that fully meet the requirements of section 303(c) of the CWA and EPA’s implementing regulations at 40 CFR 131

. If Florida adopts and EPA approves nutrient criteria that meet these requirements for a subset of waters, EPA would withdraw the Federal standards for tha t subset of waters.
V. Alternative Regulatory Approaches and Implementation Mechanisms A. Designating Uses Under CWA section 303(c) (2)(A) , states shall adopt d esignated uses a fter taking “into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish, and wildlife, recreation in and on the water, agricultural, Comment [E38]: OMB edits accepted.

Comment [E39]: OMB edit accepted.Page 147 of 221 industrial and other purposes including navigation.” Designated uses “shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of [the CWA].” (CWA section 303(c)(2)(A)). EPA’s regulation at 40 CFR 131.3(f) defines “ designated uses ” as “ th os e uses specified in water quality standards for each water body or segment whether or not they are being attained.” A “use” is a particular function of, or activity in, waters of the U nited States that requires a specific level of water quality to support it. In other words, d esign ated uses are a s tate’s concise statements of its management objectives and expectations for individual surface waters. In the context of designat ing uses, s tate s often work with stakeholders to identify a collective goal for their waters that the state i ntend s to strive for as it manage s water quality. States may evaluate the attainability of these goals and expectations to ensure they have designated appropriate uses (40 CFR 131.10(g)). E PA’s regulations at 40 CFR 131 interpret and implement CWA sections 101(a)(2) and 303(c)(2)(A) to require that states adopt designated uses that provide water quality for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water (referred to as uses specified in section 101(a)( 2) of the Act), wherever attainable (40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 131.10(g),(j) ). W here s tates do not designate uses specified in 101(a)(2) of the Act , or remove such uses, they must demonstrate that the uses are not attainable consistent with the use attainability analysis (UAA) provisions of 40 CFR 131.10 , specifically 131.10(g)

. A s tate may remove protection for a use specified in CWA section 101(a)(2) if it can show, based on a UAA consistent with 131.10, that attaining such a designated the use is not attainable feasible

. States may include waters located in the same watershed in a single UAA , provide d that there is site

- specificPage 148 of 221 information to show how each individual water fits into the group in the context of any single UAA and how each individual water meets the applicable requirements of 40 CFR 131.10(g) for removing or modifying a use . EPA’s proposed numeric nutrient criteria for estuaries , coastal waters, and south Florida inland flowing waters w ill apply to those waters designat ed by F lorida as Class I (Potable Water Supplies) , Class II (Shellfish Propagation or Harvesting) , and Class III (Recreation, Prop a gation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife)

. If Florida removes the Class I, Class II , and/or Class III designated

use for a ny particular water body ultimately affected by this rule such that it is no longer designated as either Class I, II, or III , and EPA approves such a removal because it is consistent with CWA section 303(c) and regulations at 40 CFR 131, then the federally

promulgated numeric nutrient criteria would not appl y to that water body. Only the water quality criteria associated with the revised designated use would apply to that water body.

B. Variances A variance m ay be described as a time

- limited designated use and criteria that target a specific pollutant(s), source(s), water body(ies) and/or water body segment(s)

. 212
Variances constitute new or revised water quality standards subject to the procedural and substantive requirements applicable to removing a designated use. 213 Thus, EPA may only approve a variance if it is based on the same factors, set out at 40 CFR 1 31.10 (g) , that are required to revise a use specified in CWA section 101(a)(2) through a UAA.

212 Water Quality Standards Regulation , 40 C

. F

. R

. Part 131: Advance notice of proposed rulemaking

. USEPA Fed. Reg. 63:129 (July 7, 1998). p. 36741

- 36806. 213 In re Bethlehem Steel Corporation , General Counsel Opinion No. 58

. March 29, 1977 (1977 WL 28245 (E.P.A. G.C.)). USEPA. 1994. Water Quality Standards Handbook: Second Edition. EPA

- 823

- B

- 94

- 005a. U.S. Environmental Protection Agency, Office of Water, Washington, DC. Comment [E40]: OMB edits accepted.

Comment [E41]: OMB edit accepted.Page 149 of 221 Typically, variances are time

- limited, but may be renew ed

. Temporarily

m odifying the designated use for a particular water body through a variance process allows a s tate to identify an interim designated use and associated criteria to serve as the basis fo r NPDES permit limits and issuing certifications under CWA section 401 during the term of the variance while maintaining the designated use and associated criteria as the ultimate goal

. A state should seek a variance instead of removing or revising the designated use where the s tate believes the designated use and associated criteria can be attained at some point in the future

. By maintaining the designated use , and associated criteria, and by specifying a point in the future when the designated use will be fully applicable in all respects , the s tate en sure s that further progress will be made in improving water quality and attaining the ultimate goal

. A variance may be written to address a specifi c geographic area , a specifi c pollutant or pollutants, and /or a specifi c discharger

. All other applicable water quality standards not specifically modified by the variance , including any other criteria adopted to protect the designated use , remain applicable. State variance procedures, as part of

s tate water qual ity standards , must be consistent with the substantive requirements of 40
CFR 131. Each variance must be submitted to EPA as a revised water quality standard for review and approval or disapproval pursuant to CWA section 303(c). For purposes of t his propo sal , EPA is proposing criteria that apply to use designations that Florida has already established. EPA believes that the State continues to have sufficient authority under 131.10 to grant variances under its variance procedures to Class I , Class II or Class II I uses and associated criteria. For this reason, EPA is not proposing a Federal variance procedure. Comment [E42]: OMB edit accepted.Page 150 of 221 C. Site

- S pecific Alternative Criteria Site

- s pecific alternative criteria (SSAC) are alternative value s to otherwise applicable water quality c riteria that would be applied on a watershed, area

- wide , or water body

- specific basis that meet the regulatory test of protecting the water’s designated use , having a basis in sound science , and ensuring the protection and maintenance of downstream water quality standards

. SSAC may be more or less stringent than the otherwise applicable criteri a . In either case, because the SSAC must protect the same designated use and must be based on sound science according to the requirement s of 40 CFR 131.11(a), there is no need to modify the designated use or conduct a UAA

. A SSAC may be appropriate when additional scientific data and analyses can bring increased precision or accuracy to express ing the concentration of a water quality
parame ter that is protective of the designated use

. In EPA’s 2010 rulemaking for Florida’s lakes and flowing waters outside of the South Florida Nutrient Watershed Region, EPA promulgated a procedure whereby EPA’s Region 4 Regional Administrator may establish a SSAC after making available the proposed SSAC and supporting documentation for public comment (40 CFR 131.43(e)). This procedure became effective for CWA purposes on February 4, 2011. Under this provision, any entity, including the State , can submit a proposed Federal SSAC directly to EPA for the Agency’s review and assessment as to whether an adjustment to the applicable Federal numeric nutrient criteria is warranted. The Federal SSAC process is separate and distinct from the State’s SSAC pro cesses in its water quality standards

. The current Federal SSAC procedure allows EPA to determine that a revised site

specific chlorophyll a , TN, TP, or nitrate+nitrite numeric criterion should apply in lieu ofPage 151 of 221 the generally applicable criteria promulgate d in the final rule for Florida’s lakes and flowing waters where that SSAC is demonstrated to be protective of the applicable designated use(s). The promulgated procedure provides that EPA will solicit public comment on its determination. Because EPA’s rul e established this procedure, implementation of this procedure does not require withdrawal of the associated federally

promulgated criteria for the Federal SSAC to be effective for purposes of the CWA. EPA has promulgated similar procedures for EPA’s grant ing of variances and SSACs in other federally

- promulgated water quality standards

. 214
As outlined in 40 CFR 131.43(e) and in the draft “Technical Assistance for Developing Nutrient Site

- Specific Alternative Criteria in Florida” (June 2011), the process for obtaining a Federal SSAC includes the following steps. First, an entity seeking a SSAC compiles the supporting data, conducts the analyses, develops the expression of the criterion, and prepares the supporting documentation demonstrating that alternative n umeric nutrient criteria are protective of the applicable designated use. The “entity” may be the State, a city or county, a municipal or industrial discharger , a permittee, a consulting firm acting on the behalf of a client, or any other individual or organization. The entity requesting the SSAC bears the burden of demonstrating that any proposed SSAC meets the requirements of the CWA and EPA’s implementing regulations, specifically 40 CFR 131.11. Second, if the entity is not the State, the entity must provide notice of the proposed SSAC to the State, including all supporting documentation so that the State may provide comments on the proposal to EPA. Third,
EPA’s Region 4 Regional Administrator will evalua te the technical basis and

214 See 40 CFR 131.33(a)(3), 40 CFR 131.34(c), 40 CFR 131.36(c)(3)(iii), 40 CFR 131.38(c)(2)(v), 40 CFR 131.40(c). Comment [E43]: OMB edit accepted.Page 152 of 221 protectiveness of the proposed SSAC and decide whether to publish a public notice and take comment on the proposed SSAC. The R egional Administrator may decide not to publish a public notice and instead r eturn the proposal to the entity submitting the proposal, with an explanation as to why the proposed SSAC application did not provide sufficient information for EPA to determine whether it meets CWA requirements or not. If EPA solicits public comment on a proposed SSAC, upon review of comments, th e Regional Administrator may determine that the Federal SSAC is or is not appropriate to account for site

- specific conditions and make that determination publicly available together with an explanation of the basis for the decision. Since the SSAC provision in EPA’s 2010 rule became effective, numerous entities have contacted EPA regarding a possible interest in obtaining a federal SSAC. However, following discussions with EPA, it became clear that a different water quality standards mechanism, such as a designated use change or variance, would be more appropriate in their particular situation. O n March 9, 2011, EPA received a SSAC request from a pulp and paper mill that discharges to the Fenholloway River. Since the SSAC was derived f rom data in a nearby reference stream, the Econfina River, the TN and TP SSAC were requested to apply to both the Econfina and Fenholloway Rivers. Additional information was submitted by the requestor during 2011 and 2012 to address questions posed by EPA. At this time, EPA does not have sufficient information to move forward with proposing or establishing the TP or TN SSAC for the Fenholloway and Econfina Rivers. EPA believes that there is benefit in extending this procedure for EPA adoption of Federal SSAC that will adjust the numeric nutrient criteria proposed in this rule. EPA is Comment [E44]: Paragraph added per OMB request.Page 153 of 221 therefore proposing that a similar procedure promulgated in 40 CFR 131.43(e) apply to estuaries, coastal waters , and south Florida inland flowing waters. EPA requests comment on the following proposed application of the SSAC procedure. To successfully develop a Federal SSAC for a given estuary , coastal water, or south Florida inland flowing water , a thorough analysis is necessary that indicates how the alternative concentratio n of TN, TP, or chlorophyll a support s both the designated use(s) of the water body itself , and provides for the attainme nt and maintenance of the WQS of downstream water bodies , where applicable

. This analysis should have supporting documentation that consists of examining indicators of longer

- term response to multiple stressors , such as seagrass health, as well as indicators of shorter

- term response specific to nitrogen and phosphorus pollution , such as chlorophyll a concentrations associated with bala nced phytoplankton biomass or sufficient dissolved oxygen to maintain aquatic life

. EPA is proposing seven approaches for developing SSAC for estuaries, coastal
water s , and s outh Florida inland flowing waters that are similar to the four approaches
EPA finalized in the 2010 rule for Florida’s lakes and flowing waters. The first five proposed approaches are replicating the approaches EPA used to develop estuary, tidal creek, marine lake, coastal , and s outh Florida inland flowing water criteria, respective ly, and applying these methods to a smaller subset of waters or water body segments

. To understand the necessary steps in this analysis, i nterested parties should refer to the complete documentation of these approaches in the Technical Support Document for this proposed rule

. Comment [E45]: OMB edit accepted.Page 154 of 221 The sixth proposed approach for developing SSAC is to conduct a biological, chemical, and physical assessment of water body conditions

. A detail ed description of the supporting rationale must be included in the documentation submitted to EPA. The components of this approach could include, but are not limited to, evaluation of : seagrass health , presence or absence of native flora and fauna, chlorophyll a concentrations or phytoplankton density, average daily dissolved oxygen fluctuation , organic versus inorganic components of total nitrogen, habitat assessment, and hydrologic disturbance. This approach could apply to any water body type, with specific components of the analysis tailored for the situation. The proposed seventh approach for developing SSAC is a general provision for using another scientifically defensible approach that is protective of the designated use. This provision allows applicants to make a complete demonstration to EPA using methods not otherwise described in the rule or its statement of basis, consistent with 40 CFR 131.11(b)(1)(iii). This approach could potentially include use of mechanistic models or other data and information.
D. Compliance Schedules A compliance schedule , or schedule of compliance, refers t o “a schedule of remedial measures included in a ‘permit,’ including an enforceable sequence of interim requirements

... leading to compliance with the CWA and regulations.” (40 CFR 122.2, CWA section 502(17)). In a n NPDES permit, Water Quality

- Based Effluen t Limitations (WQBELs) are effluent limits based on applicable water quality standards for a given pollutant in a s pecific receiving water (NPDES Permit Writers Manual, EPA

- 833

- B

- 96

- 003, December, 1996). EPA regulations provide that schedules of compliance may onlyPage 155 of 221 be included in permits if they are determined to be “appropriate” given the circumstances of the discharge and are to require compliance “as soon as possible ” (40 CFR 122.47). 215
Florida has adopted a regulation authorizing compliance schedules

. T hat regulation, Subsection 62

- 620.620(6) , F.A.C ., is not affected by t his proposed rule. The complete text of the Florida rules concerning compliance schedules is available at https://www.flrules.org/gateway/RuleNo.asp?ID=62

- 620.620

. Florida is, therefore, authorized to grant compliance schedules, as appropriate, under its rule for WQBELs based on EPA’s federally

- promulgated numeric nutrient criteria.

VI . Economic Analysis The CWA provides a comprehensive framework for the protection and restoration of the health of the Nation’s waters. EPA determined in 2009 that addressing the significant number of Florida waters impaired by nitrogen and phosphorus required the establishment of numeric nutrient criteria as part of Florida water quality standards adopted under the CWA. State implementation of numeric nutrient criteria in the proposed rule may result in an incremental level of controls needed for compliance with CWA programs, or require them sooner than would occur under current CWA programs. These controls include new or revised National Pollutant Discharge Elimination System (NPDES) permit conditions for point source dischargers and controls on other sources of nitrogen and p hosphorus (e.g., agriculture, urban runoff, and septic systems) through the development of Total Maximum Daily Loads (TMDLs) and Basin Management Action Plans (BMAPs).

215 Hanlon, Jim. USEPA Office of Wastewater Management. 2007, May 10. Memo randum to Alexis Stauss, Director of Water Division EPA Region 9, on “ Compliance Schedules for Water Quality

- Based Effluent Limitations on NPDES Permits .”Page 156 of 221 EPA conducted an analysis to estimate both the increase in the number of impaired water s that may be identified as a result of the proposed rule, and the potential annual cost of CWA pollution control actions likely to be implemented by the State of Florida and private parties to assure attainment of applicable State water quality designated uses. It is important to note that the costs of pollution controls needed to attain water quality standards for nutrients for waters already identified as impaired by the State (including waters with and without TMDLs in place) are not included in EPA est imates of the cost of the rule. EPA’s analysis is fully described in the document entitled Economic Analysis of Proposed Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters (hereinafter ref erred to as the Economic Analysis), which can be found in the docket and record for this proposed rule. This analysis shows that the incremental costs associated with the proposed rule range between $ 239.0 million and $ 632.4 million per year (2010 dollars ) and monetized benefits may be in the range from $ 39.0 to $ 53.4 million annually. 1. NRC Review of Phase 1 Cost Estimates On December 6, 2010 EPA published a final rule to set numeric nutrient criteria for lakes and streams in Florida designed to protect those waters for their State

designated uses, such as swimming, fishing, or as drinking water sources (Phase 1 rule)

. EPA d eveloped an economic analysis to provide the public with information on potential costs and benefits that may be associated with Florida’s implementation of EPA’s rule. EPA’s estimate of the annual costs of that rule ranged from $135.5 to $206.1 million;

s takeholder estimates of the same cost categories ranged from $8 to $13 billion annually. While these costs are not directly related to today’s proposed rule, EPA determined thatPage 157 of 221 an independent peer review of its economic analysis for the Phase 1 rule woul d provide important information on the disparity between EPA’s cost estimates and those of some stakeholders, and would be helpful to inform and improve its analysis of today’s proposed rule. Accordingly, EPA requested the National Research Council (NRC) of the National Academies to review EPA’s economic analysis for the Phase 1 rule

. The NRC Committee completed its “Review of the EPA’s Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida” in June. The
C ommittee was charged with reviewing and commenting on three specific areas: 1) EPA’s assumption that only newly impaired waters should be analyzed, 2) EPA’s decision to estimate costs associated only with sources affecting newly impaired waters, by sector, and 3) EPA’s assumptions about levels of control by point and nonpoint sources, including the use of variances and other flexibilities for more cost

- effective approaches and whether to implement reverse osmosis and other stringent control technologies.
NRC answ ered the first charge, agreeing with EPA’s assumption that only newly impaired waters should be analyzed

. NRC also addressed the second charge, but took exception with EPA’s approach to not estimating cost s for unassessed waters or for septic systems affe cting impaired springsheds. NRC also suggested that EPA underestimated the affected acres in agriculture. The Committee did not offer specific suggestions for how to compute the increased acreage that should be analyzed . However, on the cost side, they s uggest including costs associated with installation of regional treatment systems on agricultural lands

.Page 158 of 221 As for the third charge, the Committee largely addressed this by examining the details of EPA’s unit costs, including comments suggesting ways in whic h EPA underestimated or overestimated costs. The Committee did not directly address EPA’s assumptions regarding the use of SSACs, variances and use designations, except to propose an alternative cost estimating framework based on predicting the future tim e path of waters progressing through the stages of listing as impaired, TMDL development, and BMAP implementation, with and without the rule. The Committee generally concluded that EPA’s cost estimates were likely too low, while the stakeholder estimates were too high. In response to the NRC review, EPA has attempted to incorporate many of the recommendations and suggestions made throughout the NRC report including: using the HUC

- 12 watershed unit of analysis; analyzing potential costs for unassessed wate rs that could be incrementally impaired; analyzing costs for each industrial plant rather than extrapolating the results from a small sample; reviewing actual experience from existing TMDLs to identify BMPs sufficient to meet numeric targets; considering p ermeable reactive barriers for septic systems and their installation costs; and considering uncertainty in government expenditures . EPA has addressed these recommendations and suggestions in this analysis of costs for the coastal and estuary criteria.
Th e NRC Committee also described an approach for EPA to consider in analyzing the impacts of its numeric nutrients criteria rules by tracing out two time

- paths of costs and benefits: one time

- path for the baseline and one reflecting the proposed rule. The

c osts and benefits of the proposed rule could then be analyzed as the present value of the difference in the two time

- paths of costs and benefits, respectively. To execute thisPage 159 of 221 approach, EPA would need to model not just its projection of the eventual contr ols that would be implemented under the proposed rule, but its predictions of the prioritization of watersheds that Florida would adopt to determine the timing of controls. NRC suggested that EPA could engage external stakeholders in a collaborative proce ss to determine a collective set of assumptions to use as part of this analytical approach (or at least to “isolate and possibly reconcile” areas of disagreement). EPA acknowledges the merit of this approach, and notes that it is consistent with EPA’s int ent that its numeric nutrients criteria simply interpret Florida’s current narrative nutrient criterion, by providing the often time

- consuming first step of the science

- based modeling necessary for developing a TMDL. The ultimate effect of the EPA’s propos al would be to improve the efficiency and effectiveness of Florida’s WQS program with regard to nutrients. However, given the exigencies of the consent decree and the timing of the NRC review, EPA determined that it was not possible to adopt the NRC’s alt ernative approach for this proposal. The NRC’s alternative approach was presented as a finding, rather than a recommendation, because the NRC acknowledged that time and budget constraints might render this approach unworkable for the current rule. Consid ering the exigencies, EPA took the approach of estimating costs and benefits for a representative future year, using current water quality data as a basis for projecting what incremental water quality controls would need to be implemented during this futur e year to meet the new criteria. An approach that compares two complete future time

- paths (with and without the proposed rule) requires taking the difference between those two time

- paths, discounting over time, and summing in order to express the impacts in present value terms. In contrast, EPA’s approach identifies waters that would bePage 160 of 221 newly identified as impaired and the controls that would be needed to meet the new criteria. EPA then annualizes the costs of these controls over an appropriate time hori zon. As such, the two approaches are not directly comparable. Nonetheless, EPA believes its approach sheds light on the costs and benefits associated with its numeric nutrients criteria rules and complies with the Executive Order requirements for conduct ing economic analysis of regulations. As noted above, EPA has made significant changes to its approach to address the NRC recommendations that are applicable to it.
2. Baseline for Cost Analysis EPA is promulgating numeric nutrient criteria to supplement th e State of Florida’s current narrative nutrient criteria. The incremental impacts of the proposed rule are the potential costs and benefits associated with implementation of the proposed numeric criteria, including DPVs, for estuaries, coastal waters, and south Florida inland flowing waters, above and beyond the costs associated with State implementation of its current narrative nutrient criterion. The baseline incorporates requirements associated with restoration of already identified impaired waters, incl uding waters for which TMDLs are approved and waters for which TMDLs are not yet developed. Because the numeric nutrients criteria proposed here interpret Florida’s existing narrative criterion, which is also the basis for existing TMDLs, the analysis ass umes that these TMDLs would be adopted as site

- specific criteria. Thus, there would be no additional costs or benefits associated with the proposed rule for these waters. The baseline for this analysis also includes EPA’s previously promulgated numeric nu trient criteria for Florida’s lakes and flowing waters.Page 161 of 221 For waters that the State of Florida has already identified as impaired but for which it has not yet developed TMDLs, EPA expects that the effect of this proposed rule will be to shorten the time an d reduce the resources necessary for the State of Florida to develop TMDLs and BMAPs. For waters that the State of Florida has developed TMDLs, EPA has looked at the proposed criteria to compare these to the target loadings in the TMDLs and has not found a consistent pattern of existing TMDLs being either more or less stringent than would be required to meet the criteria proposed in this rule. For already impaired waters and waters already under a TMDL, EPA assumed that no additional controls on nonpoint sources to these waters would be needed as a consequence of this rule. However, there may be an incremental impact of the proposed rule for any point source dischargers to these waters that have or may receive waste load allocations for just one nutrient p ollutant if those waters are not attaining criteria for the other as a result of this proposed rule. These costs are included in this economic analysis. For waters not currently impaired under the baseline, EPA uses current water quality measurements to predict which waters would be deemed unimpaired as a result of the proposed rule (and therefore need not be analyzed for nonpoint source control costs). EPA acknowledges that these conditions could change in the future. To the extent that the experience in implementation of the proposed rule deviates from these specific assumptions about the baseline, EPA’s estimates of the costs and benefits may be under

or overestimated. See Section 2 of the Economic Analysis for a full description of the baseline. EP A requests comment on its assumptions regarding the baseline.
3. Incremental CostsPage 162 of 221 The likely effect of this proposed rule will be the assessment and identification of additional waters that are impaired and not meeting the numeric water quality criteria in the proposed rule. The incremental impact of the proposed rule includes the costs for controls on point and nonpoint sources, developing and implementing TMDLs to attain the proposed criteria, and the monetary value (benefits) of the resulting potential i ncrease in water quality. The economic analysis describes these potential incremental impacts of the proposed rule. It is important to note that EPA took care not to include costs for the estuarine and coastal marine waters contained in Florida’s newly

- approved State WQS

. To develop these estimates, EPA first assessed State control requirements associated with current water quality, existing impaired waters, and existing TMDLs, as well as existing regulations specific to estuaries, coastal waters and south Florida inland flowing waters (the baseline). EPA then identified the costs and benefits associated with additional pollution controls to meet EPA’s proposed numeric criteria, beyond pollution controls currently needed or in place. To estimate in cremental costs to municipal and industrial dischargers, EPA gathered publicly available facility information and data on potential control technologies, and used Florida Department of Environmental Protection (FDEP) point source implementation procedures to estimate the change in WQBELs and treatment controls that could result from the proposed rule. EPA assessed potential non

point source control costs by using publicly available information and data to determine land uses near waters that would likely be identified as impaired under the proposed rule. EPA used current FDEP data on stormwater controls and Florida Department of Agricultural and Consumer Services (FDACS) manuals to estimate costs of implementing stormwater and agricultural best management p ractices (BMPs) to attainPage 163 of 221 the proposed numeric criteria. EPA also estimated the potential costs associated with upgrades of homeowner septic systems and potential government costs of developing additional TMDLs for water identified as impaired under this r ule. Finally, EPA qualitatively and quantitatively described and estimated some of the potential benefits of complying with the new water quality standards. Although it is difficult to predict with certainty how the State of Florida will implement these ne w water quality standards, the result of this analysis represent EPA’s best estimates of costs and benefits of the State of Florida’s likely actions to implement this proposed rule.

A. Incrementally Impaired Waters Compared to current conditions, potentia lly incrementally impaired waters are those waters that exceed EPA’s proposed criteria for which FDEP has not already developed a TMDL or listed as impaired for nutrients. To estimate incremental costs associated with attainment of criteria, EPA first remo ved any waters for which the State of Florida has already determined to be impaired or established a TMDL and/or BMAP, because it considers these waters part of the baseline for this analysis. BMAPs are iterative and are updated on a continual basis until the TMDL targets are met. EPA assumes that controls will be implemented through these mechanisms until the TMDLs are met. Although additional costs to address baseline impairments may be needed in the future (after this rule is promulgated), EPA does not b elieve that these costs should be attributed to this proposed rule, but are instead part of the baseline. As discussed above, the State of Florida is not required to revise any existing TMDL as a result of this rule, and WQBELs in NPDES permits that are co nsistent with an existing EPA approved TMDL meet the requirements of the CWA. TMDL nutrient criteria have been shown toPage 164 of 221 be both more stringent and less stringent when compared to criteria under this proposed rule and EPA has provided SSACs as a mechanism to approve the standards in existing TMDLs and BMAPs. Thus, EPA does not anticipate that this rule will result in increased nonpoint source controls costs for watersheds that already have an EPA

- approved
TMDL. After excluding waters already identified as impaired under Florida’s existing narrative criteria, EPA next identified estuarine and coastal segments that do not meet the numeric criteria of this proposed rule. EPA then assumed identified waterbodies (WBIDs 216 ) that overlap those segments may be identi fied as incrementally impaired. EPA then identified the watersheds that contain or surround, in the case of coastal waters, those incrementally impaired WBIDs. EPA analyzed FDEP’s database of ambient water quality monitoring data and compared monitoring d ata for each segment with EPA’s proposed criteria for TN and TP to identify incrementally impaired waters. EPA compiled the most recent five years of monitoring data and determined if there was sufficient data available to calculate more than one annual ge ometric mean in a consecutive three year period. With sufficient data, EPA calculated the annual geometric mean for each segment identified by EPA segment boundaries, and identified waters as incrementally impaired if they exceeded the applicable criteria in this proposed rule. The results of this analysis are shown in Table VI(A). Table VI(A)(1): Number of WBIDs Summary of Data Analysis for Proposed Criteria 1 Criteria Type Baseline Impaired 2 Not Currently Impaired Under the Baseline Total

216 WBID is a waterbody identification number assigned by Florida, in order to delineate the boundaries of Florida’s waters.Page 16 5 of 221 Data Available 3 Data Not Available Coastal 0 5 68 73 Estuaries 42 121 95 258 Total 42 126 163 331 Source: FDEP IWR run 44. 1. Represents number of WBIDs, based on 10% of WBID area overlapping segments for which EPA is proposing numeric nutrient criteria. 2. On 303(d) list as impaired for nutrients or covered under a nutrient

- related TMDL. EPA did not assess these waters further for attainment of the proposed criteria. 3. WBIDs in segments for which at least two geometric means in a consecutive three year p eriod can be calculated based on having at least four samples in a given year, with one sample in winter and summer.
Controls may also be needed to meet the proposed criteria in a portion of the 163 WBIDs for which EPA does not have data if subsequent da ta would indicate impairment. These 163 WBIDs are variously located in the same watersheds as WBIDs that are baseline impaired or incrementally impaired by this proposed rule, or in watersheds either with no known impaired WBIDs or for which none of the W BIDs have sufficient data to determine impairment status. Without additional information about these waters, EPA determined the number of impaired

- though

- unassessed waters as a range. As a low estimate, it is possible that none of the unassessed waters would be impaired. Given the targeting scheme for Florida’s IWR data, these unassessed waters likely have a lower probability of impairment than assessed waters, and zero represents the lower bound. For the high end of the range, EPA considered a proporti onal impairment rate of assessed waters. The impairment rate of unassessed waters may be anywhere in between. While helpful in establishing the number of waterbodies that may be incrementally impaired, the assumption of proportional impairment does not pr oduce information on location needed to estimate associated costs. The majority of unassessed waters lie along the coast and in close proximity to baseline impaired and impaired assessed waters. Hence, for this analysis, EPA assumed that impairment in unas sessed waters would most likely be near baseline impairments and impaired assessed waters,Page 166 of 221 since the loads causing impairment in these assessed waters could also affect the downstream unassessed waters. For coastal waters and south Florida waters, EPA used GIS to locate waters within or adjacent to the same watersheds associated with baseline impairments and impaired assessed waters. For estuaries, the number of unassessed waters estimated to be impaired (based on the assumption of proportional impairment) would not fit within the same watersheds associated with baseline impairments and impaired assessed waters. Therefore, EPA used GIS analysis to identify a buffer around the watersheds associated with baseline impairments and impaired assessed waters that would just include the estimated number of impaired unassessed waters. EPA found that a buffer size of 0.7 miles encompassed the estimated number of impaired unassessed waters. A smaller buffer (e.g., 0.5 mile) would not include enough unassessed waters . A larger buffer (e.g., 1 mile) would include too many unassessed waters. EPA then used this 0.7 mile buffer to identify the associated incremental watersheds that may need nonpoint source controls. EPA has estimated the acres of various land uses withi n these watersheds and reported as the upper bound in the Additional Unassessed Water column of Table VI(A)(2)

.

Table VI(A)(2 ) : Summary of Land Use in Incrementally Impaired Watersheds for the Analysis of Costs under the Proposed Rule (acres) Land Use Type Assessed Waters 1 Additional Unassessed Water 2 Total Agriculture 15,312 0

- 22,828 15,312

- 38,140 Communications and Utilities 3,337 0

- 3,315 3,337

- 6,652 Forest 199,432 0

- 256,137 199,432

- 455,569 Industrial 2,025 0

- 6,703 2,025

- 8,729

Other 9,276 0

- 11,306 9,276

- 20,582 Transportation Corridors 9,177 0

- 3,636 9,177

- 12,813 Urban 128,787 0

- 86,508 128,787

- 215,295 Water 220,728 0

- 102,615 220,728

- 323,343Page 167 of 221 The costs associated with the additional controls that would be necessary in the watersheds not already included in the cost analysis because of known incremental impaired waters will be included in the remainder of this section.

B. Point Source Costs Point sources of wastewater must have a National Pollution Discharge Elimination System (NPDES) perm it to discharge into surface waters. EPA identified point sources potentially discharging nitrogen and phosphorus to estuaries, coastal waters, and south Florida inland flowing waters by evaluating the Integrated Compliance Information System

- National Poll utant Discharge Elimination System (ICIS

- NPDES) database. EPA identified all facilities with any permitted discharge to estuarine, coastal, and south Florida inland flowing waters with an existing effluent limit or monitoring requirement for nitrogen or ph osphorus, as well as those with the same industry code as any point source with an identified nutrient monitoring requirement. This analysis identified 121 point sources as having the potential to discharge nitrogen and/or phosphorus. Table VI(B) summarize s the number of point sources with the potential to discharge nitrogen and/or phosphorus. Wetlands 196,545 0

- 322,355 196,545

- 518,899

Total 784,619 0

- 815,403 784,619

- 1,600,022 1. Total acreage of 12

- digit HUC watersheds surrounding the incrementally impaired WBIDs based on sufficient data, excluding watersheds for which EPA has already estimated a need for controls. 2. Acreage surrounding potential i ncrementally impaired unassessed waters not associated with baseline impairment or incremental impairment under the proposed rule based on sufficient data.Page 168 of 221 Table VI(B). NPDES

- Permitted Wastewater Dischargers Potentially Affected by Proposed Rule Discharger Category Major Dischargers a Minor Dischargers b Total Municipal Wastewater 53 31 84 Industrial Wastewater 19 18 37 Total 72 49 121
a Facilities discharging greater than one million gallons per day or likely to discharge toxic pollutants in toxic amounts. b Facilities discharging less than one million gallons per day and not likely to discharge toxic pollutants in toxic amounts. 1. Municipal Waste Water Treatment Plant (WWTP) Costs EPA considered the costs of known nitrogen and phosphorus treatment options for municipal WWTPs. Nitrogen and phos phorus removal technologies that are available can reliably attain annual average total nitrogen (TN) concentration of approximately
3.0 mg/L or less and annual average total phosphorus (TP) concentration of approximately 0.1 mg/L or less. 217 EPA considered wastewater treatment to these concentrations to be the target levels for the purpose of this analysis. The NRC suggested that there is uncertainty associated with this assumption because dischargers to impaired waters typically receiving WQBELs equal to t he numeric water quality criteria (NRC, 2012; p. 48). However, p rocedures for determining appropriate WQBELs include an evaluation of effluent quality and assimilative capacity of the receiving water. Specifically for nutrients , EPA found no implementation evidence in Florida to support the assumption that the criteria would be adopted as end

- of

- pipe limits. Instead, based on the State of Florida protocol 218 and the examples from existing nutrient TMDLs, EPA

217 U.S. EPA, 2008, “Municipal Nutrient Removal Technologies Reference Document. Volume 1

– Technical Report,” EPA 832

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- 006. 218 Florida Department of Environmental Protection (FDEP). 2006a. TMDL Protocol. Version 6.0. Task Assignment 003.03/05

- 003.Page 169 of 221 assumed for this analys is that state implementation of the proposed rule will not result in criteria end

- of

- pipe effluent limitations for municipal WWTPs. The NPDES permitting authority determines the need for WQBELs for point sources on the basis of determining their reasonable potential to exceed water quality criteria. To determine reasonable potential on a facility

- specific basis, data such as instream nutrient concentrations and low flow conditions would be necessary. However, because most WWTPs are likely to discharge nutri ents at concentrations above applicable TN and/or TP criteria , EPA assumed that all WWTPs have reasonable potential to exceed the numeric criteria. The NRC supported this assumption. For municipal wastewater, EPA estimated costs to reduce effluent concen trations
to 3 mg/L or less for TN and 0.1 mg/L or less for TP using advanced biological nutrient removal (BNR). Although reverse osmosis and other treatment technologies may have the potential to reduce nitrogen and phosphorus concentrations even further, EPA believes that implementation of reverse osmosis applied on such a large scale has not been demonstrated. 219 The NRC supported this assumption (NRC, 2012; p. 46) but said that in some instances, treatment to levels beyond the controls of advanced BNR woul d be required (NRC, 2012; p. 48). Such levels have not been required for WWTPs by the State of Florida in the past, including for those WWTPs under TMDLs with nutrient targets comparable to the criteria in this proposed rule. EPA believes that should state

- of

the

- art BNR technology, together with other readily available and effective physical and chemical treatment (including chemical precipitation and filtration), fall short of compliance with permit limits associated with meeting the new numeric nutrient criteria,

219 Treatment using reverse osmosis also requires substantial amounts of energy and creates disposal issues as a result of the large volume of concentrate generated.Page 170 of 221 then it is reasonable to assume that entities would first seek out alternative compliance mechanisms such as reuse, site

- specific alternative criteria, variances, and designated use modifications. In addition, under a TMDL, FDEP could allocate gr eater load reductions to nonpoint sources based on baseline contributions and existing controls, thus resulting in fewer reductions required from point source dischargers. EPA acknowledges that if its assumptions about the availability of reuse, SSACs, va riances and designated use changes are incorrect, then the costs presented here are underestimates. To estimate compliance costs for WWTPs, EPA identified current WWTP treatment capabilities using FDEP’s Wastewater Facility Regulation (WAFR) database, and information obtained from NPDES permits and/or water quality monitoring reports. Table VI(B)(1) summarizes EPA’s best estimate of the number of potentially affected municipal WWTPs that may require additional treatment for nitrogen and/or phosphorus
to me et the numeric criteria supporting State designated uses.

Table VI(B)(1). Summary of Potential for Additional Nutrient Controls for Municipal Wastewater Treatment Plants a Discharge Type Number of Dischargers Additional Reduction in TN and TP a Additional Reduction in TN Only b Additional Reduction in TP Only c No incremental controls needed d Total
Major 7 0 22 22 51 Minor 17 0 1 10 28 Total 24 0 23 32 79 Source: Based on treatment train descriptions in FDEP ’s Wastewater Facility Regulation database 220 and permits, WLAs in TMDLs and existing regulations, assuming dischargers would have to install advanced BNR for compliance under the rule. a. Includes dischargers without treatment processes capable of achieving the target levels or e xisting WLA for TN and TP, or for which the treatment train description is missing or unclear. b. Includes dischargers with chemical precipitation only. c. Includes dischargers with Modified Ludzack

- Ettinge (MLE), four

- stage Bardenpho, and BNR specified t o achieve less than 3 mg/L, or those with WLA under a TMDL for TN only. d. Includes dischargers with anaerobic

- anoxic oxidation (A 2 /O), modified Bardenpho, modified

220 Florida Department of Environmental Protection (FDEP). 2009. Wastewater Fa cility Information: Wastewater Facility Regulation (WAFR) database. http://www.dep.state.fl.us/water/wastewater/facinfo.htm . Accessed June 2009.Page 171 of 221 University of Cape Town (UCT), oxidation ditches, or other BNR coupled with chemical precip itation, those with WLAs under a TMDL for both TN and TP, those discharging to waters on the 303(d) list for nutrients or DO, and those ocean dischargers covered under the Grizzle

- Figg Act that will cease discharge completely by 2025

.

An EPA study provides unit cost estimates for BNR for various TN and TP performance levels 221 . To estimate costs for WWTPs, EPA used the average capital and average operation and maintenance (O&M) unit costs for technologies that achieve an annual average of 3 mg/L or le ss for TN and/or 0.1 mg/L or less for TP. NRC noted that these unit costs were significantly lower than those estimated by the Florida Water Environment Association Utility Council (FWEAUC) and suggested to verify the unit costs against FWEAUC’s unit cos ts. Multiplying these unit costs by facility flow reported in EPA’s PCS database, EPA estimated that total costs could be approximately $ 44.1 million per year (2010 dollars). 222 EPA also conducted a sensitivity analysis to address the potential for dischar gers under TMDLs that establish WLAs for TN or TP (and not both pollutants), such that incremental costs could be required under the proposed rule to control the other pollutant. The results of this analysis suggest a range of additional costs from $3. 6 mi llion to $5. 6 million annually (see section 5. 3 of the Economic Analysis). Thus, estimated total cost could range from approximately $ 47.7 million to $ 49.7 million per year.

221 USEPA. 2008. Municipal Nutrient Removal Technologies Reference Document. Volume 1

– Technical Report . EPA 832

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- 006. U.S. Environmental Protection Agency, Office of Wastewater Management, Municipal Support Division. 222 Estimated capital costs annualized at 7% over 20 years, plus estimated annual O&M.Page 172 of 221 2. Industrial Point Source Costs Incremental costs for industrial dischargers are likely to be facility

- specific and depend on process operations, existing treatment trains, and composition of waste streams. EPA identified 3 6 industrial dischargers potentially affected by the proposed rule. Of those, 4 are subject to an existing nutrien t TMDL, and 4 discharge to waters currently listed as impaired. As with WWTPs, EPA assumed that costs to industrial dischargers under an existing nutrient TMDL with WLAs for both nitrogen and phosphorus and costs at facilities discharging to currently impa ired waters are not attributable to this proposed rule because those costs would be incurred absent the rule (under the baseline). To estimate potential costs to the remaining 2 8 potentially affected industrial facilities (Table VI(B) (2) ), EPA used efflue nt data for flows, TN, and TP from Discharge Monitoring Reports in EPA’s ICIS

- NPDES database and other information in NPDES permits to determine whether or not they have reasonable potential to cause or contribute to an exceedance of the proposed criteria in this proposed rule. Because the numeric nutrient criteria are annual geometric means, EPA assumed that any discharger with an average TN or TP concentration greater than the proposed criterion would have reasonable potential. For those facilities with r easonable potential, EPA further analyzed their effluent data and estimated potential revised water quality based effluent limits (WQBELs) for TN and TP. If the data indicated that the facility would not be in compliance with the revised WQBEL, EPA estimat ed the additional nutrient controls those facilities would likely implement to allow receiving waters to meet designated uses and the costs of those controls. Although reverse osmosis and other treatmentPage 173 of 221 technologies have the potential to reduce nitrogen a nd phosphorus concentrations even further, EPA believes that implementation of reverse osmosis applied on such a large scale has not been demonstrated as likely or necessary. 223 If BNR or other more conventional cost

- effective treatment technologies would no t meet the revised WQBELs, EPA believes it is reasonable to assume that entities would first seek out other available compliance mechanisms such as reuse, site

- specific alternative criteria, variances, and designated use modifications. In addition, under a TMDL FDEP could allocate greater load reductions to nonpoint sources based on baseline contributions resulting in fewer reductions from point source dischargers. Using this method, EPA estimated that the potential costs for industrial dischargers could be approximately $ 15.2 million annually (2010 dollars). Note that a number of the dischargers would not incur incremental costs, while others would incur costs of implementing controls such as chemical precipitation, filtration, and/or BNR. NRC said that t he use of similar unit costs for industrial flows as EPA had used for municipal waste water treatment facilities did not capture the higher costs associated with lower flows and therefore industrial costs are underestimated. The source EPA used to find un it costs included plant costs with low flows that EPA was able to compare to plant costs with high flows, as NRC suggested. EPA found no pattern for higher or lower costs and therefore did not change its unit costs. The NRC also suggested EPA should inclu de costs for flow equalization atsome industrial facilities. EPA does not have enough flow data to estimate flow equalization costs, but did use the 90 th percentile flows as the basis for costs for dischargers with variable flows (see Cost Calculations for Industrial

223 Treatment using reverse osmosis also requires substantial amounts of energy and creates disposal issues as a result of the large volume of concentrate that is generated.Page 174 of 221 Dischargers). EPA considers the use of the 90 th percentile flow together with an allowance for contingencies to provide sufficient costs allowance to cover the cost of equalization should that be necessary at individual facilities. Table VI(B )(2): Potential Incremental Costs for Industrial Dischargers a

Industrial Category Total Number of Facilities Number of Facilities with costs b Total Annual Costs (million 2010$/yr) Chemicals and Allied Products 1 0 $0.0 Electric Services 8 2 $0.5 Food 2 1 $0.2 Mining 0 0 $0.0 Other 14 1 $0.0 Pulp and Paper 3 3 $14.5 Total 2 8 7 $15.2 a May not add due to rounding b In most cases, only a few facilities are projected to incur costs; others do not.

C. Non

- point Source Costs To estimate the potential incremental costs associated with controlling nitrogen and phosphorus pollution from non

- point sources, EPA identified land areas near incrementally impaired waters using GIS analysis. EPA identified the 12

- digit hydrologic units (HUC

- 12s) in Florida that contain, or in the case of coastal waters, surround an incrementally impaired WBID (WBIDs are GIS polygons for water assessment), and excluded those HUC

- 12s that are included in the baseline or cost analysis for in the Inland Rule . EPA then identified all the 12

- digit HUCs that drain to any remaining unassessed WBIDs that may become incrementally impaired should they be assessed in the future. EPA then identified land uses in these HUCs using GIS analysis of data obtained from the State of Florida. By using the HUC

- 12 delineation, EPA has addressedPage 175 of 221 the NRC recommendation that EPA use the more refined HUC

- 12 delineation instead of the larger HUC

- 10 delineation.
1. Costs for Urban Runoff EPA’s GIS analysis indicates that urban land (excluding land for industrial uses covered under point sources) accounts for approximately 128,800 acres to 215,300 acres of the land near incrementally impaired waters. EPA’s analysis indicates that urban runoff is already regulated on a portion of this land under EPA’s stormwater program requiring municipal separate storm sewer system (MS4) NPDES permits. Florida has a total of 27 large (Phase I) permitted MS4s serving greater than 100,000 people and 132 small (Phase II) permitted MS4s serving fewer tha n 100,000 people. MS4 permits generally do not have numeric nutrient limits, but instead rely on implementation of BMPs to control pollutants in stormwater to the maximum extent practicable. Even those MS4s in Florida discharging to impaired waters or unde r a TMDL currently do not have numeric limits for any pollutant. In addition to EPA’s stormwater program, several existing State rules are intended to reduce pollution from urban runoff and were included in the baseline for EPA’s proposed rule. For example , Florida's Urban Turf Fertilizer rule (administered by FDACS) requires a reduction in the amount of nitrogen and phosphorus that can be applied to lawns and recreational areas. Florida’s 1982 stormwater rule (Chapter 403 of Florida statues) requires sto rmwater from new development and redevelopment to be treated prior to discharge through the implementation of BMPs. The rule also requires that older systems be managed as needed to restore or maintain the beneficial uses of waters, and that water manageme nt districts establish and implement other stormwaterPage 176 of 221 pollutant load reduction goals. In addition, the “Water Resource Implementation Rule” (Chapter 62

- 40, F.A.C.) establishes that stormwater design criteria adopted by FDEP and the water management distric ts shall achieve at least 80% reduction of the average annual load of pollutants that cause or contribute to violations of water quality standards (95% reduction for outstanding natural resource waters). This rule sets design criteria for new development t hat is not based on impairment status of downstream waters. For NPDES permits, reasonable potential exists for any effluent concentrations above the criteria even if the water is attaining standards. Therefore, EPA assumed that post

- 1982 developed land alr eady has controls to meet 80% reductions and only older developed land would need an incremental level of control. The rule also states that the pollutant loadings from older stormwater management systems shall be reduced as necessary to restore or mainta in the designated uses of waters. As the proposed numeric nutrients criteria interpret the existing narrative criterion, EPA assumes any such reductions requiring costs are not a consequence of the proposed criteria. The NRC suggested that existing State rules are not being fully complied with and EPA should not consider them to be part of the baseline. EPA’s assumption of compliance with the 1982 Stormwater Rule is based on FDEP’s economic analysis indicating that post

- 1982 development would not need add itional controls. Given the State’s cyclical monitoring schedule, existing ambient monitoring data may not yet fully reflect nutrient reductions because the rule has only been in effect since July 2009. Other controls that target the quantity of stormwater runoff from low

- density residential land may not be as cost effective as the Urban Turf Fertilizer Rule. Thus, EPA did not estimate an incremental level of control to be needed for low

- density residential land.Page 177 of 221 Identifying water as impaired under the pro posed rule could result in changes to MS4 NPDES permit requirements for urban runoff, so that Florida waters meet the proposed criteria. However, the combination of additional pollution controls required will likely depend on the specific nutrient reductio n targets, the controls already in place, and the relative amounts of nitrogen and phosphorus pollution contained in urban runoff at each particular location. Because stormwater programs are usually implemented using an iterative approach

– with the instal lation of controls followed by monitoring and re

evaluation

– estimating the complete set of pollution controls required to meet a particular water quality target would require detailed site

- specific analysis. Although it is difficult to predict the complete set of potential additional stormwater controls that may be required to meet the numeric criteria that supports State designated uses in incrementally impaired waters, EPA estimated potential costs for addit ional treatment by assessing the amount of urban land that may require additional stormwater controls. FDEP has previously assumed that all urban land developed after adoption of Florida's 1982 stormwater rule would be in compliance with the Phase 1 rule

a nd EPA believes it is reasonable to make a similar assumption for this proposed rule. 224 Using this assumption, EPA used GIS analysis of land use data obtained from the State of Florida 225 to identify the amount of remaining urban land located near incrementa lly impaired waters. For Phase I MS4s, EPA used a range of acres with 46,700 acres as the upper bound and zero acres as the lower bound, because Phase I MS4 urban areas already

224 FDEP. 2010. FDEP Review of EPA’s " Preliminary Estimate of Potential Compliance Costs and Benefits Associated with EPA’s Proposed Numeric Nutrient Criteria for Florida": Prepared January 2010 by the Environmental Protection Agency. Florida Department of E nvironmental Protection, Division of Environmental Assessment and Restoration.

225 Florida Geographic Data Library, 2009.Page 178 of 221 must implement controls to the “maximum extent practicable.” As such, these

mun icipalities may not need to achieve additional reductions if existing requirements are already fully implemented. EPA similarly estimated ranges of acreage needing stormwater controls for Phase II MS4 areas, and non

- MS4 urban areas. GIS analysis of land u se data indicates that land in Phase II MS4 and non

- MS4 urban areas are low density residential. For the urban land that is not low density residential, some additional structural BMPs may be necessary to comply with EPA’s numeric nutrient criteria.
Becaus e nutrient reductions from low density residential land under the existing Urban Turf Fertilizer Rule are likely sufficient, and the State of Florida asserts that urban land developed after 1982 (77.9% of urban land) would not need additional controls for compliance with EPA’s numeric nutrient criteria, EPA estimated that approximately 27,700 to 43,100 acres of Phase II MS4 urban land and 19,600 to 28,900 acres of urban land outside of MS4 areas may require additional stormwater controls to meet EPA’s

numer ic nutrient criteria

. The actual acreage may be somewhere within the range. Using this procedure, EPA estimated that 47,300 to 118,700 acres may require additional stormwater controls. The cost of stormwater pollution controls can vary widely. FDEP tracks the cost of stormwater retrofit projects throughout the State that it has provided grant funding for. 226 EPA estimated control costs based on the average unit costs, $19,300, across all projects from FDEP (2012c) to account for the mix of project types like ly to be installed

226 FDEP. 2010. "Appendix 3: Cost Analysis for Municipal Discharge using 30 Year Annualization and Florida MS4 Numeric Nutri ent Criteri a Cost Estimation," I n : FDEP Review of EPA’s “Preliminary Estimate of Potential Compliance Costs and Benefits Associated with EPA’s Proposed Numeric Nutrient Criteria for Florida”: Prepared January 2010 by the Environmental Protection Agency . Florida Depar tment of Environmental Protection, Division of Environmental Assessment and Restoration

.Page 179 of 221 based on their current prevalence in grant funding throughout the state. The NRC suggested that higher pollutant removals may be obtained by more advanced stormwater control measures such as bioretention or other vegetated infiltration, which may be more costly than the current set of FDEP

- funded projects. NRC (2009) indicates annual per

acre costs could range from $300 per acre to $3,500 per acre. 227 EPA does not have the necessary information to exactly compare this source with EPA’s av erage unit costs of $19,300, but believes EPA’s unit costs are captured within the higher end of the range. Given that the costs may be comparable to the NRC suggested projects and the retrofit data is specific to projects that Florida has already impleme nted therefore making them more likely to be implemented for future projects, EPA continues to use costs from the Florida specific retrofit project data. EPA multiplied the average capital costs per acre ($19,300) of the FDEP projects by the number of acr es potentially requiring controls to estimate the potential incremental stormwater capital costs associated with the proposed rule. EPA then used FDEP's estimate of operation and maintenance (O&M) costs (at 5% of capital costs), and annualized capital cost s using FDEP's discount rate of 7% over 20 years. This analysis indicates that urban runoff control costs could range from approximately $ 131.9 million to $330.9 million. Table VI(C)(2) summarizes these estimates. Table VI(C)( 1 ): Estimated Incremental U rban Stormwater Costs
Urban Land Type Estimated Acres Potentially Needing Controls 1 Capital Costs (million $) 2 O&M Costs (million $/yr) 3 Annual Costs (million $/yr) 4
MS4 Phase I Urban 0

- 46,700 $0

- $901.4 $0

- $45.1 $0.0

- $130.2 MS4 Phase II Urban 27,700

- 43,100 $534.0

- $832.8 $26.7

- $41.6 $77.1

- $120.3

227 NRC (2009) does not provide the discount rate, useful life, or annual O&M costs it uses to estimate annual costs.Page 180 of 221 Non

- MS4 Urban 19,600

- 28,900 $379.2

- $557.5 $19.0

- $27.9 $54.8

- $80.5 Total 47,300

- 118,700 $913.2

- $2,291.7 $45.7

- $114.6 $131.9

- $330.9 1. Phase I MS4s range represents implementation of BMPs to the MEP resulting in compliance with EPA’s rule or controls needed on all pre

- 1982 developed land that is not low density residential; Phase II MS4s and urban land outside of MS4s represent controls needed o n all pre

- 1982 developed land that is not low density residential. Assumes that up to 46% of land associated with unassessed waters would require controls. 2. Represents acres needing controls multiplied by median unit costs of stormwater retrofit costs f rom FDEP (2010b). 3. Represents 5% of capital costs. 4. Capital costs annualized at 7% over 20 years plus annual O&M costs.

2. Agricultural Costs EPA’s GIS analysis of land use indicates that agriculture accounts for about 15,312 to 38,140 acres of land near incrementally impaired waters. This differs substantially from the Inland Rule where over 800,000 acres of agricultural land use were identifie d in watersheds draining to potentially incrementally impaired WBIDs, because agriculture is a much more prevalent land use inland than near the coast. Agricultural runoff can be a source of nitrogen and phosphorus to estuaries, coastal waters and south
F lorida inland flowing waters through the application of fertilizer to crops and pastures and from animal wastes. For waters impaired by nitrogen and phosphorus pollution, the 1999 Florida Watershed Restoration Act established that agricultural BMPs should be the primary instrument to implement TMDLs. Thus, additional waters identified by the State as impaired under the proposed rule may result in State requirements or provisions to reduce the discharge of nitrogen and/or phosphorus to incrementally impaired waters through the implementation of BMPs. The NRC suggested that for Phase I, the incremental agricultural land area identified was likely underestimated. EPA addressed this finding by including land area associated with potentially impaired unassessed waters in this analysis.Page 181 of 221 EPA estimated the potential costs of additional agricultural BMPs by evaluating land use data. BMP programs designed for each type of agricultural operation and their costs were taken from a study of agricultural BMPs to help me et TMDL targets in the Caloosahatchee River, St. Lucie River, and Lake Okeechobee watersheds. Three types of BMP programs were identified in this study. The first program, called the “Owner Implemented BMP program ,” consists of a set of BMPs that land owners might implement without additional incentives . The second program, called the “Typical BMP
program ,” is the set of BMPs that land owners might implement under a reasonably funded cost share program or a modest BMP strategy approach

. The third program, called the “Alternative BMP program ,” is a more expensive program designed to supplement the “Owner Implemented BMP program ” and “Typical BMP program ” if additional reductions a re necessary. The BMPs in the “Owner Implemented BMP Program ” and “Typical BMP Program” are similar to the BMPs verified as effective by FDEP and adopted by FDACS. EPA did not find BMPs in the “Alternative BMP Program” similar to the BMPs in the FDACS BMP manual, despite the NRC suggestion that the “Alternative BMP Program” would be needed to meet NNC. EPA has also found no indication that the “Alternative BMP Program,” which includes edge

- of

- farm stormwater chemical treatment, has been implemented through TMDLs to meet water quality standards for nutrients in wate rsheds with significant contributions from agriculture (e.g., Lake Okeechobee). EPA also found that TMDLs cite the Florida Department of Agriculture and Consumer Services’ (FDACS) BMP manual as a source of approved BMPs. Therefore, for purposes of this

an alysis, EPA believes it is reasonable to assume that nutrient controls for agriculturalPage 182 of 221 sources are best represented by the combination of the “Owner Implemented BMP Program” and “Typical BMP Program ” and not the more stringent “Alternative BMP Program” co ntrols. This assumption corroborates EPA’s intent for the nutrient criteria to provide the same level of protection as Florida’s narrative criteria. Table VI(C)(2) summarizes the potential incremental costs of BMPs on agricultural lands in the watersheds of incrementally impaired estuaries, coastal waters and south Florida inland flowing waters for each agricultural category. This analysis indicates that incremental agricultural costs resulting from the proposed numeric nutrient criteria may be estimated a t $ 0.3

- $0.7 million per year. Table VI(C)(2). Potential Incremental Agricultural BMP Costs Agricultural Category Area Potentially Needing Controls (acres) a “Owner Implemented BMP Program” plus ”Typical BMP Program” Unit Costs (2010$/ac/yr) b Total “Owne r Implemented BMP Program” and ”Typical BMP Program” Costs (2010$/yr) Animal Feeding 20

- 39 $18.56 $400

- $700 Citrus 0 $156.80 $0 Fruit Orchards c 0

- 7 $156.80 $0

- $1,100 Cow Calf Production,

Improved Pastures 1,115

- 4, 568 $15.84 $17,700

- $72,400 Cow Calf Production, Rangeland and Wooded Pasture 1,145

- 1,995 $4.22 $4,800

- $8,400 Cow Calf Production, Unimproved Pastures 299

- 1, 346 $4.22 $1,300

- $5,700 Cropland and Pasture Land (general) d 10,195

- 18,467 $27.26 $277,900

- $503,300 Dairies 0 $334.40 $0 Field Crop (Hayland) Production 479

- 1, 397 $18.56 $8,900

- $25,900 Horse Farms 34

- 123 $15.84 $500

- $1,900 Ornamental Nursery 4

- 8 $70.00 $300

- $600 Floriculture e 0 $70.00 $0 Row Crop 228

- 246 $70.40 $16,100

- $17,300 Sod/Turf Grass 0 $35.20 $0

Other Areas f 565

- 1,069 $18.56 $10,500

- $19,800 Total g 14,085

- 29 , 265 -- $338,300

- $657,200Page 183 of 221 Table VI(C)(2). Potential Incremental Agricultural BMP Costs Agricultural Category Area Potentially Needing Controls (acres) a “Owner Implemented BMP Program” plus ”Typical BMP Program” Unit Costs (2010$/ac/yr) b Total “Owne r Implemented BMP Program” and ”Typical BMP Program” Costs (2010$/yr) Note: Detail may not add to total due to independent rounding. a
. Low end of range represents acres associated with impaired assessed waters assuming none of the unassessed waters would be impaired under the proposed rule; high end of range represent low end plus controls on the watersheds associated with impaired unasse ssed waters (estimated based on proportional impairment to assessed waters) for which EPA has not already identified a need for controls for baseline or impaired assessed waters. Based on GIS analysis of land use data from five water management districts ( for entire State ) b . Cost estimates from SWET ( 2008 ); representative of 2010 prices (personal communication with D. Bottcher, 2010). c . Owner/typical BMP unit costs based on costs for citrus crops. d . Owner/typical BMP unit costs based on average costs for improved pastures, unimproved/wooded pasture, row crops, and field crops. e . Owner/typical BMP unit costs based on costs for ornamental nurseries. f . Includes FLUCCS Level 3 codes 2230, 2400, 2410, and 2540. g . Excludes land not in production.

3. Septic System Costs Some nutrient reductions from septic systems may be necessary for incrementally impaired waters to meet the numeric nutrient criteria in this proposed rule. Several nutrient

- related TMDLs in Florida identify septic systems as a significant so urce of nitrogen and phosphorus pollution. Some of the ways to address pollution from septic systems may include greater use of inspection programs and repair of failing systems, upgrading existing systems to advanced nutrient removal, installation of dece ntralized cluster systems where responsible management entities would ensure reliable operation and maintenance, and connecting households and businesses to wastewater treatment plants. Because of the cost, time, and issues associated with new wastewater t reatment plant construction , EPA assumed that the most likely strategy to reduce nutrient loads from septic systems would be to upgrade existing conventional septic systems to advanced nutrient removal systems.Page 184 of 221 Septic systems in close proximity to surface waters are more likely to contribute nutrient loads to waters than distant septic systems. Florida Administrative Code provides that in most cases septic systems should be at least 75 feet from surface waters (F.A.C.
64e

- 6.005(3)). In addition, many of Flo rida’s existing nutrient

- related TMDLs identify nearby failing septic systems as contributing to nutrient impairments in surface waters. For this economic analysis, EPA assumed that some septic systems located near incrementally impaired waters may be req uired to upgrade to advance nutrient removal systems. However, the distance that septic systems can be safely located relative to these surface waters depends on a variety of site

- specific factors. Because of this uncertainty, EPA assumed that septic syste ms located within 500 feet of any water (based on land use types) in watersheds containing or, in the case of coastal waters, surrounding incrementally impaired estuaries, coastal waters or south Florida inland flowing waters may need to be upgraded from c onventional to advanced nutrient removal systems. The NRC agreed with the 500

- ft threshold, but found that the exclusion of septic systems in springsheds is a deficiency of EPA’s analysis. This proposed rule does not include criteria for springsheds. EPA used GIS analysis of data obtained from the Florida Department of Health

228 that provides the location of active septic systems in the State to identify the potentially affected septic systems. This analysis yielded 5,952 to 10,784 active septic system s that may be affected by the proposed rule.

228 FDOH. 2010. Bureau of Onsite Sewage GIS Data Fi les

. Florida Department of Health, Division of Environmental Health. <http://www.doh.state.fl.us/Environment/programs/EhGis/EhGisDownload.htm>.Page 185 of 221 EPA evaluated the cost of upgrading existing septic systems to advanced nutrient removal systems. The NRC also recommended that EPA consider permeable reactive barriers (PRB) in their technology costs and take i nto account any additional Florida

specific costs related to septic system upgrades (e.g., performance

- based treatment systems , under Florida regulations , need to be designed by Florida licensed professional engineers ). EPA included this technology in the cost analysis, resulting in the range of upgrade capital costs from $3,300 to $8,800 per system. See the Economic Analysis for further detail. For O&M costs, EPA relied on a study that compared the annual costs associated with various septic system treat ment technologies including conventional onsite sewage treatment and disposal system and fixed film activated sludge systems. Based on this study, EPA estimated the incremental O&M costs for an advanced system to be $650 per year. 229 In addition, homeowners would also incur a biennial permit fee of $100 (or $50 per year) for the upgraded system. Thus, based on annual O&M costs of $700 and annualizing capital costs at 7% over 20 years, total annual costs could range from approximately $1,000 to $1,500 for each upgrade. EPA estimated the total annual costs of upgrading septic systems by multiplying this range of unit costs with the number of systems identified for upgrade. Using this method, total annual costs for upgrading septic systems in incrementally impair ed watersheds could range from $6.0 million to $16.2 million

.

229 Chang, N., M. Wanielista, A. Daranpob, F. Hossain, Z. Xuan, J. Miao, S. Liu, Z. Marimon, and S. Debusk. 2010. Onsite Sewage Treatment and Disposal Systems Evaluation for Nutrient Removal . FDEP Project #WM 928. Report Submitted to Florida Department of Environmental Protection, by Stormwater Management Academy, Civil, Environmental, and Construction Engineering De partment, University of Central Florida.Page 186 of 221 D . Governmental Costs The proposed rule may result in the identification of incrementally impaired waters that would require the development of additional TMDLs. As the principal State regulatory agency implementing water quality standard, FDEP may incur costs associated with d eveloping additional TMDLs. EPA’s analysis identified 95 (based on the analysis of assessed waters) to 183 (including potentially impaired unassessed waters) incrementally impaired waters (WBIDs). Because current TMDLs for estuaries and coastal waters in Florida include an average of approximately four WBIDs each, EPA estimates that the State of Florida may need to develop and adopt approximately 24 to 46 additional TMDLs. The NRC recommended applying Florida

- specific TMDL development costs from a FDEP rep ort detailing FDEP TMDL program costs. EPA used a range of costs from a 2001 EPA study that found the cost of developing a TMDL at different levels of aggregation and the Florida

- specific TMDL cost estimates are within this range of costs. 230 , 231 For this

ana lysis, EPA used the estimates for a single cause of impairment and adjusted the costs to account for the possibility that a TMDL may need to address more than one pollutant (because most of the incrementally impaired waters in EPA's analysis exceeded the

c riteria for more than one pollutant). Under this assumption, EPA estimated the average TMDL cost to be approximately $47,000 ($28,000 on average for one pollutant, plus $6,000 on average for the other pollutant and adjusted to 2010 dollars). EPA also

230 USEPA. 2001. The National Costs of the Total Maximum Daily Load Program (Draft Report ) . EPA

841

- D

- 01

- 003. U.S. Environmental Protection Agency, Office of Water, Washington DC. 231 EPA did not adjust these estimates to account for potential reductions in resources required to develop TMDLs given that scientifically based numeric targets were developed as part of this proposed rule. Costs for these TMDLs are thus likely to be an ove restimate.Page 187 of 221 estim ated unit costs based on the high end of typical TMDL development costs, plus an additional $6,000 for the second nutrient. Escalating to 2010 dollars, the high range of TMDL development cost of $212,000. For 24 to 46 TMDLs, total costs for incremental
TMD L development could be $1.1 million to $10. 2 million. FDEP currently operates its TMDL schedule on a five

- phase cycle that rotates through Florida’s five basins over five years. Under this schedule, completion of TMDLs for high priority waters will take 9 years; it will take an additional 5 years to complete the process for medium priority waters. Assuming all the incremental impairments are high priority and FDEP develops the new TMDLs over a 9

- year period, annual costs could be $ 0.1 to $1.1 million.
Shoul d the State of Florida submit current TMDL targets as Federal site specific alternative criteria (SSAC) for EPA review and approval, EPA believes it is reasonable to assume that information used in the development of the TMDLs will substantially reduce the time and effort needed to provide a scientifically defensible justification for such applications. If EPA’s assumption is incorrect and there were to be increased costs for the SSAC process, EPA expects that such cost underestimation would be cancelled ou t by continuing to include the costs of developing the scientifically based numeric targets for new TMDLs. Thus, EPA did not separately analyze any incremental costs associated with SSAC. Similarly, state and local agencies regularly monitor TN and TP in ambient waters. These data are the basis for the extensive IWR database maintained by the State of Florida. Because Florida is currently monitoring TN, TP, and chlorophyll

- aPage 188 of 221 concentrations in many waters, EPA assumed that the rule is unlikely to have a sig nificant impact on costs related to water quality monitoring activities.

E. DPVs EPA is proposing several options for DPVs. For this analysis , EPA assumed that the DPVs equal the numeric nutrient criteria for the segment to which the stream discharges

. If the State of Florida were to choose any of the other three proposed options for DPVs, then these costs may be over

- or underestimated. To estimate whether the DPVs are being met, EPA used the same minimum data requirements (e.g., four data points in one y ear with at least one data point each in summer and winter seasons) and attainment criteria (no more than one exceedance in a three

- year period) for evaluating the criteria. EPA used data from estuary pour points from any station within 500 feet of and wit hin the same WBID as the pour point. For south Florida pour points EPA did not use the data from the technical report, but used all data from the WBID in which the pour point is located to assess impairment. For this analysis, EPA assumed that any WBID con taining a pour point exceeding the criteria would be designated as impaired. EPA then identified the watersheds that contain or surround, in the case of coastal waters, those incrementally impaired WBIDs. See Appendix G of the economic analysis for more information. Table VI(E). Summary of Potential Incremental Costs Associated with DPVs Source Category Total Potential Incremental Annual Cost ($/year) Municipal Wastewater $ 29.4

- $29.6 Industrial Dischargers $0.0

Urban Stormwater $9.5

- $185.1 Agriculture $0.5

- $0.9 Septic Systems $2.0

- $3.0 Government/Program Implementation 1 $0.0

- $0.1 Total $ 41.4

- $ 218.6Page 189 of 221 1. Assuming 3 TMDLs for 13 WBIDs (approximately 4 WBIDs per TMDL) over a 9

- year period.

F. Summary of Costs Table VI(F) summarizes EPA's estimates of potential incremental costs associated with additional State and private sector activities to meet the numeric criteria supporting State designated uses. Note, these total costs include costs associated with unassessed waters. Because of uncertainties in the pollution controls ultimately implemented by the State of Florida, actual costs may vary depending on the site

- specific source reductions needed to meet the new numeric criteria.

Table VI(F). Summary of Potential Annual Costs 1 (2010 dollars) Sector Annual Cost (millions) 2 Municipal Wastewater $ 44.1

- $ 49.7 Industrial Dischargers $15.2

Urban Stormwater $131.9

- $330.9 Agriculture $0.3

- $0.7 Septic Systems $6.0

- $16.2 Government/Program Implementation (TMDLs) $0.1

- $1.1 Downstream Protection Values $ 41.4

- $ 218.6 Total $239.0

- $632.4 1. Includes costs for assessed, unassessed, and DPVs. 2

. Low end of range represents estimated costs under the assumption that none of the unassessed waters would be impaired under the proposed rule; high end of range represents costs associated with the assumption of proportional impairment of unassessed waters. EPA also calculated the potential costs to Florida households. Given the uncertainty regarding the magnitude of the estimated costs ultimately borne by households , EPA sought to minimize that uncertainty with a selective though matched set of potential costs and potentially affected households. Although GIS analysis could be used to overl ay maps of affected populations and facilities with incrementally impaired watersheds, a simpler more direct approach is to assume that all households in Florida are either served by a wastewater treatment plant or septic system, and pay taxes that would s upportPage 190 of 221 implementation programs conducted by the State. In addition, because the sector with the largest costs is urban stormwater, EPA decided to include this sector as well. Thus, EPA decided to look at the total costs of the two rules across all househ olds in Florida. Also, given the cost

- pass - through of agriculture costs and industrial costs to consumers outside the State of Florida, EPA did not consider them for the estimate of average costs per households in Florida. Therefore, EPA also calculated the total costs for municipal wastewater and stormwater controls, septic upgrades, and government/program implementation costs for both the proposed rule and the Inland rule and compared this sum to the total number of households in the State. This may und erestimate actual household costs if some costs are not borne equally by households statewide, but instead are concentrated within the watersheds for which controls are needed. EPA’s total estimated annual cost for compliance with this proposed rule, and t he Inland rule, represents $44 to $108 per household per year for both rules across all households in Florida. This equals $ 0.12 3.60 to $ 0.30 9 cents per day month per household in Florida. Please refer to Section 1 3 in the Economic Analysis for more information

. EPA also considered whether the potential costs of this proposed rule could result in employment impacts. Environmental regulations can both increase and decrease employment, and whether the net effect is po sitive or negative depends on many factors. See Chapter 13 of the Economic Analysis for further discussion.

G. Benefits Since elevated concentrations of nutrients in surface waters can result in adverse ecological effects, human health impacts, and negati ve economic impacts, EPA expects Comment [E46]: OMB edit to express costs as per month instead of per day.Page 191 of 221 the proposed numeric nutrient criteria to result in significant ecological, human health, and economic benefits to Florida. For example, excess nutrients in water can cause eutrophication, which can lead to harmful (sometim es toxic) algal blooms, loss of rooted plants, and decreased dissolved oxygen. In turn, these results can lead to adverse impacts on aquatic life, fishing, swimming, wildlife watching, camping, and drinking water. Excess nutrients can also cause: nuisance surface scum, reduced food for herbivorous wildlife, fish kills, alterations in fish communities, and unsightly shorelines that can decrease property values . Excessive nutrient loads can also lead to harmful algal blooms (HABs), which can cause a range of adverse human health effects including dermal, gastrointestinal, neurological, and respiratory problems, and in severe cases, may e ven result in fatalities

. Nutrient impairment is currently a major concern for many bays, estuaries, and coasts within the United States, and is particularly severe for many Florida waters. FDEP’s 2010 report identifies approximately 569 square miles (364,160 acres) of estuaries (a bout 23 percent of assessed estuarine area) and 102 square miles (65,280 acres) of coastal waters (about 1.5 percent of assessed coastal waters) as impaired by nutrients. These impairments may have a significant impact on the value of environmental goods and services provided by the affected waterbodies. For example, the losses of submerged aquatic vegetation resulting from eutrophication can have significant economic impacts

. In 2009, Florida seagrass communities supported an estimated harvest of $23 mill ion for just six species of commercial fish and shellfish. 232

232 Crist, C. 2010. Seagrass Awareness Month . Proclamation by the Governor Charlie Crist of the State of Florida. Florida Department of Environmental Protection. Comment [E47]: OMB edit accepted.Page 192 of 221 In Florida’s environment and economy, the tourism

- focused goods and services provided by its bays, estuaries, and coastal waters are particularly valuable. The tourism industry of Florida’s nears hore counties contributes approximately $12.4 billion (2004 dollars) to the State ’s economy annually. 233 Coral reefs are especially important contributors to Florida’s tourism sector. Reef

- related recreational expenditures on activities such as snorkeling, s cuba diving, fishing, and glass bottom boating in four counties in southeastern Florida for a one year p eriod in 2000

- 2001 totaled $5.4
billion. 234 The proposed rule will help reduce nitrogen and phosphorus concentrations in Florida’s estuaries, coastal wate rs and south Florida inland flowing waters. In turn, this reduction will improve ecological function and prevent further degradation that can result in substantial economic benefits to Florida citizens. EPA's economic analysis document describes in detail many of the potential benefits associated with meeting the numeric criteria in the proposed rule for nitrogen and phosphorus, including reduced human health risks, ecological benefits and functions, improved recreational opportunities, aesthetic enhancemen ts and others.

1. M onetized Benefits Estimate s Reducing nutrient concentrations will increase services provided by water resources to recreational users. For example, some coastal waters that are not usable for

233 NOEP. 2006. Coastal Economy Data

. National Ocean Economics Program. < www.oceaneconomics.org/Market/coastal/coastalEcon.asp >. 234 Johns, G.M., V.R. Leeworthy, F.W. Bell, and M.A. Bonn. 2001. Socioeconomic Study of Reefs in SoutheastFlorida . Final Report p repared by Hazen and Sawyer , Hollywood, FL, for Broward County, Palm Beach County, Miami

- Dade County, Monroe County, Florida Fish and Wildlife Conservation Commission, and National Oceanic and Atmospheric Administration

.Page 193 of 221 recreation may become available following implementation of the rule, thereby expanding recreation options for residential users and tourists. Other waters that are available for recreation can become more attractive for users by making recreational trips more enjoyable. Individuals may also take trips more frequently if they enjoy their recreational activities more. In addition to recreational improvements, the proposed rule is expected to generate nonuse benefits from bequest, altruism, and existence moti vations. Individuals may value the knowledge that water quality is being maintained, ecosystems are being protected, and populations of individual species are healthy, independently from any use value. EPA used a benefits transfer function based on meta

- a nalysis of surface water valuation studies to estimate both use and nonuse benefits from improvements in surface water. This approach is based on the method used to quantify nonmarket benefits in the 2009 Environmental Impact and Benefits Assessment for Fi nal Effluent Guidelines and Standards for the Construction and Development Category (EPA, 2009) , also used in the economic analysis of the Inland Rule. The approach quantifies benefits based on reach

specific baseline water quality and the estimated change in pollutant concentrations. The approach translates reductions in nutrients into an indicator of overall water quality (via a “water quality ladder,” or WQL) and valu es these improvements in terms of household willingness to pay (WTP) for the types of us es (e.g., as fishing and swimming) that are supported by different water quality levels. EPA calculated the baseline WQL scores for incrementally affected waters by comparing the water quality observations to criteria. For coastal waters, only Chl

- a crite ria are applicable, and for these waters, EPA estimated baseline WQL scores basedPage 194 of 221 on Chl

- a exceedances only. For other marine waters, EPA developed estimates of baseline water quality based on comparing the water quality observations to the applicable crit eria in the following order: 1) exceedances of proposed TN criteria; 2) exceedances of proposed TP criteria; and 3) exceedances of proposed Chl

- a criteria. The baseline WQL score is based on the percent exceedance of the applicable criterion value. EPA ass umes all incrementally impaired waters will meet the proposed criteria and estimated the potential changes for each waterbody. EPA estimated that up to 163 unassessed WBIDs may be incrementally impaired, but water quality data for these waters are not avai lable. To estimate the potential benefits associated with these potentially impaired unassessed waters, EPA estimated the same percent exceedance of the potentially impaired assessed waters. Because EPA’s estimates of monetized benefits only reflect the wa ter quality improvements for WBIDs, and not HUC

- 12s, these potential benefits are underestimated and should not be directly compared to costs , which include HUC

- 12 costs

. EPA then estimated monetized benefit values of these water quality improvements using benefit s transfer based on a meta

- regression of 45 studies that value water quality improvements in surface waters. Using the meta

- analysis EPA estimated a household WTP function with independent variables that characterize 1) the underlying study and methodology used, 2) demographic and other characteristics of the surveyed populations, 3) geographic region and scale, and 4) resource charact eristics and improvements. More details on the meta

- analysis can be found in the Economic Analysis. Using this function, EPA derived household WTP estimates for both full time and part time residents of the State

. EPA estimated that seasonal residents live in the State for approximately four months of the year; therefore EPA weighted household WTP valuesPage 195 of 221 for seasonal residents by one third . EPA then weighted household WTP estimates by the percentage of State water m iles that are expected to improve. EPA estimated total benefits by multiplying the weighted household WTP value with the total number of benefiting households. EPA estimated t he number of full time residents by dividing the total State population by averag e household size for the State as provided by the U.S. Census Bureau’s 2010 American Community Survey (U.S. Census Bureau, 2010). The number of part

- time households in Florida is based on Smith and House (2006), who used survey data to estimate the number, timing, and duration of temporary moves to Florida at peak seasons. EPA used the Smith and House (2006) results and U.S. Census Bureau (2010) statistics on household size to estimate the number of part

- time households in Florida . Total monetized benefits , including monetized benefits of unassessed waters, may be in the range from $ 39.0 million to $ 53.4 million annually, as shown in Table VI(F). The range reflects EPA’s assumptions regarding the location of unassessed waters that might be incrementally impa ired. Because EPA’s estimates of monetized benefits only reflect use and nonuse values associated with water quality improvements to Florida residents (full and part time), these potential benefits are likely un derestimated compared to costs. T he populati on considered in the benefits analysis of the rule does not include households outside of Florida that may also hold values for water resources in the State of Florida. Even if per household values for out

- of

- State residents are small, they may be signific ant in the aggregate if these values are held by a substantial number of out

- of

- State households. EPA notes that four times as many out

- of

- State and foreign tourists visit the State’s saltwater beaches each year as State residents do

. Not including out

- o f

- StatePage 196 of 221 residents in the analysis is likely to result in an underestimation of the total benefits of improved water quality. Although these monetized benefits estimates do not account for all potential economic benefits arising from the proposed rule, they help to demonstrate the economic importance of restoring and protecting Florida waters from the impacts of nitrogen and phosphorus pollution.

Table VI(F): Potential Annual State Benefits Associated with the Proposed Criteria Including Unassessed Waters ( 2010 dollars) WTP Estimate Average Benefit per Mile 1 Total Benefits (millions) 2 Lower 5% Bound $8,200 $17.2

- $23.6 Mean $18,500 $39.0

- $53.4 Upper 95% Bound $34,500 $72.5

- $99.4 1. Total benefits divided by 2,102 incrementally impaired assessed miles. 2. Benefits per mile times the number of incrementally impaired miles; based on between 2,102 and 2,882 potentially improved miles. The low end of the range represents assessed waters only, and the high end of the range includes unassessed waters.

VII . Statutory and Executive Order Reviews A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under E xecutive O rders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been docum ented in the docket for this action. Th is proposed rule does not establish any requirements directly applicable to regulated entities or other sources of nitrogen and phosphorus pollution. Moreover, existing narrative water quality criteria in State law al ready require that nutrients not be present in waters inPage 197 of 221 concentrations that cause an imbalance in natural populations of flora and fauna in estuaries and co astal waters in Florida and in s outh Florida inland flowing waters.
B. Paperwork Reduction Act This action does not impose an y direct new information collection burden under the provisions of the Paperwork Reduction Act , 44 U.S.C. 3501 et seq . Actions to implement these standards may entail additional paperwork burden. Burden is defined at 5 CFR 1320.3(b). This action does not include any information collection, reporting, or record

- keeping requirements.
C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility anal ysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities

. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any n ot

- for

profit enterprise that is independently owned and operated and is not dominant in its field. Comment [E48]: OMB edit accepted.

Comment [E49]: OMB edit accepted.Page 198 of 221 Under the CWA water quality standards program, states must adopt water quality standards for their waters and must submit those water quality standards to EPA for review and approval or disapproval ; if the Agency disapproves a state standard and the state does not adopt appropriate revisions to address EPA ’ s disapproval, EPA must promulgate standards consistent with the statutory and regulatory requireme nts. EPA also has the authority to promulgate water quality standards in any case where the Administrator determines that a new or revised standard is necessary to meet the requirements of the CWA

. S tate standards approved by EPA (or EPA

- promulgated standa rds) are implemented through various water quality control programs including the NPDES program, which limits discharges to navigable waters except in compliance with an NPDES permit. The CWA requires that all NPDES permits include any limits on discharges that are necessary to meet applicable water quality standards

. Thus, under the CWA, EPA ’ s promulgation of water quality standards establishes standards that the State of Florida implements through the NPDES permit
process. The State has discretion in dev eloping discharge limits, as needed to meet the standards. This proposed rule does not itself establish any requirements that are applicable to small entities. As a result of this action, the State of Florida will need to ensure that permits it issues incl ude any limitations on discharges necessary to comply with the standards established in the final rule. In doing so, the State will have a number of choices associated with permit writing (e.g., relating to compliance schedules, variances, etc.)

. While Flo rida ’ s implementation of the rule may ultimately result in new or revised permit conditions for some dischargers, including small entities, EPA ’ s action, by itself, does not impose any of these requirements on small entities ; that is, thesePage 199 of 221 requirements ar e not self

- implementing. Thus, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104

- 4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on s tate, local, and t ribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a
cost

- benefit analysis, for proposed and final rules that include a ” Federal mandate ” that
may result in expenditures to s tate, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. A “Federal mandate,” is any provision in federal statute or regulation that would impose an enforceable duty on State, local or Tribal governments or the private sector. 235 Before promulgating an EPA rule for which a written statement is needed under section 202 , section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost

- effective or le ast burdensome alternative that achieves the objectives of the rule. The provisions of section 205 (a) do not apply when they ar e inconsistent with law. Moreover, sec tion 205 (b) allows EPA to adopt an alternative other than the least costly, most cost

- effec tive or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including T ribal governments, it must

235 A “Federal mandate” does not incl ude conditions of Federal assistance and generally does not include duties arising from participation in a voluntary Federal program.Page 200 of 221 have developed under section 203 of the UMRA a small government agency pla n. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningf ul and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or T ribal governments or the private
sector

. As these water quality criteria are not self

- implementing, EPA’s proposed rule does not regulate or affect any entity

. Because t his proposed rule does not regulate or affect any entity , it therefore is not subject to the requirements of sections 202 and 205 of UMRA. EPA determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Moreover, water quality standards , including those promulgated here, apply broadly to dischargers and are not uniquely applicable to small governments. Thus, this proposed rule is not subject to the requirements of section 203 of UMRA.

E. Executive Order 13132 (Federalism) This action does not have federalism implications. It will not have substantial direct effects on the S tates, on the relationship between the national government and the
S tates, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132

. EPA’s authority and responsibility toPage 201 of 221 promulgate Federal water quality standards when s tate standards do not meet the requirements of the CWA is well established and has been used on various occasions in the past. The proposed rule w ould not substantially affect the relationship between EPA and the S tate s and T erritories, or the distribution of power or responsibilities between EPA and the various levels of government. The proposed rule w ould not alter Florida’s considerable discretion in implementing these water quality standards

. Further, this proposed rule w ould not preclude Florida from adopting water quality standards that EPA concludes meet the requirements of the CWA, either before or after promulgation of the final rule, which would eliminat e the need for Fe deral standards. Thus, Executive Order 13132 does not apply to this proposed rule. Although section 6 of Executive Order 13132 does not apply to this action, EPA communicat ed with the State of Florida to discuss the F ederal rulemaking process. In the spirit of Executive O rder 13132, and consistent with EPA policy to promote communications between EPA and S tate and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

F. Executive Order 13175 (Consultation and Coordinati on with Indian Tribal Governments) Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unle ss the Federal government provides the funds necessary to pay the direct compliance costs incurred by T ribal governments, or EPA consults with tribal officials early in the process of developing thePage 202 of 221 proposed regulation and develops a tribal summary impact statement. EPA has concluded that this action may have tribal implications. However, the rule will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. In the State of Florida, there are two Indian tribes, the Seminole Tribe of Florida and the Miccosukee Tribe of Indians of Florida, with flowing waters. Both t ribes have been approved for treatment in the same manner as a state (TAS) status for CWA sections 303 and 401 and have federally

- approved water quality st andards in their respective jurisdictions. These tribes are not subject to this proposed rule. However, this rule may impact the tribes because the numeric criteria for Florida will apply to waters adjacent to the tribal waters. EPA consulted with Tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. At a consultation teleconference held on March 1, 2012, EPA summarized the available information regarding this proposed rule, and requested comments on the proposal and its possible effects on tribal waters. Information relevant to this proposed action and the related Tribal consultation is posted on the EPA Tribal Portal site at http://www.epa.gov/tribal/consultation/index.htm

. EPA specifically solicits additional comment on this proposed rule from tribal officials.
G. Executive Order 13045 (Protection of Children From Environmental Hea lth and Safety Risks) This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency believesPage 203 of 221 that this rule will result in the reduction of environmental healt h and safety risks that could present a disproportionate risk to children.
H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use) This rule is not a “significant energy a ction” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) , because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer Advancement Act of 1995 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104

– 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory a ctivities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are develop ed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low

- Income Populations)Page 204 of 221 Executive Order (EO) 128 98 (Feb. 16, 1994) establishes F ederal executive policy on environmental justice. Its main provision directs F ederal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

- income populations in the United States. EPA has determined that this proposed rule does not have disproportionately high and adverse human health or environmental effects on minority or low

- income populations because it would afford a greater level of protection to both human health and the environment if these n umeric nutrient criteria are promulgated for Class I, Class II and Class III waters in the State of Florida.Page 205 of 221 Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Flor ida Inland Flow ing Waters; Proposed Rule Page 2 0 4 of 2 2 0 List of Subjects in 40 CFR Part 131
Environmental protection, W ater quality standards, Nitrogen and phosphorus pollution , N

utrients, Florida.

Dated: November 30 , 201 2

.

Lisa P. Jackson, Administrator

.

For the reasons set out in the preamble, EPA proposes to amend 40 CFR P art 131 as follows: PART 131

– WATER QUALITY STANDARDS 1. The authority citation for P art 131 continues to read as follows: Authority : 33 U.S.C. 1251 et seq
. Subpart D
- [Amended] 2 . Section 131.45 is added to read as follows:

§ 131. 45 Water Quality Standards for the State of Florida’s Estuaries, Coastal Waters, and South Florida Inland Flowing Waters (a) Scope

. This section promulgates numeric criteria for nitrogen and phosphorus pollution for Class I, Class II , and Class III waters in the State of Florida. This section also contains provisions for site

- specific alternative criteria.Page 206 of 221 (b) Definitions

. — (1) Canal means a trench, the bottom of which is normally covered by water with the upper edges of its two sides normally above water. (2 ) Coastal water means all marine waters that have been classified as Class II (Shellfish Propagation or Harvesting) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) water bodies pursuant to Section 62

- 302.400, F.A.C., extending to three nautical miles from shore that are not classified as estuaries. (3 ) Estuary means predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas include bays, mouths of rivers, and lagoons that have been classified as Class II (Shellfish Propagation or Harvesting) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) water bodies pursuant to Section 62

- 302.400, F.A.C., excluding w etlands. ( 4 ) Everglades Agricultural Area (EAA) means those lands described in Florida Statute Section 373.4592 (1994) subsection (15). ( 5 ) Everglades Protection Area (EvPA) means Water Conservation Areas 1 (which includes the Arthur R. Marshall Loxahatch ee National Wildlife Refuge ) , 2A, 2B, 3A, and 3B, and the Everglades National Park. ( 6 ) Inland f lowing waters means inland predominantly fresh surface water streams that have been classified as Class I (Potable Water Supplies) or Class III (Recreation,
Pro pagation and Maintenance of a Healthy, Well

- Balanced Population of Fish and Wildlife) water bodies pursuant to Section 62

– 302 .400, F.A.C., excluding wetlands (e.g. , sloughs)

.Page 207 of 221 (7) Marine Lake means a slow

- moving or standing body of marine water that occupies an inland basin that is not a stream, spring, or wetland. ( 8 ) Predominantly fresh waters m eans surface waters in which the chloride concentration at the surface is less than 1,500 milligrams per liter. ( 9 ) Predominantly marine waters means surface waters in which the chloride concentration at t he surface is greater than or equal to 1,500 milligrams per liter

. ( 10 ) South Florida inland flowing waters means inland flowing waters in the South Florida Nutrient Watershed Regio n, which encompasses the wa ters south of Lake Okeechobee , the Caloosahatchee River (including Estero Bay) watershed , and the St. Lucie watershed

. ( 1 1 ) State means the State of Florida, whose transactions with the U.S. EPA in matters related to 40 CFR 131.45 are administered by the Secretary, or officials delegated such responsibility, of the Florida Department of Environmental Protection (FDEP), or successor agencies. (1 2 ) Stream means a free

- flowing, predominantly fresh surface water in a defined channel, and i ncludes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies

. (1 3 ) Surface water means water upon the surface of the earth, whether contained in bounds created naturally or artificially or diffused. Water from natural sprin gs shall be classified as surface water when it exits from the spring onto the Earth's surface. (1 4 ) Tidal creek means a rela tively small coastal tributary with variable salinity that lie s at the transition zone between terrestrial uplands and the open est uary . (c) Criteria for Florida W aters.Page 208 of 221 (1 ) Criteria for E stuaries. The applicable t o tal nitrogen (TN), total phosphorus (TP), and chlorophyll a criteria for estuaries are shown i n Table 1

.

Table 1. EPA’s N umeric C riteria for Florida’s E stuaries (in geographic order
N orthwest to N ortheast ) Proposed Criteria

Perdido Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Upper Perdido Bay 0101 0.59 0.042 5.2 Big Lagoon 0102 0.26 0.019 4.9 Central Perdido Bay 0103 0.47 0.031 5.8 Lower Perdido Bay 0104 0.34 0.023 5.8

Pensacola Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Blackwater Bay 0201 0.5 3 0.022 3.9 Upper Escambia Bay 0202 0.43 0.025 3.7 East Bay 0203 0.50 0.021 4.2 Santa Rosa Sound 0204 0.3 4 0.018 4.1 Lower Escambia Bay 0205 0.4 4 0.02 3 4.0 Upper Pensacola Bay 0206 0.40 0.021 3.9 Lower Pensacola Bay 0207 0.34 0.020 3.6 Santa Rosa Sound 0208 0.33 0.020 3.9 Santa Rosa Sound 0209 0.36 0.020 4.9

Choctawhatchee Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Eastern Choctawhatchee Bay 0301 0. 47 0.0 2 5 8 .1 Central Choctawhatchee Bay 0302 0. 36 0.01 9 3.8
Western Choctawhatchee Bay 0303 0. 2 1 0.01 2 2.4Page 209 of 221 St. Andrews Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) East Bay 0401 0.31 0.014 4.6 St. Andrews Sound 0402 0.14 0.009 2.3 Eastern St. Andrews Bay 0403 0.24 0.021 3.9 Western St. Andrews Bay 0404 0.19 0.016 3.1 Southern St. Andrews Bay 0405 0.15 0.013 2.6 North Bay 1 0406 0.22 0.012 3.7 North Bay 2 0407 0.22 0.014 3.7 North Bay 3 0408 0.21 0.016 3.4 West Bay 0409 0.23 0.022 3.8 St. Joseph Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) St. Joseph Bay 0501 0. 25 0.0 18 3. 8

Apalachicola Bay SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg /L) St. George Sound 0601 0.53 0.019 3.6 Apalachicola Bay 0602 0.51 0.019 2.7 East Bay 0603 0.76 0.034 1.7 St. Vincent Sound 0605 0.52 0.016 11.9 Apalachicola Offshore 0606 0.30 0.008 2.3
Alligator Harbor SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Alligator Harbor 0701 0.36 0.011 2.8 Alligator Offshore 0702 0.33 0.009 3.1 Alligator Offshore 0703 0.33 0.009 2.9

Ochlockonee Bay + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Ochlockonee

- St. Marks Offshore 0825 0.79 0.033 2.7 Ochlockonee Offshore 0829 0.47 0.019 1.9 Ochlockonee Bay 0830 0.66 0.037 1.8 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) St. Marks River Offshore 0827 0.51 0.022 1.7 St. Marks River 0828 0.55 0.030 1.2Page 210 of 221 Big Bend/ Apalachee Bay + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Econfina Offshore 0824 0.59 0.028 4.6 Econfina 0832 0.55 0.032 4.4 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Fenholloway 0822 1.15 0.44 4 1.9 Fenholloway Offshore 0823 0.48 0.034 10.3
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Steinhatchee

Fenholloway Offshore 0821 0.40 0.023 4.1

SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Steinhatchee River 0819 0.67 0.077 1.0 Steinhatchee Offshore 0820 0.34 0.018 3.5
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Steinhatchee Offshore 0818 0.39 0.032 4.8
Suwannee River + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Suwannee Offshore 0817 0.78 0.0 49 5.2

Springs Coast + SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Waccasassa River Offshore 0814 0.38 0.019 3.9 Cedar Keys 0815 0.32 0.019 4.1 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Crystal River 0812 0.35 0.013 1.3 Crystal

- Homosassa Offshore 0813 0.36 0.013 2.1 Homosassa River 0833 0.47 0.032 1.9 SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (ug/L) Chassahowitzka River 0810 0.32 0.010 0.7Page 211 of 221 Chassahowitzka River Offshore 0811 0.29 0.0 09 1.7
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Weeki Wachee River 0808 0.32 0.010 1.6 Weeki Wachee Offshore 0809 0.30 0.009 2.1
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Pithlachascotee River 0806 0.50 0.022 2.4 Pithlachascotee Offshore 0807 0.32 0.011 2.5
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Anclote River 0804 0.48 0.037 4.7 Anclote Offshore 0805 0.31 0.011 3.2 Anclote Offshore South 0803 0.29 0.008 2.6

Lake Worth Lagoon / Loxahatchee SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) North Lake Worth Lagoon 1201 0.55 0.067 4.7 Central Lake Worth Lagoon 1202 0.57 0.089 5.3 South Lake Worth Lagoon 1203 0.48 0.034 3.6
SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower Loxahatchee 1301 0. 68 0.0 28 2. 7 Middle Loxahatchee 1302 0. 98 0.0 44 3. 9 Upper Loxahatchee 1303 1. 25 0.0 72 3.6

St. Lucie SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower St. Lucie 1401 0.58 0.045 5.3 Middle St. Lucie 1402 0.90 0.12 0 8.4 Upper St. Lucie 1403 1.22 0.197 8.9 Indian River Lagoon SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L)Page 212 of 221 Mosquito Lagoon 1501 1.1 8 0.0 78 7.5 Banana River 150 2 1.17 0.0 36 5.7 Upper Indian River Lagoon 150 3 1.63 0.0 74 9.2 Upper Central Indian River Lagoon 150 4 1.33 0. 076 9.2 Lower Central Indian River Lagoon 150 5 1. 12 0. 117 8.7 Lower Indian River Lagoon 150 6 0.49 0.0 37 4.0

Halifax River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Upper Halifax River 1601 0.75 0. 243 9.4 Lower Halifax River 1602 0. 63 0. 167 9. 6 Guana, Tolomato, Matanzas, Pellicer SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Upper GTMP 1701 0. 77 0. 144 9.5 Lower GTMP 1702 0.53 0.108 6.1

Lower St. Johns River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower St. Johns River 1801 0.75 0.095 2.5 Trout River 1802 1.09 0.108 3.6 Trout River 1803 1.15 0.074 7.7

Nassau River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower Nassau 1901 0.33 0.113 3.2 Middle Nassau 1902 0.40 0.120 2.4 Upper Nassau 1903 0.75 0.125 3.4

St. Marys River SEGMENT SEGMENT ID TN * (mg/L) TP * (mg/L) Chl

- a * 1 (μg/L) Lower St. Marys River 2002 0.27 0.045 3.0 Middle St. Marys River 2003 0.44 0.036 2.7

1 Chlorophyll a is defined as corrected chlorophyll, or the concentration of chlorophyll a remaining after the chlorophyll degradation product, phaeophytin a , has been subtracted from the uncorrected chlorophyll a measurement. * For a given water body, the annual geometric mean of TN, TP , or chlorophyll a , concentrations shall not exceed the applicable criterion concentration more than once in a three

- year period. + In these four areas (collectively referred to as the “Big Bend region ”), coastal and estuarine waters are combined. Criteria for the Big Bend region apply to the coastal and estuar ine waters in that region.Page 213 of 221 (2 ) Criteria for Tidal Creeks

. The applicable t o tal nitrogen (TN), total phosphorus (TP), and chlorophyll a criteria for predominantly marine tidal creeks are shown i n §131.45(c)(1), Table 1

. The applicable TN and TP criteria for predominantly freshwater tidal creeks are shown in Table 2.

Table 2 . EPA’s N umeric C riteria for Florida’s Predominantly Freshwater Tidal Creeks

Nutrient Watershed Region Instream Protection Value Criteria TN (mg/L) * TP (mg/L) * Panhandle West a 0.67 0.06 Panhandle East b 1.03 0.18 North Central c 1.87 0.30 West Central d 1.65 0.49 Peninsula e 1.54 0.12 Watersheds pertaining to each Nutrient Watershed Region (NWR) were based principally on the NOAA coastal, estuarine, and fluvial drainage areas with modifications to the NOAA drainage areas in the West Central and Peninsula Regions that account for unique watershed geologies. F or more detailed information on regionalization and which WBIDs pertain to each NWR, see the Technical Support Document.
a Panhandle West region includes: Perdido Bay Watershed, Pensacola Bay Watershed, Choctawhatchee Bay Watershed, St. Andrew s Bay Watersh ed, Apalachicola Bay Watershed. b Panhandle East region includes: Apalachee Bay Watershed, and Econfina/Steinhatchee Coastal Drainage Area. c North Central region includes the Suwannee River Watershed. d West Central region includes: Peace, Myakka, Hillsbor ough, Alafia, Manatee, Little Manatee River Watersheds, and small, direct Tampa Bay tributary watersheds south of the Hillsborough River Watershed. e Peninsula region includes: Waccasassa Coastal Drainage Area, Withlacoochee Coastal Drainage Area, Crystal /Pithlachascotee Coastal Drainage Area, small, direct Tampa Bay tributary watersheds west of the Hillsborough River Watershed, Sarasota Bay Watershed, small, direct Charlotte Harbor tributary watersheds south of the Peace River Watershed, Caloosahatchee Ri ver Watershed, Estero Bay Watershed, Kissimmee River /Lake Okeechobee Drainage Area , Loxahatchee/St. Lucie Watershed, Indian River Watershed, Daytona/St. Augustine Coastal Drainage Area, St. John s River Watershed, Nassau Coas tal Drainage Area, and St. Mary s River Watershed. * For a given water body, the annual geometric mean of TN or TP concentrations shall not exceed the applicable criterion concentration more than once in a three

- year period.
(3 ) Criteria for Marine Lakes

.Page 214 of 221 The applicable total nitrogen (TN), total phosphorus (TP) and c hlorophyll a criteria for marine lakes are shown i n Table 3

.

Table 3 . EPA’s N umeric C riteria for Florida’s Marine Lakes Long Term Average Lake Color a and Alkalinity EPA Final Chl

- a b,*

μg/L EPA Final TN and TP Criteria [Range] TN mg/L TP mg/L Colored lakes c 20 1.27 [1.27

- 2.23] 0.05 [0.05

- 0.16] Clear lakes, high alkalinity d 20 1.05 [1.05

- 1.91] 0.03 [0.03

- 0.09] Clear lakes, low alkalinity e 6 0.51 [0.51

- 0.93] 0.01 [0.01

- 0.03]
a Platinum

- cobalt units (PCU) assessed as true color free from turbidity b Chl

- a is defined as corrected chlorophyll, or the concentration of chl

- a remaining after the chlorophyll degradation product, phaeophytin a, has been subtracted from the uncorrected chl

- a measurement. c Long

- term color > 40 PCU and alkalinity > 20 mg/L CaCO 3 d Long

- term color ≤ 40 PCU and alkalinity > 20 mg/L CaCO 3 e Long

- term color ≤ 40 PCU and alkalinity ≤ 20 mg/L CaCO 3 * For a water body, the annual geometric mean of chl

- a, TN or T P concentrations shall not exceed the applicable criterion concentration more than once in a three

- year period.
( 4 ) Criteria for C oastal W aters. The applicable c hlorophyll a criteria for coastal waters are shown i n Table 4

.

Table 4 . EPA’s N umeric C riteria for Florida’s C oastal W aters Coastal Region Coastal Segment + Approximate Location Chlorophyll RS - a 1 * (mg/m 3 )

Panhandle 1 Alabama border 2.41 2 Pensacola Bay Pass 2.57 3 1.44 4 1.16 5 1.06 6 1.04 7 1.14 8 Choctawhatchee Bay Pass 1.23 9 1.08Page 215 of 221 10 1.09 11 1.11 12 1.18 13 1.45 14 St. Andrew s Bay Pass 1.74 15 St. Joseph Bay Pass 2.75 16 2.39 17 Southeast St. Joseph Bay 3.47

West Florida Shelf 18 3.96 19 Tampa Bay Pass 4.45 20 3.37 21 3.25 22 2.95 23 2.79 24 2.98 25 3.24 26 Charlotte Harbor 4.55 27 4.22 28 3.67 29 4.16 30 5.7 0 31 4. 54 32 4 .03 33 Fort Myers 4.61

Atlantic Coast 34 Biscayne Bay 0.92 35 0.2 6 36 0.26 37 0.2 4 38 0.2 1 39 0.21 40 0.2 0 41 0.2 0 42 0.2 1 43 0.2 5 44 0. 57 45 St. Lucie Inlet 1.08 46 1. 42 47 1. 77 48 1. 55 49 1. 44 50 1. 53 51 1. 31 52 1. 40 53 1. 80 54 Canaveral Bight 2.73 55 2.33 56 2.28 57 2.06 58 1.92 59 1.76 60 1.72Page 216 of 221 61 2.04 62 1.92 63 1.86 64 1.95 65 2.41 66 2.76 67 2.8 0 68 3.45 69 Nassau Sound 3.69 70 3.78 71 Georgia border 4.22 1 Chlorophyll RS - a is remotely sensed calculation of chlorophyll a concentrations. * For a given water body, the annual geometric mean of the chlorophyll a concentration shall not exceed the applicable criterion concentration more than once in a three

- year period. + Please see TSD for location of Coastal Segments (Volum e 2: Coastal Waters, Section 1.3)

. ( 5 ) Criteria for S outh Florida I nland F lowing W aters. The applicable criteria for s outh Florida inland flowing waters that flow into downstream estuaries include the downstream protection value (DPV) for t o tal nitrogen (TN) and total phosphorus (TP) derived pursuant to the provisions of §131.45(c)( 6 ). These criteria are not applicable to waters within the lands of the Miccosukee and Seminole Tribes, the Everglades Protection Area (EvPA) , or the Everglades Agricultural
Ar ea (EAA). ( 6 ) Criteria for P rotection of D ownstream E stuaries and S outh Florida marine

waters
. (i) A downstream protection value (DPV) for stream tributaries that flow into a downstream estuar y or south Florida marine water ( i.e., downstream water) is the allowable concentration of total nitrogen (TN) and/or total phosphorus (TP) applied at the point of entry into the downstream water . The applicable DPV for any stream flowing into a downstream water shall be determined pursuant to paragraphs (c)( 6 ) (ii), (iii), (iv), or (v) of this section. The methods available to derive DPVs should be considered in the order listed. Contributions from stream tributaries upstream of the point of entry location must result in attainment of the DPV at the point of ent ry into the downstream water . IfPage 217 of 221 the DPV is not attained at the point of entry into the downstream water , then the collective set of streams in the upstream watershed does not attain the DPV, which is an applicable water quality criterion for the water seg ments in the upstream watershed. The State or EPA may establish additional DPVs at upstream tributary locations that are consistent with attaining the DPV at the point of entry into the downstream water . The State or EPA also have discretion to establish D PVs to account for a larger watershed area (i.e., include waters beyond the point of reaching water bodies that are not streams as defined by this rule). (ii) In instances where available data and/or resources provide for use of a scientifically defensible and protective system

- specific application of water quality simulation models with results that protect the designated uses and meet all applicable numeric nutrient criteria for the downstream water , the State or EPA may derive the DPV for TN and TP from use of a system

- specific application of water quality simulation models. The State or EPA may designate the wasteload and/or load allocations from a TMDL established or approved by EPA as DPV(s) if the allocations from the TMDL will protect the downstream water's designated uses and meet all applicable numeric nutrient criteria for the downstream water

. (iii) When the State or EPA has not derived a DPV for a stream pursuant to paragraph (c)( 6 )(ii) of this section, and where a reference condition approach is used to derive the downstream water’s TN, TP and chlorophyll a criteria , then the State or EPA may derive the DPV for TN and TP using a reference condition approach based on TN and TP concentrations from the stream pour point, coincident in time with the data record from which the downstream receiving water segment TN and TP criteria were developed ,Page 218 of 221 and using the same data screens and reference condition approach as were applied to the downstream water’s data

. (iv) When the State or EPA has not derived a DPV pursuant to paragraph (c)( 6 )(ii) or (c)( 6 )(iii) of this section, then the State or EPA may derive the DPV for TN and TP using dilution models based on the relationship between salinity and nutrient concentrations. (v) When the State or EPA has not deri ved a DPV pursuant to paragraph (c)( 6 )(ii) , (c)( 6 )(iii), or (c)( 6 )(iv) of this section, then the DPV for TN and TP is the applicable TN and TP criteria for the receiving segment of the downstream water as described in §131.45(c)(1) , or as described in Section 62

- 302.532(a)

- (h), F.A.C. for downstream waters where EPA

- approved State criteria apply

. (v

i ) The State and EPA shall maintain a record of DPVs they derive based on the methods described in paragraphs (c)( 6 )(ii) , (iii), (iv), and ( v ) of this sectio n, as well as a record supporting their derivation, and make such records available to the public. The State and EPA shall notify one another and provide a supporting record within 30 days of derivation of DPVs pursuant to paragraphs (c)( 6 ) (i), (ii) , (iii) , (i v ) , or (v) of this section. DPVs derived pursuant to these paragraphs do not require EPA approval under Clean Water Act § 303(c) to take effect. (d) Applicability

. ( 1) The criteria in paragraph s (c)(1) through ( 6 ) of this section apply to certain Clas s I, Class II , and Class III waters in Florida, and apply concurrently with other applicable water quality criteria, except when: (i) State water quality standards contain criteria that are more stringent for a particular parameter and use;Page 219 of 221 (ii) The Regional Administrator determines that site

- specific alternative criteria apply pursuant to the procedures in paragraph (e) of this section; or (iii) The State adopts and EPA approves a water quality standards variance to the Class I , Class II, or Class II I designated use pursuant to §131.13 that meets the applicable provisions of State law and the applicable Federal regulations at §131.10. (2) The criteria established in this section are subject to the State's general rules of applicability in the same way and to the same extent as are the other Federally

- adopted and State

- adopted numeric criteria when applied to the same use classifications. (e) Site

- specific A lternative C riteria

. (1) The Regional Administrator may determine that site

- specific alternative criteria shall apply to specific surface waters in lieu of the criteria established in paragraph (c) of this section. Any such determination shall be made consistent with §131.11. (2) To receive consideration from the Regional Administrator for a determin ation of site

- specific alternative criteria, an entity shall submit a request that includes proposed alternative numeric criteria and supporting rationale suitable to meet the needs for a technical support document pursuant to paragraph (e)(3) of this sect ion. The entity shall provide the State a copy of all materials submitted to EPA, at the time of submittal to EPA, to facilitate the State providing comments to EPA. Site

- specific alternative criteria may be based on one or more of the following approaches

. (i) Replicate the process for developing the estuary criteria in paragraph (c)(1) of this section.Page 220 of 221 (ii) Replicate the process for developing the tidal creek criteria in paragraph (c)(2) of this section. (iii) Replicate the process for developing the m arine lake criteria in paragraph (c)(3) of this section. (iv) Replicate the process for developing the coastal criteria in paragraph (c)( 4 ) of this section. ( v ) Replicate the process for developing the south Florida inland flowing water criteria in para graph (c)( 5 ) of this section. (v

i ) Conduct a biological, chemical, and physical assessment of water body conditions. (vi i ) Use another scientifically defensible approach protective of the designated

use. (3) For any determination made under paragraph (e )(1) of this section, the Regional Administrator shall, prior to making such a determination, provide for public notice and comment on a proposed determination. For any such proposed determination, the Regional Administrator shall prepare and make availabl e to the public a technical support document addressing the specific surface waters affected and the justification for each proposed determination. This document shall be made available to the public no later than the date of public notice issuance. (4) The Regional Administrator shall maintain and make available to the public an updated list of determinations made pursuant to paragraph (e)(1) of this section as well as the technical support documents for each determination.Page 221 of 221 (5) Nothing in this paragraph (e) shall limit the Administrator's authority to modify the criteria in paragraph (c) of this section through rulemaking. (f) Effective date. This section is effective [ date 60 days after publication of final rule ].