# CHAPTER 2 Issue Category: Alternative Regulatory Approaches and Implementation Mechanisms Pages 4447 - 4567

Response to Public Comments Water Quality Standards for the State of Florida's Lakes and Flowing Waters

November 14, 2010

40 CFR Part 131 Docket #: EPA-HQ-OW-2009-0596

This document is part of a larger documentChapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

# V - ALTERNATIVE REGULATORY APPROACHES AND IMPLEMENTATION MECHANISMS No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.


# V.A - DESIGNATING USES Comment ID 0900-1.001.003
Author Name: Milstrey G. Organization: Bureau of Water Assessment and Management, New York State Department of Environmental Conservation III. Linkage of proposed criteria to support of designated use(s): Does USEPA believe that the proposed criteria for Florida will be supportive of potable water and recreational use in the respective waters ?; and (b) In the case of criteria derivation for lakes, it would appear that the USEPA approach has little if any linkage to support of any specific designated use (e.g., potable water, recreation, protection of aquatic life). Rather, it appears premised on supporting some given trophic status designation - oligotrophy in the case of "clearacidic" waters and mesotrophy in the case of both "clear-alkaline" waters and "colored" lakes. Has USEPA attempted to link a given trophic designation to specific designated use so as to strengthen the linkage, or alternatively (and preferably) to link nutrient indices more directly to designated uses (e.g., potable water, recreation, and protection of aquatic life)?



# Comment ID 1292-1.001.028
Author Name: Wiegand P. Organization: National Council for Air and Stream Improvement, Inc. In the context of numeric nutrient criteria, the same framework can be applied to evaluate the likelihood that a measured value of a causal variable will correctly indicate DU impairment status (see USEPA 2008a, Chapter 8 for additional discussion of this concept). In this case, the above framework is used to describe the relationship between causal and response variables, in which the causal variable is used as a basis for making decisions about whether the response variable DU threshold is truly exceeded or not (note that uncertainty in measured chlorophyll a relative to true chlorophyll a for purposes of this discussion is assumed to be 0). For example, the process for establishing EPA's proposed TP criterion for colored lakes establishes chlorophyll a as the response variable, a threshold of 20 ug/L to define the boundary between 19 DU attainment (non-impaired condition) and non-attainment (impaired condition), and a statistical correlation between TP concentration and chlorophyll a to establish the proposed TP criterion. Here, a baseline TP concentration criterion (as an annual geometric mean) for colored lakes is used to indicate impairment of a DU defined by chlorophyll a concentrations exceeding 20 ug/L (Figure 3.1).

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Table 7 of the DQO guidance can be modified to reflect the causal-response variable relationship, as shown in Table 3.2. Original comment letter contains additional data in Figure 3.1 Figure 1-11, Panel A of EPA TSD, with Horizontal Line at 20ug/L Chlorophyll a Added to Show Proposed Chlorophyll a Criterion from the comment report of the National Council for Air and Stream Improvement, Inc. (NCASI) relating to EPA's January 26, 2010 proposal of numeric nutrient water quality criteria for lakes and flowing waters in the State of Florida. See original comment letter. Original comment letter contains additional information in Table 3.2. Modifications to DQO Guidance Table 7 to Reflect Application to Nutrient Criteria Development regarding lakes from the comment report of the National Council for Air and Stream Improvement, Inc. (NCASI) relating to EPA's January 26, 2010 proposal of numeric nutrient water quality criteria for lakes and flowing waters in the State of Florida. See original comment letter. 

# Comment ID 1350-1.001.013
Author Name: Schwartz J. Organization: American Forest & Paper Association E. Designated Uses EPA's review of the use attainability analysis (UAA) provisions available to change a designated use is helpful. 75 Fed. Reg. 4217. It is extremely difficult to obtain a UAA, as it is viewed by the public as "downgrading" the water. Thus obtaining a designated use change through a UAA must fairly be considered a difficult and long-term task. When dischargers are planning compliance with the proposed criteria, they cannot count on obtaining a UAA to ensure compliance with the Proposal. 

# Comment ID 1352-1.001.026
Author Name: Herr M. Organization: Polk County Recreational Value of Polk County Lakes Recreational uses can be easily quantified to confirm whether or not designated uses are being met via simple information-gathering techniques pertaining to the various usergroups. Documenting the number of visitors to one particular lake, or tracking the number of fishing licenses issued in certain lake regions, for example, are good indicators that some recreational uses are being met. Again, it is clearly evident that a great many lakes throughout Polk County are meeting their designated uses despite their status as "impaired". This suggests that current and proposed water quality thresholds do not coincide with the protection of designated uses. Moreover, setting nutrient criteria that satisfy both a fishable and swimmable standard is a poor management ideal. As stated in the EPA nutrient criteria external peer review document:

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The [fishable/swimmable goal] leads to an impossible management situation that the best swimming lakes are clear unproductive lakes and the best fishing lakes are generally green productive lakes. A great weakness [of the rule] is that fish are not considered and if they were considered, a low nutrient standard would not favor fishable (unknown author, 2009). 

# Comment ID 1352-1.001.028
Author Name: Herr M. Organization: Polk County Trophic State and Sport Fishing Bass fishing in Polk County is extremely popular as indicated by the bulleted points above. There is ample evidence that eutrophic and hypereutrophic lakes support a diverse assemblage of fish and a higher percentage of Largemouth Bass than that of lakes with lower trophic states. For example, in the University of Florida IFAS "Information Circular 110": total fish abundance, mean fish species richness, and sportfish abundance are seemingly positively correlated to an increasing trophic status. Although the variability in this relationship is too high to state it is always the case; the circular does mention that "no critical points on the trophic spectrum can be identified that cause dramatic changes in fish abundance and standing crops (UF IFAS Information Circular 110, 2007)". Moreover, in their journal article discussing the relationships between eutrophication and sport fish in Lake Tohopekaliga, Bonvechio and Bonvechio state "sport fish standing stock [in the lake] generally peaks at TP concentrations over 100 ug/L (2006)". There are many more published studies that suggest high trophic levels can and do support a relatively greater abundance of sportfish. To that end, the fishable designated use is certainly not supported by severely restricting nutrient levels in lakes and, in Polk County, fishable lakes are the most preferred. Public Perception Of course, Polk County recognizes that recreational uses other than fishing are important to our citizens. However, it should be noted that the public perception of the overall recreational value of a lake is highly variable (Hoyer, Brown and Canfield, 2004). Hoyer, Brown and Canfield's study of lake users' public perception of lakes based on certain characteristics such as chlorophyll levels illustrates this fact. For example, based on an extensive survey it was evident that "lake users located in areas dominated by eutrophic lakes are more likely to tolerate green water and consider it good water quality (Hoyer, Brown and Canfield 2004). This point is particularly relevant in Polk County where many lakes were eutrophic even before human settlement. Overall, this is just another example ofhow our lakes can and do meet their designated uses despite their exceedances of both established and proposed nutrient thresholds. 

# Comment ID 1355-2.001.002
Author Name: Barker V. Organization: Brevard County Board of County Commissioners CONCLUSIONS

11/19/2010 02:48 PM EST 2-4449Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms In general, EPA should demonstrate that the implementation of these proposed criteria will result in protection of designated uses and provide assurances that unnecessary burdens will not be imposed on water resource management agencies based on potential biases in the estimates. 

# Comment ID 1359-1.001.015
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition D. Changing Designated Uses. EPA acknowledges that its proposed criteria apply to Class I (potable water supply) and Class III (recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife) waters and would not apply to any waters from which designated uses have been removed. In particular, EPA notes that a designated use change may be appropriate for certain Florida canals. 75 Fed. Reg. at 4217. The State of Florida currently is revising its regulations to refine its classification of State waters. The proposed new classification system recognizes that artificial or altered waterbodies often have physical or habitat conditions that would prevent the attainment of full Class III uses. This new classification system is likely to lead to changes to the classification of many canals and man-made lakes. These proposed changes in classifications are further support for delaying or deferring implementation of the Federal criteria, as discussed above. Expending scarce resources to try to meet designated uses that are inappropriate for a water body is not good social, economic, or environmental policy. 

# Comment ID 1359-1.001.055
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition Second, any federal criteria must meet the requirements of EPA's water quality standards regulations. This means the criteria must be set at a level that is necessary to protect designated uses (40 C.F.R. 131.2), must be based on a "sound scientific rationale," (40 C.F.R. 131.11(a)), and must be developed using "scientifically defensible methods" (40 C.F.R. 131.11(b)). Accordingly, for specific waterbodies, EPA must establish on a cause-and-effect relationship between the nutrient being controlled and the biological response that affects the designated use. In addition, for each waterbody, EPA must establish the threshold below which additional nutrient reductions will result in harm. 

# Comment ID 1464-1.001.018
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al.

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C. Designating Uses In this section of the notice, EPA describes the process of use designation and the Use Attainability Analyses (UAA) process, which is used to remove or change designated uses, citing key aspects of EPA's existing regulations. As we understand it, EPA's proposal is to allow temporary removal of designated uses of Florida water bodies. However, it is important to keep in mind the longer term CWA goals, and to work to expand designated uses in those water bodies in the decades to come. We urge EPA to provide explicit recommendations and possible rule language regarding four matters related to the use of UAAs: (1) the mandatory requirement to protect existing uses that are not designated; (2) the need to protect existing uses in a meaningful way in any UAA process by requiring Florida to prepare an antidegradation implementation method for UAAs; (3) the danger of "categorical" UAAs that fail to evaluate and protect downstream uses; and (4) the requirement to implement "cost-effective and reasonable best management practices" for nonpoint sources in the context of a UAA. First, EPA should emphasize the existing requirement to evaluate uses every three years where removing a use wouldhave negative impacts on overall water quality goals. 40 C.F.R. §131.20(a). We are not aware of any state that has "reexamined every three years" "any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act" to see if new information has become available that those uses are attainable. See id. Yet EPA's 1998 consideration of possible changes to its water quality standards regulations stated that this regulation "establishes a mandatory upgrading of uses which are existing but not designated." Water Quality Standards Regulation; [Advanced Notice of] Proposed Rule 63 Fed. Reg. 36741 (July 7, 1998) at 36759 (emphasis added)("ANPRM"). In addition, existing regulations also require states to revise standards "to reflect the uses actually being attained" where "existing water quality standards specify designated uses less than those which are presently being attained." 40 C.F.R. § 131.10(i). Despite these two provisions, states do not routinely consider upgrading their lower quality use designations in light of any water quality improvements. Second, it is essential that in a context, such as this, where EPA may allow a state to engage in a large scale postponement of water quality standards implementation that it caution the state against dropping beneath the "absolute floor" the existing use provision requires. See Questions and Answers On: Antidegradation, EPA Office of Water, Regulations and Standards, August 1985 at 4. We therefore urge that EPA give specific attention to the need for Florida to develop an explicit method of identifying existing uses. This method must represent more than a guess or an assumption that water quality has not degraded in the last 35 years. It must rely on historical data and anecdotal information where data are not available. Third, EPA indicates that it will accept a "categorical" use attainability analysis for Florida waters with similar characteristics and constraints on attainability. EPA states that there must be sufficient information to demonstrate that such individual waters could be categorized but it does not identify ways in which such supposedly obvious categories, such as canals, are likely to differ from each other. Taking canals, the one example EPA mentions, the notice fails to point out the State's obligation to distinguish between canals where uses by humans have not taken place since 1975 and canals where activities such as recreation by children, use by wildlife, or use by migrant workers have taken place (whether planned for or not). Nor does EPA note that its own regulations require that use designations "take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters." 40 C.F.R. § 131.10(b). There is no mention of how designated uses of canals can be removed, for example, while properly taking into consideration the waters immediately downstream of those canals.

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Finally, as stated twice in EPA regulations, states may not remove use designations where attainment of those uses"can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and costeffective and reasonable best management practices for nonpoint source control." 40 C.F.R. §§ 131.10(d), 131.10(h)(2). Here again, EPA should provide adequate guidance to states. Guidance is needed on how to identify what "cost-effective and reasonable best management practices" are for the purposes of establishing or changing designated uses pursuant to these sections. 

# Comment ID 1464-2.001.019
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. Outstanding waters and other sensitive waters may require additional criteria in the future - U.S. EPA or FDEP should develop criteria in the future to protect outstanding waters and other sensitive waters. Florida has designated Outstanding Florida Waters and Outstanding National Resource Waters, including Class I and Class III waters, which are to be afforded "the highest protection" from degradation (FDEP 2008, pp. 10, 34). U.S. EPA or FDEP should determine whether additional criteria are needed to protect these waters. 

# Comment ID 1474-1.001.019
Author Name: Herz W. Organization: The Fertilizer Institute D. Changing Designated Uses. EPA acknowledges that its proposed criteria apply to Class I (potable water supply) and Class III (recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife) waters and would not apply to any waters from which designated uses have been removed. In particular, EPA notes that a designated use change may be appropriate for certain Florida canals. 75 Fed. Reg. at 4217. The State of Florida currently is revising its regulations to refine its classification of State waters. The proposed new classification system recognizes that artificial or altered waterbodies often have physical or habitat conditions that would prevent the attainment of full Class III uses. This new classification system is likely to lead to changes to the classification of many canals and man-made lakes. These proposed changes in classifications are further support for delaying or deferring implementation of the Federal criteria, as discussed above. Expending scarce resources to try to meet designated uses that are inappropriate for a water body is not good social, economic, or environmental policy. 

# Comment ID 1474-1.001.098
Author Name: Herz W.

11/19/2010 02:48 PM EST 2-4452Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: The Fertilizer Institute Moreover, EPA's approach to criteria derivation is not "scientifically defensible" as the criteria are not based upon an impairment threshold. Criteria are intended to be set at the level "necessary to protect uses." 40 C.F.R. 131.2. Florida law also requires that criteria be set at an impairment threshold. 75 Fed. Reg. at 4184-84. EPA has confounded this analysis by using an approach that presumes that maintaining existing water quality is required to protect uses. However, there are no data or analyses in the administrative record that confirm this approach is either necessary or appropriate to protect uses. In essence, EPA is inappropriately applying antidegradation concepts to criteria derivation. By definition, antidegradation considerations may be triggered when water quality is better than necessary to protect uses. 40 C.F.R. 131.12. Antidegradation is not based on a "cause-and-effect" analysis that is the scientific basis for criteria derivation. 

# Comment ID 1474-1.001.106
Author Name: Herz W. Organization: The Fertilizer Institute Finally, by proposing criteria for TN without establishing whether or not nitrogen is causing impairment, EPA is proposing criteria that are not necessary to protect designated uses, again contravening 40 C.F.R. 131.2. 

# Comment ID 1482-1.001.024
Author Name: Hecker J. Organization: Conservancy of Southwest Florida Downgrading Uses The preamble of EPA's proposal discusses downgrading use classifications of Florida waters as a means of avoiding the application of the nutrient criteria. FDEP is in the process of adopting designated use classification changes and has recently proposed a new Class Ill Limited designated use, which would allow for downgrading waters based on the physical characteristics of the waterbody alone. The Conservancy and other stakeholders have submitted significant comments to FDEP concerning the proposal, and we have participated in several workshops on the proposal (copy of 3/10/10 comments attached).Currently, FDEP does not have a UAA procedure consistent with 40 CFR 131.10(g) in its rules. Overall, the changes currently being made by the Florida Department of Environmental Protection (FDEP) to Florida's designated use classifications (Rule 62-302.400) are premature prior to the adoption of the proposed EPA nutrient numeric criteria for Florida waters, including estuaries. We have submitting detailed comment to FDEP (see Appendix 18, Conservancy's 311 1/10 letter to FDEP) how we believe the changes as proposed are flawed and not in accordance with the Clean Water Act. We have included a synopsis of our concerns below in order for EPA to understand how the FDEP rule would undermine numeric nutrient criteria.

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The current proposal, although it makes it clear that reclassification should not allow for the "lowering of existing water quality nor result in the nonattainment of water quality standards in downstream waters," would still allow water quality standards in upstream waterbodies to be lower than their downstream waterbody counterparts. Creating lower standards in waterbodies closest to pollutant sources will undermine the ability to require additional source control requirements. Less source control transfers pollution control costs from the private sector to pollution clean-up costs paid for by the public sector, i.e. the taxpayers. Furthermore, we continue to have concerns about how DEP would interpret the UAA requirements in the proposed rule. 

# Comment ID 1482-1.001.043
Author Name: Hecker J. Organization: Conservancy of Southwest Florida Most positive for the issue of source controls, the current version of the draft DEP rule incorporates the requirement that a use cannot be downgraded unless it "cannot be attained by implementing effluent limits required by sections 301 (b) and 306 of the Federal Clean Water Act in conjunction with implementation of cost-effective and reasonable best management requirements for nonpoint source pollution control." The inclusion of this provision might assuage our concerns, but for the fact the Technical Support Document, as discussed below, proposes that DEP would determine that a use is not attainable simply by virtue of the physical characteristics of the waterbody, such as the fact that it is a canal, essentially bypassing the analysis of source controls. We are also concerned that the SSAC that would be considered for the purposes of downgrading to Class Ill might also include lower criteria for other parameters beyond those for which the Class Ill uses cannot be attained. 

# Comment ID 1482-1.001.044
Author Name: Hecker J. Organization: Conservancy of Southwest Florida We also still believe that (5)(a) and (b) in the proposed classification rule change should be better defined. The wholly artificial waterbodies definition should state excavation from "uplands," and "uplands" should be defined. We oppose adding "or filled" to the altered waterbodies description, as was done in the 2/15/10 draft. We understand from the 2/22/10 workshop that FDEP would use this term to include dams or weirs placed in waters, which would expand the scope of Class Ill Limited to many more waters than previously discussed. Additionally, the draft rule would establish a new Class Ill Limited use classification without concurrent water quality criteria - including numeric nutrient criteria. Water quality criteria would only be adopted later on a case-bycase basis through Site Specific Alternative Criteria. This would violate the CWA and EPA rules. The CWA requires that whenever the state revises or adopts a new standard, such revised or new standard shall be submitted to the EPA. The CWA explicitly states that "such revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S.C. § 1313(c)(Z)(A).

11/19/2010 02:48 PM EST 2-4454Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Moreover, 40 C.F.R. § 131.6 plainly states that both "use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act" and "water quality criteria sufficient to protect the designated uses" "must be included in each State's water quality standards submitted to EPA for review." Finally, 40 C.F.R. § 131.5(a)(2) makes it clear that EPA must consider in deciding whether to approve or disapprove state-revised water quality standards, "whether the state has adopted criteria that protect the designated water uses." It is clear that the criteria must be submitted concurrently with the new designated uses. 

# Comment ID 1482-1.001.046
Author Name: Hecker J. Organization: Conservancy of Southwest Florida As far as economic considerations, there is no legal basis for requiring as in the current proposed rule that there be "consideration of environmental, technological, social, economic, and institutional factors" for assessing upstream and downstream effects or for a public interest test for upgrading to a classification that is already being attained, This would also be inconsistent with one of the basic goals of the Clean Water Act, which is to restore the quality of the nation's waters. [21] The FDEP draft rule should be amended to make it clear that FDEP will, on its own initiative, upgrade waters where the higher use is presently being attained without the considerations and public interest test specified in the draft rule. Another issue with the FDEP proposed rule, and which EPA notes in numeric nutrient criteria proposal that it will accept is a "categorical" use attainability analysis for waters with similar characteristics and constraints on attainability. EPA urges that there must be sufficient information to demonstrate that such individual waters could be categorized but it stops short of identifying ways in which such supposedly obvious categories, such as canals, are likely to differ from each other. Taking canals, the one example EPA mentions, the notice fails to point out the State's obligation to distinguish between canals where uses that humans have not planned for may, in fact, be taking place, such as recreation by children, use by wildlife, or use by migrant workers. Nor does EPA note that its own regulations require that use designations "take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters." [22] There is no mention of how canals, for example. could be given downgraded uses, as a category unto themselves, while still taking into consideration the waters immediately downstream of those canals. Surely EPA does not intend to suggest that all waters downstream are as similar in their uses and criteria as the canals might be themselves. Overall, FDEP rulemaking on classification changes and EPA approval of any such changes should be postponed until final adoption of EPA numeric nutrient criteria for Florida, including the estuarine criteria. Nutrients are frequently mentioned as one of the target parameters for downgrading uses of artificial and man-altered water bodies. The interpretation of the narrative nutrient criterion used today to determine whether waterbodies can attain their designated uses may not be comparable to the numeric criteria being developed by EPA. Enacting a lower use classification for upstream waterbodies prior to estuarine numeric nutrient standards being adopted would inherently undermine any ability to ensure those downstream standards are met. Without estuarine numeric nutrient criteria in place to provide quantitative nutrient pollution standards, it is not possible to ensure that the downstream water quality standard for nutrients would be protected. Because of the effects of nutrients, particularly nitrogen, on estuaries, it is extremely

11/19/2010 02:48 PM EST 2-4455Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms important that EPA's numeric criteria for estuaries are in place before any UAA to downgrade or Class Ill Limited SSAC are considered. [21] 33 U.S.C. & 1251(a) states: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." [22] 40 C.F.R. § 131.10(b)


# Comment ID 1530.001.023
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority An UAA is typically a very long and time consuming process. At the end of the process there is a new "use" and usually new "criteria." While the UAA is being developed, EPA's proposed numeric criteria would be in place and Florida would be required to use these criteria to establish NPDES permit limits. 

# Comment ID 1530.001.039
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority XII. THE EPA'S DISCUSSION IN SECTION V OF THE PROPOSED RULE, TITLE ALTERNATIVE REGULATORY APPROACHES AND IMPLEMENTATION MECHANISMS, AND SECTION VI, TITLED PROPOSED RESTORATION WATER QUALITY (WQS) PROVISION, ARE INSUFFICIENT AND MUST BE REDRAFTED AND RE-PROPOSED TO SATISFY THE DICTATES OF NOTICE AND COMMENT RULEMAKING.
A. Section V - Alternative Regulatory Approaches and Implementation Mechanisms. Section V of the preamble provides information about a number of tools available to States for implementing and establishing WQS. The entire section is significantly flawed and must be re-drafted and re-proposed to provide all stakeholders the basic information about the numerous assumptions built into the use of these tools. Without this basic information, stakeholders cannot analyze and comment on this section. As currently drafted, all of these tools seem available at any time to be used by the State, EPA, or permittees. Past experience with EPA rules and procedures indicate that these tools may, in reality, not be available due to differences in interpretation by individuals. This is why appropriate implementation procedures are important. The following comments first address the overall problem with this section and then discuss individual concerns about each piece. Section V of the preamble to the Proposed Rule, discusses designating uses, variances, site specific criteria and

11/19/2010 02:48 PM EST 2-4456Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms compliance schedules. The section does not explain how each of these would be used based on a very specific and different set of assumptions. For instance, "designating uses" was done when the WQS were first established by the State when the CWA was amended in 1972 (possibly before the 1972 amendments). Section V is actually dealing with "changing" already established designated uses. Section V provides a discussion of UAAs, but does not provide much in the way of discussion of what may trigger the use of an UAA or what assumptions must be met. Further, the section would benefit.from a transitional discussion that explains that there are generally two types of changes to designated uses: permanent and temporary, and the temporary are handled through variances. This would help to explain that when using a UAA whether for a permanent change or a temporary change, the focus is on the assumption the use may not be attainable. Often variances are used in order to provide time to determine if a permanent change may be needed to the use. The next two parts of Section V address water quality criteria. In this case, the assumption is the use is attainable, but the criteria set to protect the use may be wrong or may require time to achieve. In the case of site-specific criteria, there are data that indicate the local ambient water has a different chemical/physical makeup than what was assumed when the criteria were set statewide for this designated use. A compliance schedule is used when it is determined the designated use for the water body is correct, criteria to protect the use of the water body is correct, but it will take the discharger time to meet the effluent limits established in the permit (the criteria is expressed in the form of permit limits and the compliance schedule is another form of the effluent limit). 

# Comment ID 1530.001.040
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority i. Section V.A. - Designating Uses In this section, EPA states, "EPA interprets the Federal WQS regulation to allow states to conduct a 'categorical' UAA under 40 CFR 131.1 O(g) for such waters." Is this a first interpretation or has EPA made this finding before? If this has been interpreted before, then EPA should provide a citation. Otherwise, EPA must provide a more detailed explanation as to why they have made this interpretation because the language in the regulation does not simply or logically lead to the same conclusion. 

# Comment ID 1616-1.001.003
Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida A. Designating Uses In this section of the notice, EPA describes the process of use designation and the Use Attainability Analyses (UAA) process, which is used to downgrade designated uses, citing key aspects of EPA's existing regulations. While as we

11/19/2010 02:48 PM EST 2-4457Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms understand EPA's proposal, EPA's interest is in downgrading, albeit temporarily, Florida's water quality goals, it is important this many decades since the Act's passage not to lose sight of longer term Clean Water Act goals, namely that in the decades to come we should be working to upgrade those goals. In other words, where removing or downgrading a use would have negative impacts on overall water quality goals, EPA should ensure there is a concurrent commitment to upgrading designated uses. For this reason, we urge EPA in its proposed rule to provide explicit recommendations and possible rule language in four areas related to the use of UAAs to downgrade current use designations. These four areas are: (1) emphasizing the mandatory requirement to upgrade existing uses that are not designated; (2) emphasizing the need to take protection of existing uses seriously in any UAA process by requiring Florida to prepare an antidegradation implementation method that specifies how it will identify existing uses prior to engaging in UAAs; (3) removing the proposed opportunity for Florida to develop so-called "categorical" UAAs because, at a minimum, such UAAs will not be able to evaluate the impact on downstream uses and the water quality necessary to fully support them; and (4) requiring that Florida demonstrate the water quality outcome expected from "cost-effective and reasonable best management practices" for nonpoint sources as part of its UAAs. First, EPA should emphasize the existing requirement to evaluate uses every three years where removing or downgrading a use would have negative impacts on overall water quality goals. 40 C.F.R. §131.20(a). We are not aware of any State that has "re-examined every three years" "any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act" to see if new information has become available that those uses are attainable. Id. Yet EPA's 1998 consideration of possible changes to its water quality standards regulations stated that this regulation "establishes a mandatory upgrading of uses which are existing but not designated." Water Quality Standards Regulation; [Advanced Notice of] Proposed Rule 63 Fed. Reg. 36741 (July 7, 1998) at 36759 (emphasis added)("ANPRM"). In addition, existing regulations also require States to revise standards "to reflect the uses actually being attained" where "existing water quality standards specify designated uses less than those which are presenting being attained." 40 C.F.R. § 131.20(i). Despite these two provisions, there is no indication that states routinely consider upgrading their lower quality use designations in light of any water quality improvements. The reason for this is likely that EPA has not reminded states of the mandatory aspect of these regulations and because EPA has not required states to have procedures to ensure this upgrading takes place. We are aware of only one state with such procedures to identify existing uses that have not been designated, to maintain a list of such uses, and to incorporate them into use designations at the next triennial review: Pennsylvania. See Water Quality Antidegradation Implementation Guidance, Pennsylvania Dept. of Envtl. Protection, November 29, 2003, available at http://www.elibrary.dep.state.pa.us/dsweb / Get/Document-47704/391-0300-002.pdf. Where, as here, States and EPA routinely ignore existing regulations that are directly implicated in a new program or approach, it makes sense for EPA to bring attention to those requirements and explain how they should be carried out. In addition, EPA should require States to gather the information that could be used to assess future attainability under these provisions in order to give meaning to Section 131.20. Second, while EPA mentions the requirements to protect "existing uses" in the UAA process in other sections of the notice, and cites the relevant federal regulations, EPA does not emphasize requirement to protect existing uses in nearly every regulatory action in which this protection is implicated - e.g., use designations, UAAs, TMDLs, and the issuance of NPDES permits - and EPA has provided very little guidance to States on exactly how they should identify existing uses dating to November 28, 1975. Because EPA has largely ignored this provision, and has not required States to have antidegradation implementation plans and methods, as currently required, to protect existing uses, States routinely ignore the requirements to protect existing uses in both the UAA and the antidegradation Tier I protections. 40 C.F.R. §§ 131.12(a), 131.12(a)(1). As a result, States routinely undermine the fundamental requirement

11/19/2010 02:48 PM EST 2-4458Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms to maintain the status quo as of 1975, or any time better, that is required by both the Clean Water Act and EPA's own regulations. Id.; 33 U.S.C. § 1251(a)(the CWA's overarching goal is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters). It is essential that in a context, such as this, where EPA may allow a state to engage in a large scale postponement of water quality standards implementation and pointing out the State's opportunities for downgrading its use designations, that it not allow the State to drop beneath the "absolute floor" the existing use provision requires. Questions and Answers on: Antidegradation, EPA Office of Water, Regulations and Standards, August 1985 at 4. However, without a specific focus on how to ensure the protection of those existing uses, their protection will most assuredly be disregarded. We therefore urge that EPA give specific attention to the need for Florida to develop an explicit method of identifying existing uses. This method must represent more than a guess or an assumption that water quality has not degraded in the last 35 years. It must rely on historical data and anecdotal information where data are not available. Third, EPA notes that it will accept a "categorical" use attainability analysis for Florida waters with similar characteristics and constraints on attainability. EPA urges that there must be sufficient information to demonstrate that such individual waters could be categorized but it stops short of identifying ways in which such supposedly obvious categories, such as canals, are likely to differ from each other. Taking canals, the one example EPA mentions, the notice fails to point out the State's obligation to distinguish between canals where uses that humans have not planned for may, in fact, have taken place since 1975, such as recreation by children, use by wildlife, or use by migrant workers. Nor does EPA note that its own regulations require that use designations "take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters." 40 C.F.R. § 131.10(b). There is no mention of how canals, for example, could be given downgraded uses, as a category unto themselves, while still taking into consideration the waters immediately downstream of those canals. Surely EPA does not intend to suggest that all waters downstream are as similar in their uses and criteria as the canals might be themselves. Finally, as stated twice in EPA regulations, States may not remove use designations where attainment of those uses"can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and costeffective and reasonable best management practices for nonpoint source control." 40 C.F.R. §§ 131.10(d), 131.10(h)(2). Here again, EPA has not yet provided guidance to States on how to identify what "cost-effective and reasonable best management practices" are for the purposes of establishing or changing designated uses pursuant to these sections, yet this is a critical step in the process. (It is worth noting that the very same language in this provision, "cost-effective and reasonable best management practices for nonpoint source control," is included in the Tier II antidegradation requirements for which States are required to have antidegradation implementation methods. 40 C.F.R. §§ 131.12(a), 131.12(a)(2). We are not aware of any state that has defined these practices or that has incorporated this required element into its Tier II antidegradation reviews.) Without guidance, or ensuring those regulations are adequately and completely incorporated into the provisions proposed by EPA for Florida, there is no reason to believe that Florida will, in fact, ensure that it does not eliminate or downgrade designated uses that "can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices for nonpoint source control." EPA has also not provided sufficient guidance to States on how to evaluate compliance with effluent limits required under CWA sections 301(b) and 306. This particular finding bears heavily on the purpose of the restoration standards proposed by EPA discussed below. 

# Comment ID 1768-1.001.006

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Author Name: Armingeon N. Organization: St. Johns River Keeper

• Unfortunately, there are numerous loopholes already incorporated into the Clean Water Act, such as re-designating uses, variances and site-specific criteria. These are designed to be used in very exceptional situations and where it is demonstrated to be publicly warranted and specifically approved by EPA. We ask EPA to be clear that the NNS proposal does not contain or intend any expansion on current rules. We believe that any departure from 40 CFR 122.44(d), which requires that no new or expanded discharge may be permitted that would cause or contribute to violations of water quality standards, would be illegal and unwarranted. 

# Comment ID 1768-1.001.013
Author Name: Armingeon N. Organization: St. Johns River Keeper Designated Uses.

• EPA describes the process of use designation and Use Attainability Analyses (UAA) process which is used to downgrade designated uses, citing key aspects of EPA's existing regulations. In other words, where removing or downgrading a use would have negative impacts on overall water quality goals, EPA should ensure there is a concurrent commitment to upgrading uses. SJRK urges the EPA in its proposed rule to provide explicit recommendations and possible rule language in three areas related to the use of UAAs to change (downgrade) current use designations. 

# Comment ID 1768-1.001.014
Author Name: Armingeon N. Organization: St. Johns River Keeper

• The EPA mentions the existing requirements to protect "existing uses" in the UAA process in other sections of the notice, and cites the relevant federal regulations, but EPA does not emphasize the importance of this provision. If the EPA proposes to allow Florida to engage in a large-scale postponement of water quality standards implementation, that it not allow the state to drop beneath the "absolute floor" the existing use provision requires. 

# Comment ID 1768-1.001.015
Author Name: Armingeon N. Organization: St. Johns River Keeper

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• We support EPA's concept that the current designated uses would remain as the ultimate designated uses under the restoration standard proposal. We strongly support EPA's statement that any interim designated uses would have to meet the requirements in current EPA rules that existing uses be protected and that some minimum point and nonpoint source controls be required. 

# Comment ID 1784-1.001.003
Author Name: Cunningham T. Organization: Gainesville Regional Utilities 4. The proposed FDEP water use reclassification rule recognizes urban impacts to streams and provides a basis for developing achievable nutrient criteria. The reclassification process should be implemented. 

# Comment ID 1784-1.001.037
Author Name: Cunningham T. Organization: Gainesville Regional Utilities 4. The proposed FDEP water use reclassification rule recognizes urban impacts to streams and provides a basis for developing achievable nutrient criteria. The reclassification process should be implemented. 

# Comment ID 1786-1.001.050
Author Name: Kirk K. Organization: National Association of Clean Water Agencies

• EPA's proposal notes that the federal standards regulations allow states to conduct "categorical" use attainability analyses (UAAs) for certain waters, such as the canal network in Florida, that have similar hydrologic and morphological characteristics, which can be "characterized as a group and where the necessary level of protection may differ substantially from other lakes or flowing waters within the state." 

# Comment ID 1786-1.001.058
Author Name: Kirk K. Organization: National Association of Clean Water Agencies Several potential regulatory mechanisms may be used to address water quality. This includes existing regulatory

11/19/2010 02:48 PM EST 2-4461Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms mechanisms such as compliance schedules, site-specific criteria, variances, and UAAs. Other alternatives are treatment technology standards, restoration standards, and the Chesapeake Bay Program approach. Each of these approaches have their pros and cons, but independently fall short of meeting the needs of all stakeholders. 

# Comment ID 1797-1.001.010
Author Name: Braswell S. Organization: Florida Farm Bureau IV. Inadequate Alternative Regulatory ApproachesThe EPA attempted to fashion four relief mechanisms in the proposed rule, including: designating uses, variances, sitespecific criteria, and compliance schedules. However, the proposed relief mechanisms are ineffective or impractical under Florida law. In order for any relief mechanisms to be undertaken, the state would have to go through rulemaking in accordance with Florida's Administrative Procedure Act.[19]

a.� Designating Uses The EPA notes in the proposed rule that, "FDEP has recently restarted an effort to refine the State's current designated use classifications."[20] However, the FDEP proposed re-classifications of designated use is an ongoing process that may result in no change to the current designated uses. Therefore, designating uses is currently an inadequate alternative regulatory approach.

[19] Fla. Stat. Ch. 120 (2009) [20] Water Quality Starts for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4217 (proposed January 26, 2010) (to be codified at 40 C.F.R. pt. 131). 

# Comment ID 1801-1.001.005
Author Name: Green III K. Organization: St. Johns River Water Management District General Comments 1. If they are adopted, EPA's proposed numeric nutrient criteria will not provide appropriate levels of protection of designated uses in Florida's lakes, rivers, and streams. For many water bodies, the proposed criteria will fail to protect designated uses while for many other water bodies, especially the larger ones, they will require unnecessarily stringent regulation of nutrients.

a. For many of Florida's waters, EPA's proposed numeric nutrient criteria will not protect designated uses. EPA's

11/19/2010 02:48 PM EST 2-4462Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms proposed numeric criteria would allow eutrophication of hundreds of oligotrophic lakes and, consequently, allow a significant reduction in the diversity of trophic states in Florida's lakes. Because the trophic state gradient is a major source of overall aquatic biodiversity, the proposed criteria would not protect the biodiversity of Florida's aquatic life. This failure of the criteria violates one of the designated uses of Class III waters - "propagation and maintenance of a healthy, well-balanced population of fish and wildlife." (Fla. Admin. Code 62-302.400) 

# Comment ID 1810-1.001.017
Author Name: Young L. Organization: Clean Water Network of Florida Section V: Alternative Regulatory Approaches and Implementation Mechanisms As described in our comments on Section VI below, concerning EPA's proposed Restoration Standards, we urge EPA to focus particular attention on our comments in this section concerning variances and site specific criteria, as well as our comments on the use of the Use Attainability Analysis as it may be implemented in Florida.
A. Designating Uses In this section of the notice, EPA describes the process of use designation and the Use Attainability Analysis (UAA) process, which is used to downgrade designated uses, citing key aspects of EPA's existing regulations. While as we understand EPA's proposal, EPA's interest is in downgrading, albeit temporarily, Florida's water quality goals, it is important this many decades since the Act's passage not to lose sight of longer term Clean Water Act goals, namely that in the decades to come we should be working to upgrade those goals. In other words, where removing or downgrading a use would have negative impacts on overall water quality goals, EPA should ensure there is a concurrent commitment to upgrading designated uses. For this reason, we urge EPA in its proposed rule to provide explicit recommendations and possible rule language in four areas related to the use of UAAs to downgrade current use designations. These four areas are: (1) emphasizing the mandatory requirement to upgrade existing uses that are not designated; (2) emphasizing the need to take protection of existing uses seriously in any UAA process by requiring Florida to prepare an antidegradation implementation method that specifies how it will identify existing uses prior to engaging in UAAs; (3) removing the proposed opportunity for Florida to develop so-called "categorical" UAAs because, at a minimum, such UAAs will not be able to evaluate the impact on downstream uses and the water quality necessary to fully support them; and (4) requiring that Florida demonstrate the water quality outcome expected from "cost-effective and reasonable best management practices" for nonpoint sources as part of its UAAs. First, EPA should emphasize the existing requirement to evaluate uses every three years where removing or downgrading a use would have negative impacts on overall water quality goals. 40 C.F.R. §131.20(a). We are not aware of any State that has "re-examined every three years" "any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act" to see if new information has become available that those uses are attainable. Id. Yet EPA's 1998 consideration of possible changes to its water quality standards regulations stated that this regulation "establishes a mandatory upgrading of uses which are existing but not designated." Water Quality Standards Regulation; [Advanced Notice of] Proposed Rulemaking 63 Fed. Reg. 36741 (July 7, 1998) at 36759 (emphasis added)("ANPRM").

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In addition, existing regulations also require States to revise standards "to reflect the uses actually being attained" where "existing water quality standards specify designated uses less than those which are presently being attained." 40 C.F.R. § 131.20(i). Despite these two provisions, there is no indication that states routinely consider upgrading their lower quality use designations in light of any water quality improvements. The reason for this is likely that EPA has not reminded states of the mandatory aspect of these regulations and because EPA has not required states to have procedures to ensure this upgrading takes place. We are aware of only one state with such procedures to identify existing uses that have not been designated, to maintain a list of such uses, and to incorporate them into use designations at the next triennial review: Pennsylvania. See Water Quality Antidegradation Implementation Guidance, Pennsylvania Dept. of Envtl. Protection, November 29, 2003, available at http://www.elibrary.dep.state.pa.us/dsweb / Get/Document-47704/391-0300-002.pdf. Where, as here, States and EPA routinely ignore existing regulations that are directly implicated in a new program or approach, it makes sense for EPA to bring attention to those requirements and explain how they should be carried out. In addition, EPA should require States to gather the information that could be used to assess future use attainability under these provisions in order to give meaning to Section 131.20. Second, while EPA mentions the requirements to protect "existing uses" in the UAA process in other sections of the notice, and cites the relevant federal regulations, EPA does not emphasize the importance of this provision. Here too, States and EPA have consistently ignored the requirement to protect existing uses in nearly every regulatory action in which this protection is implicated - e.g., use designations, UAAs, TMDLs, and the issuance of NPDES permits - and EPA has provided very little guidance to States on exactly how they should identify existing uses dating to November 28, 1975. Because EPA has largely ignored this provision, and has not required States to have antidegradation implementation plans and methods, as currently required, to protect existing uses, States routinely ignore the requirements to protect existing uses in both the UAA and the antidegradation Tier I protections. 40 C.F.R. §§ 131.12(a), 131.12(a)(1). As a result, States routinely undermine the fundamental requirement to maintain the status quo as of 1975, or any time better, that is required by both the Clean Water Act and EPA's own regulations. Id.; 33 U.S.C. § 1251(a)(the CWA's overarching goal is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters). It is essential that in a context such as this, where EPA may allow a state to engage in a large scale postponement of water quality standards implementation and pointing out the State's opportunities for downgrading its use designations, that it not allow the State to drop beneath the "absolute floor" the existing use provision requires. Questions and Answers on: Antidegradation, EPA Office of Water, Regulations and Standards, August 1985 at 4. However, without a specific focus on how to ensure the protection of those existing uses, their protection will most assuredly be disregarded. We therefore urge that EPA give specific attention to the need for Florida to develop an explicit method of identifying existing uses. This method must represent more than a guess or an assumption that water quality has not degraded in the last 35 years. It must rely on historical data and anecdotal information where data are not available. Third, EPA notes that it will accept a "categorical" use attainability analysis for Florida waters with similar characteristics and constraints on attainability. EPA urges that there must be sufficient information to demonstrate that such individual waters could be categorized but it stops short of identifying ways in which such supposedly obvious categories, such as canals, are likely to differ from each other. Taking canals, the one example EPA mentions, the notice fails to point out the State's obligation to distinguish between canals where uses that humans have not planned for may, in fact, have taken place since 1975, such as recreation by children, use by wildlife, or use by migrant workers. Nor does EPA note that its own regulations require that use designations "take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the

11/19/2010 02:48 PM EST 2-4464Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms water quality standards of downstream waters." 40 C.F.R. § 131.10(b). There is no mention of how canals, for example, could be given downgraded uses, as a category unto themselves, while still taking into consideration the waters immediately downstream of those canals. Surely EPA does not intend to suggest that all waters downstream are as similar in their uses and criteria as the canals might be themselves. Finally, as stated twice in EPA regulations, States may not remove use designations where attainment of those uses"can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and costeffective and reasonable best management practices for nonpoint source control." 40 C.F.R. §§ 131.10(d), 131.10(h)(2). Here again, EPA has not yet provided guidance to States on how to identify what "cost-effective and reasonable best management practices" are for the purposes of establishing or changing designated uses pursuant to these sections, yet this is a critical step in the process. (It is worth noting that the very same language in this provision, "cost-effective and reasonable best management practices for nonpoint source control," is included in the Tier II antidegradation requirements for which States are required to have antidegradation implementation methods. 40 C.F.R. §§ 131.12(a), 131.12(a)(2). We are not aware of any state that has defined these practices or that has incorporated this required element into its Tier II antidegradation reviews.) Without guidance, or ensuring those regulations are adequately and completely incorporated into the provisions proposed by EPA for Florida, there is no reason to believe that Florida will, in fact, ensure that it does not eliminate or downgrade designated uses that "can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices for nonpoint source control." EPA has also not provided sufficient guidance to States on how to evaluate compliance with effluent limits required under CWA sections 301(b) and 306. This particular finding bears heavily on the purpose of the restoration standards proposed by EPA discussed below. 

# Comment ID 1834-4.001.005
Author Name: Bronson C. Organization: Florida Department of Agriculture and Consumer Services 7.Confirmation of actual impairment of a designated use should be required before a site is considered impaired. 

# Response
Comment ID 0900-1.001.003 Response: Under the Clean Water Act and EPA’s implementing regulations, numeric nutrient standards must protect the designated use of a waterbody (as well as ensure protection of downstream uses) and must be based on sound scientific rationale. EPA and FDEP scientists have completed a substantial body of scientific work to determine the appropriate numeric nutrient criteria to protect Florida’s lakes and flowing waters designated for Class I (Potable Water Supplies) or Class III (Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife) designated uses; EPA is, therefore, finalizing criteria based on such sound science to protect Florida’s waters. Florida may choose to re-evaluate the criteria and develop site-specific alternative criteria where Florida believes different nutrient

11/19/2010 02:48 PM EST 2-4465Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms criteria are appropriate to account for site-specific conditions. Please refer to section V.C Site-Specific Alternative Criteria for a discussion of site-specific alternative criteria (SSAC) as an alternative values to criteria set forth in this final rule that would be applied on a watershed, area-wide, or water-body specific basis that meet the regulatory test of protecting the instream designated use, having a basis in sound science, and ensuring the protection and maintenance of downstream WQS. SSAC may be more or less stringent than the otherwise applicable federal numeric criteria. In either case, because the SSAC must protect the same designated use and must be based on sound science (i.e., meet the requirements of 40 CFR 131.11(a)), there is no need to modify the designated use or conduct a use attainability analysis (UAA). Please refer to the preambles to the proposed and final rules, as well as the associated Technical Support Documents (TSD), for a discussion of how EPA developed appropriate numeric nutrient criteria and why EPA believes the criteria are scientifically defensible and protective of applicable designated uses. In particular, refer to section I.B Which Water Bodies Are Affected By This Rule and III Numeric Criteria for Streams, Lakes, and Springs in the State of Florida for a discussion of where the promulgated numeric nutrient criteria for lakes and flowing waters apply. Please refer to section III.C(2)(g) for a discussion of the derivation of EPA’s numeric criteria for lakes based on a stressor-response relationship used to estimate the relationship between nitrogen/phosphorus concentrations and a response measure that is either directly or indirectly related to the designated use (in this case, chl-a as a measure of attaining a balanced natural population of aquatic flora and fauna). The concentrations that support the designated use can be derived from the estimated relationship. In the case of Florida, the use of this approach is supported by a substantial Florida-specific database of high quality information, sound scientific analysis and technical evaluation. EPA is promulgating criteria for colored lakes, clear, high alkalinity lakes and low alkalinity lakes that are supportive of natural balanced populations of aquatic flora and fauna in these classes of Florida’s lakes.

Comment ID: 1292-1.001.028 Response: EPA appreciates the decision error analysis presented for the lakes criteria. EPA generally found the lakes analysis to be relevant and technically appropriate, and supportive of the approach for both baseline and modified criteria. [In fact, it is these low error rates (<5%) for false negatives (i.e., TP < criteria & chl-a > criteria: what they call "beta") and false positives (i.e., TP > criteria & chl-a < criteria: what they call "alpha") that are associated with the 50th percentile prediction interval that make it misleading for us to refer to these percentiles as the "75th percentile" of a distribution because it seems to imply a 25% error rate, which is not the case] However, EPA found the streams analysis less convincing because factors other than nutrients affect SCI. Moreover, EPA acknowledges that some streams can carry a higher nutrient load without adverse consequences (e.g., have an SCI score <40) because of their location and physical and hydrologic attributes, but these streams may be upstream of more sensitive downstream locations. Establishing an SCI distribution-based criterion at the 75th percentile represents an appropriate balance between representing the vast majority of streams in a nutrient watershed region without introducing a significant non-protective bias from streams most likely to be insensitive. Where appropriate, site-specific alternative criteria can address "incorrect" decisions. The type of decision error analysis the commenter used for streams criteria is not relevant and incomplete with respect to necessary considerations to establish protective criteria for streams.

Comment ID: 1350-1.001.013

11/19/2010 02:48 PM EST 2-4466Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Response: Refer to the response to comment ID 1530.001.023.

Comment ID: 1352-1.001.026 Response: EPA disagrees with the commenter’s statement that “documenting the number of visitors to one particular lake, or tracking the number of fishing licenses issued in certain lake regions...are good indicators that some recreational uses are being met.” EPA also disagrees with the commenter’s statement that “setting nutrient criteria that satisfy both a fishable and swimmable standard is a poor management ideal.” EPA believes the Clean Water Act (CWA) intended for states to manage their waters in a way that balances water quality so that both fishing and swimming can safely occur, where both types of uses are attainable. The “use” of a waterbody means a particular function of, or activity in, a water of the U.S., such as fishing or swimming. Section 101(a)(2) of the CWA sets as one of the goals of the Act the “protection and propagation of fish, shellfish and wildlife and...recreation in and on the water...” These section 101(a)(2) goals are referred to by EPA as the “fishable/swimmable” uses. A State may designate the uses it chooses for its waterbodies, subject to federal regulations requiring designation of fishable/swimmable uses where attainable. See 40 CFR 131.2, 131.6(a) and 131.10(j). The water quality criteria describe the level of water quality necessary to support a particular designated use. Waters are not attaining a designated use if the necessary water quality to support that use is not present. While people may swim in water that is not attaining the water quality criteria for recreation or fish in water with water quality supporting only a limited fishery, such limited uses are not evidence that the designated use (as listed in state water quality standards) for a recreational or fishing use is attained for that water. The commenter also references the independent, external peer review of EPA’s proposed methodologies for deriving numeric nutrient criteria for Florida’s inland waters, completed in July 2009, which was made available through EPA’s docket for the proposed Florida nutrients rule (Peer Review Comments Final: External Peer Review of EPA’s Proposed Methods and Approaches for Developing Numeric Nutrient Criteria for Florida’s Inland Waters, EPA-HQ-OW-2009-0596-0010). EPA considered and responded to these peer review comments prior to proposal in January 2010 (EPA Responses to External Peer Review of EPA, EPA-HQ-OW-2009-0596-0155).

Comment ID: 1352-1.001.028 Response: EPA agrees in part and disagrees in part. EPA agrees with the commenter that higher trophic levels may support a relatively greater abundance of sportfish relative to lower trophic levels, and that sportfishing may be an example of a recreational use of a waterbody. However, EPA disagrees that “the fishable designated use is...not supported by severely restricting nutrient levels in lakes and, in Polk County, fishable lakes are the most preferred.” EPA disagrees that its numeric nutrient criteria severely restrict nutrients. Rather, EPA’s criteria are established at levels that support a healthy well balanced fish population. FDEP has three classes of designated uses: Class I (Potable Water Supplies); Class II (Shellfish Propagation or Harvesting) and Class III (Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife). FDEP has not designated an exclusive “fishable” or “sportfishing” use; rather, fishing is one type of Class III designated use. When setting numeric nutrient criteria to protect the designated use, EPA must consider all designated uses within a class, not just one specific use. EPA’s regulations at 40 CFR 131.10(c) allow States to adopt sub-categories of a use and set appropriate criteria to reflect the varying needs of such sub-categories of uses; in addition, EPA’s regulations at 131.11(b)(1) allow States to establish numeric criteria based on site-specific conditions or other scientifically defensible methods. Therefore, if Florida chooses, it may revise its

11/19/2010 02:48 PM EST 2-4467Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms designated uses to reflect waters specifically intended for sportsfishing and establish appropriate numeric nutrient criteria to protect this use, so long as it complies with the requirements of 40 C.F.R. § 131.10.

Comment ID: 1355-2.001.002 Response: Please refer to the response to comment ID 0900-1.001.003.

Comment ID: 1359-1.001.015 Response: EPA disagrees that the possible need to refine the classification of state waters supports delaying or deferring implementation of the federal criteria. EPA’s regulations at 40 CFR 131 allow FDEP to revise its designated uses at any time, even though Florida is contemplating a more explicit process. Any use revision or reclassification must meet the requirements of 40 CFR §131.10. In addition, Florida’s regulations provide mechanisms (e.g. variances) to allow time where the designated use and applicable criteria are not immediately attainable. Therefore, it would be unnecessary to broadly delay implementation of the federal nutrient criteria in Florida to allow time to evaluate the appropriateness of any designated use.

Comment ID: 1359-1.001.055 Response: Please refer to the response to comment ID 0900-1.001.003.

Comment ID: 1464-1.001.018 Response: EPA disagrees that there is a need for EPA to provide further requirements in this rule to (1) emphasize EPA’s existing requirement to evaluate uses every three years (40 CFR 131.20(a)); (2) require Florida to develop an explicit method of identifying existing uses; (3) provide guidance to Florida on how to identify what “cost-effective and reasonable best management practices” are for the purposes of establishing or changing designated uses pursuant to these sections and (4) provide further guidance on how categorical UAAs must ensure protection of existing uses and downstream uses. As the commenter points out, each of these issues is addressed through a requirement currently in EPA’s national regulations at 40 CFR §131. In addition, the requirements at 40 CFR §131.10 apply to any use change, regardless of whether it is done on an individual basis or categorically. While additional guidance may assist Florida in implementing these regulations, this rule is limited to establishing numeric nutrient criteria to protect Florida’s waters. Therefore, providing such guidance or additional requirements in these four areas is beyond the scope of this rulemaking. See also response to comment ID 1530.001.040.

Comment ID: 1464-2.001.019 Response: EPA’s water quality standards regulation at 40 CFR 131.12 requires states to develop and adopt a statewide

11/19/2010 02:48 PM EST 2-4468Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms antidegradation policy and identify methods to implement such a policy. The antidegradation policy must at a minimum include three levels (“tiers”) of protection, one of which is to maintain and protect Outstanding National Resource Waters (ONRWs) . Florida has established a process for designating such waters, set out at 62.302.700, F.A.C. While there is a requirement for states to provide a framework for three levels of protection in their antidegradation policies, there is no requirement that waterbodies be classified as ONRWs; rather, this classification is left to the state’s discretion. Similarly, a state may, at its discretion, remove waters from ONRW protection. Adoption of additional criteria above and beyond the applicable criteria for CWA purposes is at the state’s discretion, and would be subject to EPA’s review and approval.

Comment ID: 1474-1.001.019 Response: Please refer to the response to comment ID 1359-1.001.015.

Comment ID: 1474-1.001.098 Response: EPA disagrees with the commenter that the Agency is inappropriately applying antidegradation concepts to criteria derivation. Please refer to the response to Comment ID 0900-1.001.003 regarding EPA’s derivation of scientifically defensible water quality criteria consistent with the Clean Water Act 303(c) and EPA’s implementing regulations at 40 CFR 131.

Comment ID: 1474-1.001.106 Response: Please refer to the response to Comment ID 0900-1.001.003. Please also refer to the final preamble associated with this rule, in particular, section II. Background, which discusses nitrogen and phosphorus pollution, EPA’s statutory and regulatory requirements, and EPA’s January 14, 2009 determination under CWA section 303(c)(4)(B) that new or revised WQS in the form of numeric water quality criteria for nitrogen/phosphorus pollution are necessary to meet the requirements of the CWA in the State of Florida.

Comment ID: 1482-1.001.024 Response: EPA’s regulations at 40 CFR 131 allow FDEP to revise its designated uses at any time, whether or not FDEP’s proposed reclassification process becomes effective. Any use revision or reclassification must meet the requirements of 40 CFR §131.10, for example protecting existing uses and ensuring that the water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters. This rulemaking is intended to establish numeric nutrient criteria appropriate for Florida’s lakes and flowing waters. Therefore, FDEP’s proposed establishment of a Class III limited use and reclassification process is outside the scope of this proposed rulemaking.

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Comment ID: 1482-1.001.043 Response: Please see the response to comment ID 1482-1.001.024.

Comment ID: 1482-1.001.044 Response: Please see the response to comment ID 1482-1.001.024.

Comment ID: 1482-1.001.046 Response: Please see the response to comment ID 1482-1.001.024. EPA’s regulations at 40 CFR 131 allow FDEP to revise its designated uses at any time, whether or not FDEP’s proposed reclassification process becomes effective. Any use revision or reclassification must meet the requirements of 40 CFR §131.10. This rulemaking is intended to establish numeric nutrient criteria appropriate for Florida’s lakes and flowing waters. Therefore, FDEP’s proposed establishment of a Class III limited use and reclassification process as well as the timing for EPA approval or disapproval is outside the scope of this proposed rulemaking. With regard to the commenter’s concern that categorical UAAs may fail to evaluate and protect downstream uses, EPA’s regulation at 131.10(b) states that States “shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.” This regulatory requirement applies regardless of whether uses are designated as part of a categorical UAA or not. Please also refer to the response to comment ID 1530.001.040

Comment ID: 1530.001.023 Response: EPA disagrees in part and agrees in part. EPA disagrees that UAAs are “typically” a long and time-consuming process. EPA’s experience is that UAAs may range from simple to complex, depending on a variety of factors, such as the type of waterbody involved, the size of the segment, the use being changed, the relative degree of change proposed for the designated use, the presence of unique ecological habitats, the level of public interest/involvement in the designated use decision, the acceptable level of uncertainty in establishing the needed pollutant controls and other measures, as well as the costs associated with those controls and measures, etc. EPA agrees that, while a UAA is being conducted, the criteria for the current designated use remain in place. In the case of Florida’s Class I and Class III flowing waters and lakes, EPA’s promulgated numeric criteria would remain in place until those waters are redesignated and approved by EPA, and these criteria would be the basis for NPDES permit limits for such waters.

Comment ID: 1530.001.039 Response: EPA appreciates the comment but disagrees that additional substance is needed in the preamble to the proposed rule. Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for

11/19/2010 02:48 PM EST 2-4470Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. For further discussion on designated uses or criteria, the commenter is encouraged to refer to EPA’s regulation at 40 CFR 131.10 and 40 CFR 131.11. EPA also directs commenters to section V. Alternative Regulatory Approaches and Implementation Mechanisms of the preamble to the final rule to clarify when each tool is appropriately used.

Comment ID: 1530.001.040 Response: If a state or tribe can identify multiple waters with similar characteristics and constraints on attainability, the state or tribe may conduct a “categorical” UAA for these waters. This approach may reduce data collection needs allowing a single analysis to represent many sites. To use such an approach, however, the state or tribe must have enough information about each particular site to reliably place it into the category. EPA has previously discussed “categorical UAAs” in its Water Quality Standards Handbook, Second Edition (EPA-823-B-94-005a). The concept of a categorical UAA (also referred to as “basin-wide” or “generic” UAAs) is purely one to assist in streamlining the process where multiple similar waterbodies may need UAAs for the same reason. The requirements for changing the use remain the same and are applicable to each waterbody as well as to the category of waterbodies. Therefore, categorical UAAs are intended to allow efficiency in the demonstration and analysis rather than to reduce the demonstration and analysis requirements.

Comment ID: 1616-1.001.003 Response: Please refer to the response to comment ID 1464-1.001.018. In addition, EPA is not finalizing the proposed Restoration Water Quality Standards as described in section V.E. of the preamble to the final rule.

Comment ID: 1768-1.001.006 Response: EPA disagrees in part and agrees in part. EPA disagrees with the commenter that regulatory mechanisms such as refining or removing uses (i.e., use re-designation, variances, and site-specific criteria) are “loopholes” within the CWA. Rather, these mechanisms provide states and tribes the means to adopt appropriately protective water quality standards. EPA agrees with the commenter that such mechanisms are designed to be used in specific situations and require EPA review. EPA’s federal rule for Florida is limited to establishing numeric nutrient criteria for Florida’s lakes and flowing waters. EPA’s preamble describes tools that already exist and are implemented at the discretion of the Florida Department of Environmental Protection (FDEP), the primary agency responsible for determining how to implement Clean Water Act (CWA) programs delegated by EPA, including the NPDES program. As such, EPA defers to FDEP in administering applicable CWA programs consistent with CWA statutes and EPA’s implementing regulations. Except as explicitly set out in this rule, nothing in EPA’s rule changes or amends any other requirements under the CWA or EPA’s implementing regulations.

Comment ID: 1768-1.001.013

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Response: EPA agrees in part and disagrees in part. The use attainability analysis (UAA) process is used to determine the highest attainable use for a waterbody, and provides the supporting documentation when a state or tribe refines its designated uses. While a UAA may result in a use downgrade, it may also result in a use upgrade - the key purpose of the UAA is to identify the appropriately protective designated use.

Comment ID: 1768-1.001.014 Response: EPA recognizes that regulatory relief mechanisms available to FDEP when implementing EPA’s numeric nutrient criteria are, themselves, subject to other requirements of the CWA and EPA’s federal Water Quality Standards implementing regulations at 40 CFR 131 including the requirement that water quality necessary to support existing uses must be protected. Nothing in this rulemaking changes those requirements.

Comment ID: 1768-1.001.015 Response: EPA is not finalizing restoration water quality standards for Florida in this rulemaking. Please refer to section V.E of the preamble for a discussion of why EPA is not finalizing restoration water quality standards.

Comment ID: 1784-1.001.003 Response: Please refer to the response to comment ID 1482-1.001.024.

Comment ID: 1784-1.001.037 Response: Pease refer to the response to comment ID 1482-1.001.024.

Comment ID:1786-1.001.050 Response: Please refer to the response to comment ID 1530.001.040.

Comment ID: 1786-1.001.058 Response: EPA appreciates the commenter’s statement that no approach to water quality will satisfy the needs of all stakeholders. While this may be true, the purpose of the federal regulations are to ensure the maintenance and protection of the designated uses of the nation’s waters and water quality necessary to achieve the goals of the Clean Water Act. The federal regulations and Florida’s

11/19/2010 02:48 PM EST 2-4472Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms State regulations provide a sufficient number of implementation tools to assist Florida in attaining its water quality standards. The State also has the discretion to propose, in the future, additional regulatory relief mechanisms that allow implementation flexibility where demonstrated to be appropriate.

Comment ID: 1797-1.001.010 Response: Please refer to the response to Comment ID 1482-1.001.024. In addition, this rulemaking is intended to establish numeric nutrient criteria appropriate for Florida’s lakes and flowing waters but does not specify how such criteria are to be attained. Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. Florida has a variety of tools available at its discretion. EPA disagrees that such tools are impractical solely due to the fact that such tools must be implemented through a rulemaking. EPA believes that such rulemaking is necessary to assure the public that any relief from the applicable water quality standards is consistent with statutory and regulatory requirements.

Comment ID: 1801-1.001.005 Response: The commenter does not identify specific reasons why they believe EPA’s numeric nutrient criteria may be inadequate nor does the commenter identify any specific waters where data show EPA’s criteria would be inadequate. EPA and FDEP scientists have completed a substantial body of scientific work to determine the appropriate numeric nutrient criteria to protect Florida’s lakes and flowing waters designated for Class I or Class III designated uses; EPA is finalizing criteria based on such sound science to protect Florida’s waters. Florida may choose to re-evaluate the criteria and develop site-specific alternative criteria where Florida believes different nutrient criteria are appropriate to account for site-specific conditions. Please refer to the preambles to the proposed rule and final rule, as well as the Technical Support Document (TSD), for a discussion of how EPA developed appropriate numeric nutrient criteria and why EPA believes the criteria are scientifically defensible. In particular, refer to Section III for a discussion of where the promulgated numeric nutrient criteria for lakes and flowing waters apply. Also, please refer to the response to comment ID 0900-1.001.003.

Comment ID: 1810-1.001.017 Response: Please refer to the response to comment ID 1464-1.001.018.

Comment ID: 1834-4.001.005 Response: Water quality criteria describe the level of water quality necessary to support a particular designated use. Waters are not attaining a designated use if the necessary water quality to support that use is not present. The numeric nutrient criteria in this rule

11/19/2010 02:48 PM EST 2-4473Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms are applicable water quality standards that must be addressed when the State assesses waters pursuant to Clean Water Act (CWA) section 303(d). Please refer to the preamble to the final rule, in particular section III.E Applicability of Criteria When Final, for additional discussion. 

# V.B - VARIANCES Comment ID 0589.001.004
Author Name: Foy J. Organization: StormwaterJ Engineering Inc. 4. It is understood that EPA's proposed NNC are not rules or laws. However, as written there appears to be no allowance for acts of God nor the effects of such events. Clearly the guidance documents for preparations of any rules or regulations must allow for such. 

# Comment ID 0589.001.019
Author Name: Foy J. Organization: StormwaterJ Engineering Inc. 4. Little explanation for "Acts of God" or the consequences of such should be needed after Hurricane Andrew or Katrina. Florida was ravaged by hurricanes in 2004 and 2005. The water quality effects are still being felt. Although global warming and above ground impoundment ruptures may be man induced, there is no mention of allowances for or adjustments to NNC. There is clear justification for variations in criteria based on "Acts of God" and national disasters and failed public works projects and inadvertent consequences of well intended (but maybe misinformed) actions by man. 

# Comment ID 0625.001.002
Author Name: Hackney G. Organization: Hackney Nursery There are many unanswered questions I have. As I stated above, we have the ability to contain our irrigation run-off. What happens in the event of a storm discharge? What happens in the event of a tropical depression? What happens right now? According to the Tallahassee Democrat, and at the airport we've had 23-plus inches of rain since December 1, 2009. Our plants are basically dormant right now, so our water needs right now are very minimal.



# Comment ID 0670.001.005

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Author Name: Cole T. Organization: Florida Pulp and Paper Association And then just a second point, and it would be hard to cover it in the last minute and a half, but I'll do my best to get it in. But it also looks like this is not just an ambient number that you're proposing, but it is end-of-the-pipe limitation for several reasons. The first is that Florida does not do mixing zones for nutrients and they do not do a mixing zone where a water is impaired for a particular pollutant. They have a prohibition on causing or contributing to a violation of water quality standards. So it looks like a mixing zone is not available. Under the SAC process, the first type is usually not applicable for the types of situation we are dealing with here, which are basically reference types waters. Their second type, both of which have been approved by you, is a type 2 SAC is not allowed for nutrients. So under the current rules and the current federal water quality standards for Florida that are in place today, neither of those would be available. Likewise, for variances, there is a provision in the statute put in at the EPA's request when the program was delegated, that they cannot do a variance for something -- for a provision less stringent than a comparable federal provision. So that means if they have something with less stringent nutrients, they could not do a variance for it. 

# Comment ID 0832.001.005
Author Name: Stewart R. Organization: Florida Pulp and Paper Association If Florida and EPA can't get together and decide how we're going to implement variances, how we're going to implement site specific alternative criteria, how we're going to approve the TMDLs that have already been approved as site specific alternative criteria, then these are the costs that we're going to incur and we're considering these real costs, and so I wanted to really bring that to your attention. Again, we started studying this back in November. I mean, we've certainly been working through the TMDL process, and we made the assumption way back last fall to start working on this issue, and we're still struggling to meet the March 29th deadline, and so again another request for extension would be great. Appreciate your time. MR. KING: Mr. Stewart, one question for you. Let me echo back what I thought I heard you say. You're proceeding on a costing basis that most of the implementation tools won't be available because of an assumption of the state's challenge in defending the rule when they get around to adopting it? MR. STEWART: Right. I mean, right now the statutes and the regulations in Florida will not allow variances and mixing zones and site specific alternative criteria for nutrients. There have to be statutory and regulatory changes. So unless EPA proposes regulatory language or standards in the Federal 131, there's nothing in Florida that will allow for implementation and use of mixing zones or variances or anything like that. 

# Comment ID 1217-2.001.027
Author Name: Voyles J.

11/19/2010 02:48 PM EST 2-4475Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Mosaic Fertilizer LLC Another potential conflict between the Rule and Florida law concerns variances. The Rule preamble states that variances to the Rule are still available under existing Florida law, and thus the Rule creates no new or separate federal variance program. 75 Fed. Reg. at 4,217. However, under Florida law, variances cannot be granted where the variance "would result in the provision or requirement being less stringent than a comparable federal requirement." Fla. Stat. § 403.201(2). Absent a change in State law (which is, by, definition beyond the scope or authority of EPA's rulemaking), Florida's existing variance provision may provide no relief whatsoever, which plainly is not EPA's intent. To eliminate this incongruity, Mosaic proposes revising the Rule to make explicit that a State variance from the criteria would not be deemed "less stringent" for the purposes of Fla. Stat. § 403.201(2). This could be accomplished by adding the following provision: 131.43(d)(3) Any State law variance granted to the criteria established under paragraphs (c)(1) - (4) of this section shall not be deemed "less stringent" than the criteria established under paragraphs (c)(1) - (4) for the purposes of Fla. Stat. § 403.201(2). Solution: Allow Petitions for Revised Watershed-Specific Criteria Based on New Data or Scientific Information The Rule should also allow for consideration of updated and expanded data that would warrant changes in EPA's conclusions for areas larger than a WBID or stream segment. Florida and the regulated community are constantly gathering, updating and revising relevant water quality data, and this ongoing process could have broad ramifications for the criteria set in the Rule. Accordingly, Mosaic proposes that the Rule provide a specific mechanism for any person or organization to propose modifying the criteria based on new data or analyses. This procedure would be different from an SSAC, since it might entail a wholesale revision to the criteria for an entire watershed, not merely a site-specific alternative for a particular waterbody or WBID. Mosaic suggests that criteria could be revised for geographic areas at a scale at or above USGS Hydrologic Unit Code ("HUC") Level 10, which is finer than separate river basins, but coarser than individual WBIDS.[49] Mosaic proposes adding the following paragraph (h) to Section 131.43: (h) Revised Watershed-Specific Criteria Based on Updated or Expanded Data (1) Any person may petition the Regional Administrator to revise any of the criteria established in section (c). Such a petition shall apply to a geographic area no smaller than a watershed at USGS HUC Level 10 or its hydrogeographic equivalent. Such a petition may be based on revised data, new scientific information or other scientific or technical bases. (2) Any petition under paragraph (1) shall contain sufficient information to support a Technical Support Document pursuant to paragraph (h)(3) of this section. (3) For any petition under paragraph (h)(1) of this section, the Regional Administrator shall, prior to acting on the petition, provide public notice and invite comment on the petition. For any such petition the Regional Administrator shall prepare and make available to the public a technical support document addressing the specific watershed that would be affected and the justification for the petition. This document shall be made available to the public no later than the date of public notice issuance.

11/19/2010 02:48 PM EST 2-4476Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms [49] USGS hydraulic unit boundaries (HUC) at Watershed Level 10 is a hierarchal, numeric code that uniquely identifies hydraulic units. In this case, the 10-digit numeric code offers hydraulic information at the watershed level. See http://www.mass.gov/mgis/nrcshuc.htm 

# Comment ID 1338-1.001.019
Author Name: Champion T. Organization: Georgia-Pacific Corporation, LLC Additionally, under Florida law, the Florida DEP must first adopt any variances as a rule prior to implementation. However, Section 403.201(2), Florida Statutes, prohibits the issuance of variances in cases where a federal standard is stricter than a state standard, rendering the variance process likely useless in this situation. 

# Comment ID 1350-1.001.011
Author Name: Schwartz J. Organization: American Forest & Paper Association C. Variances EPA also notes the availability of variances to limit the applicability of a specific criterion for a period of time (although they are renewable). 75 Fed. Reg. at 4217. Variances generally are approved on the basis of the same information that is provided in a use attainability analysis. However, variances are used when the state believes the underlying standard can be achieved in a short period of time. Thus, a variance simply provides a short period of additional time to meet the criteria EPA is proposing. In any event, variances from the final EPA criteria would not be an available option under Florida law because Florida statutes prohibiting the issuance of variances less strict than a federal standard.[16] 

# Comment ID 1359-1.001.016
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition E. Variances EPA also notes the availability of variances to limit the applicability of a specific criterion for a period of time. 75 Fed. Reg. at 4217. Variances generally are approved on the basis of the same information that is provided in a use attainability analysis. Some States have adopted statewide or multiple-discharger variances into their water quality regulations, such as those for mercury adopted by Michigan, Ohio, Indiana, and other states. These variances do not have to be adopted on a discharger-by-discharger basis, and can be renewed. This type of broadly-applicable variance may provide Florida with an opportunity to apply more appropriate water quality standards to some classes of waters,

11/19/2010 02:48 PM EST 2-4477Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms pending a reclassification. However, that flexibility must be built into the Florida regulations. In addition, Florida law does not allow issuance of a variance that is less stringent that a comparable federal requirement. Fla. Stat. § 403.201(2). Thus, EPA should incorporate a reference to the State variance procedure in the federal criteria, so that it would part of the federal criteria and therefore not less stringent. This issue too, lends support for the Coalition's proposal to delay the effective date or the compliance date for federal criteria, to give the State time to put appropriate implementation measures into place. 

# Comment ID 1464-1.001.016
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. Also, as further described in our comments on Section VI below concerning EPA's proposed Restoration Standards, EPA's discussion of various implementation principles and its policies concerns us. In this section of our comment, we focus particular attention on use designations, variances and compliance schedules. Further, we suggest that instead of adopting the proposed Restoration Water Quality Standards, EPA adopt a specific variance proposal for Florida (as discussed at the end of this section).



# Comment ID 1474-1.001.020
Author Name: Herz W. Organization: The Fertilizer Institute E. Variances. EPA also notes the availability of variances to limit the applicability of a specific criterion for a period of time. 75 Fed. Reg. at 4217. Variances generally are approved on the basis of the same information that is provided in a use attainability analysis. Some states have adopted state-wide or multiple-discharger variances into their water quality regulations, such as those for mercury adopted by Michigan, Ohio, Indiana, and other states. These variances do not have to be adopted on a discharger-by-discharger basis, and can be renewed. This type of broadly-applicable variance may provide Florida with an opportunity to apply more appropriate water quality standards to some classes of waters, pending a reclassification. However, that flexibility must be built into the Florida regulations. Moreover, under Florida law, variances cannot be granted where the variance "would result in the provision or requirement being less stringent than a comparable federal requirement." Fla. Stat. § 403.201(2). Thus, Florida's existing variance provision may provide no relief whatsoever, which plainly is not EPA's intent. EPA should seek to avoid this outcome by incorporating a reference to the State variance into the federal criteria, so the variance procedure would part of the federal criteria and therefore not less stringent. This issue too, lends support for TFI's proposal to delay the effective date or the compliance date for federal criteria, to give the State time to put appropriate implementation measures into place.

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# Comment ID 1482-1.001.020
Author Name: Hecker J. Organization: Conservancy of Southwest Florida Variances The preamble also discusses variances as a means of avoiding application of the nutrient criteria for "a specified geographical coverage, a specified pollutant or pollutants, and/or a specified pollutant source." While we believe that a variance for a specific discharge permit may be preferable to downgrading the use classification of a waterbody that is not currently meeting water quality standards, EPA's discussion of the use of variances is much too broad and ignores the fact that FDEP rules do not currently require a UAA before a variance can be granted. First, EPA implies that general variances from the application of water quality criteria can be approved under the Clean Water Act. EPA rules, however, only provide for water quality variances with regard to NPDES permits. See 40 C.F.R. § 124.62. Second, while EPA mentions that a UAA is required for a variance, FDEP rules currently do not require a UAA for any of the variances available under 62-620.800, F.A.C. Furthermore, FDEP rules do not currently include a UAA process at all. 

# Comment ID 1530.001.024
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority A variance is usually a short-term fix and must be reviewed every 3-5 years to determine if the variance should continue. An UAA is needed to institute a variance; however, EPA has indicated that it may not need to be as rigorous of an UAA as needed for a permanent change to the designated use. (see Guidance: Coordinating Combined Sewer Overflow (CSO) Long-Term Planning with Water Quality Standards Reviews - EPA-833-R-OI-002; attached as Appendix N). While the UAA is being developed for the variance, the new numeric criteria would be in place and required to be used to establish NPDES permit limits. 

# Comment ID 1530.001.041
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority ii. Section V.B. - Variances In this section, EPA notes "A variance should be used instead of removal of a use where the state believes the standard can be attained in a short period of time." This is not clear because EPA has not been clear in the use of specific terminology. In the regulations at 40 CFR Part 131, EPA requires states to include in their WQS three parts; designated uses, criteria to protect the uses and an antidegradation policy (the state may also include general policies but that is

11/19/2010 02:48 PM EST 2-4479Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms discretionary). In using the word "standard" ("standard can be attained"), does EPA mean the designated use, the water quality criteria, the antidegradation policy or all three parts that make up the "standard"? If EPA's intent was to discuss the "designated use", is the variance being used because it may take time for the use to be attained or it may take time to determine if the use is the correct use? Also, if it is an issue related to the use, how is it being measured? Is it being measured based on the attainment of the criteria? If this is the case, is the issue actually that it may take time to achieve the criteria and this may be better handled through a compliance schedule. 

# Comment ID 1616-1.001.004
Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida B. Variances EPA's discussion of variances in the proposed rule notice is misleading in several ways. First, EPA notes that a variance "allows, among other things, NPDES permits to be written such that reasonable progress is made toward attaining the underlying standards for affected waters," a position that is inconsistent with current federal requirements, as indicated by EPA's PowerPoint presentation on its Florida rule proposal. EPA's Proposed Water Quality Standards for Florida's Lakes and Flowing Waters Establishing Numeric Nutrient Criteria Restoration Standards, undated, at 2. Inthis PowerPoint, EPA correctly notes that, according to its existing regulations, "[v]ariances are typically dischargerspecific and do not explicitly require interim progress, nor address the challenge of obtaining point and nonpoint source reductions." Id. (emphasis added). Saying that reasonable progress is required as a part of a variance is also inconsistent with EPA's own statements in this notice describing why variances cannot accomplish the same result as the proposed restoration standard: "Federal regulations are not explicit in requiring that states pursue feasible (i.e. attainable) progress towards achieving the highest attainable use when implementing a variance." Fed. Reg. at 4219. Of course, States are free to add this particular requirement. And, States subject to EPA's Great Lakes Initiative (GLI) regulations are required to do so. GLI Pt. 132, App F, Procedure 2 §F.2. But, currently, EPA's regulations that apply to states outside the GLI, such as Florida, are not required to ensure that sources obtaining variances demonstrate interim or reasonable progress In other words, EPA could promulgate such a requirement as part of Florida's water quality standards but since it has not proposed such a requirement, it may not describe variances as having that effect. We urge EPA to include a requirement for reasonable progress in the Florida promulgation as well as to provide guidance on how Florida can achieve that goal. This is further described in the section on the restoration standards below. We are also disturbed by EPA's statement in the restoration standards section of the notice that "[variances] do not address the challenges of pursuing reductions from a variety of sources across a watershed." Fed. Reg. at 4219. While we agree that variances are not TMDLs nor do they address all the necessary load reductions across a watershed, EPA fails to explain that the issuance of a variance, as with a UAA, does require that the State find that the uses subject to a variance cannot be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices for nonpoint source control. 40 C.F.R. §§ 131.10(d); 131.10(h)(2). If Florida were to implement the regulatory requirements as they are written, it might indeed find that its desire to issue variances would force itself, the state, and NPDES sources seeking variances, to ensure that neighboring dischargers and nonpoint sources were doing all they could to reduce nutrient loading. In this regard,

11/19/2010 02:48 PM EST 2-4480Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms waters that are slightly or moderately impaired by nutrients might be prime candidates for a three-year variance with one or more renewals as waters were actually cleaned up, through nonpoint source controls and holding point sources to permit requirements. By keeping the emphasis on the short-term nature of variances and their requirement that all sources be implementing fundamental pollution controls, variances could serve as the most appropriate method for achieving attainment for waters not grossly impaired by nutrients. In addition, it is troubling to see EPA describe variances in language that is far more broad than it has in any guidance to date. Specifically, the notice implies that a variance can be written for more than a single discharger: Fed. Reg. At 4217 ("[a] variance may be written to address a specified geographical coverage."). In contrast, every EPA guidance document or memorandum discussing variances issued by EPA to date refers to them as specific to individual dischargers. See, e.g., ANPRM at 36759; EPA, National Assessment of State Variance Procedures, 1990 at 1. Even the GLI does not sanction multiple source variances but explicitly discusses individual permit holders. GLI Pt. 132, App F, Procedure 2 §A. The preamble describes Procedure 2 as allowing variances "applicable to individual existing Great Lakes dischargers." Final Water Quality Guidance for the Great Lakes System, 60 Fed. Reg. 15,366 (1995) at 15,376. In describing the applicability of Procedure 2, the GLI specifies that a variance "applies only to the permittee requesting the variance." Procedure 2, § A (emphasis added). Likewise, every other provision in the GLI makes reference to variances' applying to individual permittees (conditions to grant a variance, submission of a variance application, public notice, and the final decision on a variance request). Id. at §§ C, D, E, F. In short, there is no regulatory provision that allows for multiple source variances despite EPA statements suggesting that such a device could be used under GLI regulations. ANPRM at 36759. In Michigan, EPA settled a lawsuit challenging EPA's approval of a multi-source variance for mercury with an agreement the state would establish the waste load allocations for permit holders on an individual basis. Nat'l Wildlife Fed'n v. Johnson, No. 06-12423 (E.D. Mi. Nov. 30, 2007) (consent decree). Finally, we support EPA's clear statement that the substantive requirements of 40 C.F.R. Part 131 apply to the issuance of variances. We do note, however, that many of the comments above concerning protection of existing uses and findings concerning attainability of uses, apply to whether variances will have an appropriate outcome consistent with federal regulations. We urge EPA to clarify and require the implementation methods we discuss above. EPA finds that since Florida has an EPA-approved variance procedure that it need not include any further rule language in this rulemaking. We disagree for the reasons explained in our comments below in which we explain that a Florida nutrient-specific variance procedure would be more appropriate than EPA's proposed "restoration standards." However, we urge EPA to adopt this Florida nutrient-specific variances solely for use by sources that will need a long period in which to come into compliance. Sources that do not require long periods should pursue variances under Florida's existing rules. 

# Comment ID 1647-1.001.017
Author Name: Kates K. Organization: Florida Fruit and Vegetable Association Lack of Relief Mechanisms The EPA's proposed criteria do not provide for any relief mechanisms. Under Florida Statue 403.201(2) (prohibiting the

11/19/2010 02:48 PM EST 2-4481Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms issuance of variances less strict than a federal standard), variances, under Florida law, are not an available option.


# Comment ID 1670-1.001.008
Author Name: Legg L. Organization: Hernando County Utilities Department

• The EPA should include predictable implementation mechanisms into the proposed rule to allow variances, exemptions, interim limits, etc, for wastewater utilities since it is impossible for utilities to meet the proposed nutrient criteria by the current deadlines stipulated in the proposed rule. 

# Comment ID 1729.001.014
Author Name: Fugett A. Organization: 18. EPA should include predictable implementation mechanisms into the proposed rule to allow variances, exemptions, interim limits, etc. for water and wastewater utilities since it is impossible for utilities to meet the proposed nutrient criteria by the current deadlines stipulated in the proposed rule. 

# Comment ID 1774-1.001.039
Author Name: Payne J. Organization: Farmland Reserve, Inc. doing business as Deseret Ranches of Florida Proposed Criteria Must Be Implementable

• One unintended outcome of the proposed NNC would be a broad scale use by MS4s of the variance process envisioned by EPA in cases where the long-term cost of constructing, operating and maintaining community stormwater treatment facilities greatly outweighs the cost developing variances. This outcome would severely impact agency resources for the technical review, public involvement and rule promulgation processes. 

# Comment ID 1786-1.001.051
Author Name: Kirk K. Organization: National Association of Clean Water Agencies

• EPA's proposal recognizes Florida's existing authority to issue variances, stating that "EPA believes that the State has

11/19/2010 02:48 PM EST 2-4482Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms sufficient authority to use its adopted and EPA-approved variance procedures with respect to modification of their Class I or Class III uses as it pertains to any federally-promulgated nutrient criteria." 

# Comment ID 1786-1.001.059
Author Name: Kirk K. Organization: National Association of Clean Water Agencies Water quality variances are an existing regulatory mechanism that can be used to reconcile unattainable water quality standards with what is possible in terms of treatment technology and affordability. Effluent performance requirements still need to be defined, but there are existing affordability reference points from EPA that bracket the potential investment required. There is, however, a substantial burden in making the case to justify receiving a variance and continuing to re-qualify on a periodic basis up to 20 years without assurance of a satisfactory outcome. 

# Comment ID 1797-1.001.011
Author Name: Braswell S. Organization: Florida Farm Bureau b. Variances According to Florida law, "no variance shall be granted from any provision or requirement concerning discharges of waste into waters of the state or hazardous waste management which would result in the provision or requirement being less stringent than a comparable federal provision or requirement..."[21] Because a variance would be less stringent than the EPA's proposed numeric nutrient criteria, a variance would be an inadequate alternative regulatory approach.

[21] Fla. Stat. Ch. 403.201(2) (2009) 

# Comment ID 1810-1.001.018
Author Name: Young L. Organization: Clean Water Network of Florida B. Variances EPA's discussion of variances in the proposed rule notice is misleading in several ways. First, EPA notes that a variance "allows, among other things, NPDES permits to be written such that reasonable progress is made toward attaining the underlying standards for affected waters," a position that is inconsistent with current federal requirements,

11/19/2010 02:48 PM EST 2-4483Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms as indicated by EPA's PowerPoint presentation on its Florida rule proposal. EPA's Proposed Water Quality Standards for Florida's Lakes and Flowing Waters Establishing Numeric Nutrient Criteria Restoration Standards, undated, at 2. Inthis PowerPoint, EPA correctly notes that, according to its existing regulations, "[v]ariances are typically dischargerspecific and do not explicitly require interim progress, nor address the challenge of obtaining point and nonpoint source reductions." Id. (emphasis added). Saying that reasonable progress is required as a part of a variance is also inconsistent with EPA's own statements in this notice describing why variances cannot accomplish the same result as the proposed restoration standard: "Federal regulations are not explicit in requiring that states pursue feasible (i.e. attainable) progress towards achieving the highest attainable use when implementing a variance." Fed. Reg. at 4219. Of course, States are free to add this particular requirement. And, States subject to EPA's Great Lakes Initiative (GLI) regulations are required to do so. GLI Pt. 132, App F, Procedure 2 §F.2. But, currently, EPA's regulations that apply to states outside the GLI, such as Florida, are not required to ensure that sources obtaining variances demonstrate interim or reasonable progress In other words, EPA could promulgate such a requirement as part of Florida's water quality standards but since it has not proposed such a requirement, it may not describe variances as having that effect. We urge EPA to include a requirement for reasonable progress in the Florida promulgation as well as to provide guidance on how Florida can achieve that goal. This is further described in the section on the restoration standards below. We are also disturbed by EPA's statement in the restoration standards section of the notice that "[variances] do not address the challenges of pursuing reductions from a variety of sources across a watershed." Fed. Reg. at 4219. While we agree that variances are not TMDLs nor do they address all the necessary load reductions across a watershed, EPA fails to explain that the issuance of a variance, as with a UAA, does require that the State find that the uses subject to a variance cannot be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices for nonpoint source control. 40 C.F.R. §§ 131.10(d); 131.10(h)(2). If Florida were to implement the regulatory requirements as they are written, it might indeed find that its desire to issue variances would force itself, the state, and NPDES sources seeking variances, to ensure that neighboring dischargers and nonpoint sources were doing all they could to reduce nutrient loading. In this regard, waters that are slightly or moderately impaired by nutrients might be prime candidates for a three-year variance with one or more renewals as waters were actually cleaned up, through nonpoint source controls and holding point sources to permit requirements. By keeping the emphasis on the short-term nature of variances and their requirement that all sources be implementing fundamental pollution controls, variances could serve as the most appropriate method for achieving attainment for waters not grossly impaired by nutrients. In addition, it is troubling to see EPA describe variances in language that is far more broad than it has in any guidance to date. Specifically, the notice implies that a variance can be written for more than a single discharger: Fed. Reg. At 4217 ("[a] variance may be written to address a specified geographical coverage."). In contrast, every EPA guidance document or memorandum discussing variances issued by EPA to date refers to them as specific to individual dischargers. See, e.g., ANPRM at 36759; EPA, National Assessment of State Variance Procedures, 1990 at 1. Even the GLI does not sanction multiple source variances but explicitly discusses individual permit holders. GLI Pt. 132, App F, Procedure 2 §A. The preamble describes Procedure 2 as allowing variances "applicable to individual existing Great Lakes dischargers." Final Water Quality Guidance for the Great Lakes System, 60 Fed. Reg. 15,366 (1995) at 15,376. In describing the applicability of Procedure 2, the GLI specifies that a variance "applies only to the permittee requesting the variance." Procedure 2, § A (emphasis added). Likewise, every other provision in the GLI makes reference to variances' applying to individual permittees (conditions to grant a variance, submission of a variance application, public notice, and the final decision on a variance request). Id. at §§ C, D, E, F. In short, there is no regulatory provision that allows for multiple source variances despite EPA statements suggesting that such a device could be used under GLI

11/19/2010 02:48 PM EST 2-4484Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms regulations. ANPRM at 36759. In Michigan, EPA settled a lawsuit challenging EPA's approval of a multi-source variance for mercury with an agreement the state would establish the waste load allocations for permit holders on an individual basis. Nat'l Wildlife Fed'n v. Johnson, No. 06-12423 (E.D. Mi. Nov. 30, 2007) (consent decree). Finally, we support EPA's clear statement that the substantive requirements of 40 C.F.R. Part 131 apply to the issuance of variances. We do note, however, that many of the comments above concerning protection of existing uses and findings concerning attainability of uses, apply to whether variances will have an appropriate outcome consistent with federal regulations. We urge EPA to clarify and require the implementation methods we discuss above. EPA finds that since Florida has an EPA-approved variance procedure that it need not include any further rule language in this rulemaking. We disagree for the reasons explained in our comments below in which we explain that a Florida nutrient-specific variance procedure would be more appropriate than EPA's proposed "restoration standards." However, we urge EPA to adopt this Florida nutrient-specific variances solely for use by sources that will need a long period in which to come into compliance. Sources that do not require long periods should pursue variances under Florida's existing rules. 

# Comment ID 1923.001.004
Author Name: Knight R. Organization: City of Winter Park 5. The former comment brings us to a question for the EPA: When the responsible managing entity has taken steps to treat all stormwater inputs to a particular water body to the extent that is practical and the water body still exceeds the criteria, what action will be taken by EPA? (We would like to point out that none of our lakes currently exceed the proposed criteria.) What further actions would be expected of the responsible entity? The City of Winter Park recommends that a specific, detailed and reasonable variance procedure be written into the rule to address this type of situation. We also recommend that the single value limits and ranges proposed for each lake classification be reviewed and adjusted to reflect the variability discussed above. The City also recommends clarification on whether the rule will require adherence to the single nutrient value, or the range provided (we recommend a range) . 

# Response Comment IDs: 1359-1.001.016, 1474-1.001.020 Response: EPA agrees that variances may be adopted on a multiple-discharger basis and can be renewed, however, EPA disagrees that Florida law, at 403.201(2), F.S., prohibits the state from issuing variances for waters affected by the federally-promulgated numeric nutrients criteria. As discussed in the one-size-fits-all to the final rule, a variance is a temporary modification to the designated use for a water and thus to the associated water quality criteria that would otherwise apply to that water. A variance is based on the same factors, set out at 40 CFR section 131.10, that are required to revise a designated use through a UAA. This final rule, however, does not promulgate any designated uses. EPA is finalizing criteria to protect the Class I and Class III designated uses Florida already has in place. Therefore, if a discharger needs a variance, Florida may use its existing variance process, as

11/19/2010 02:48 PM EST 2-4485Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms appropriate, to temporarily modify the designated use of the receiving water. The federal numeric nutrient criteria do not apply where and when the designated use is something other than Class I or Class III. Rather, Florida would establish a criterion associated with the variance. Both the variance and the associated criteria constitute new or revised water quality standards subject to EPA review pursuant to section 303(c) of the Clean Water Act. See also section III.E of the preamble to the final rule for a discussion regarding a delayed effective date.

Comment IDs: 0670.001.005, 0832.001.005, 1647-1.001.017, 1797-1.001.011, 1350-1.001.011, 1217-2.001.027, 1338-1.001.019 Response: EPA disagrees that Florida law, at 403.201(2), F.S., prohibits the state from issuing variances for waters affected by the federally-promulgated numeric nutrients criteria. As discussed in the preamble to the final rule, a variance is a temporary modification to the designated use for a water and thus to the associated water quality criteria that would otherwise apply to that water. A variance is based on the same factors, set out at 40 CFR section 131.10, that are required to revise a designated use through a UAA. This final rule, however, does not promulgate any designated uses. EPA is finalizing criteria to protect the Class I and Class III designated uses Florida already has in place. Therefore, if a discharger needs a variance, Florida may use its existing variance process, as appropriate, to temporarily modify the designated use of the receiving water. The federal numeric nutrient criteria do not apply where and when the designated use is something other than Class I or Class III. Rather, Florida would establish a criterion associated with the variance. Both the variance and the associated criteria constitute new or revised water quality standards subject to EPA review pursuant to section 303(c) of the Clean Water Act. In addition, where the receiving water is attaining the criteria, FDEP allows for mixing zones for numeric nutrient criteria which will not significantly impair any of the designated uses of the receiving body of water. In regards to the site-specific alternative criteria (SSAC) process, Florida’s water quality standards allow for two types of SSACs. Type I SSACs are available where a waterbody does not meet a particular ambient water quality criterion specified for its classification due to natural background conditions. Type 1 SSACs may be established for nutrients. Type 2 SSACs are available where it can be demonstrated that the proposed alternative criterion would fully maintain and protect human health, existing uses, and the level of water quality necessary to protect human health and existing and designated beneficial uses. Florida’s water quality standards do not allow Type 2 SSACs for nutrients. Therefore, EPA is finalizing a federal SSAC process as part of this final rule. The federal SSAC procedure allows any entity, including the State, to 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 criteria is appropriate and warranted. See section V.C. of the preamble to the final rule for a discussion on pursuing a federal SSAC on a watershed-wide basis. Also, see section V of the preamble to the final rule for additional information on alternative regulatory approaches and implementation mechanisms.

Comment IDs: 1729.001.014, 1670-1.001.008 Response: EPA disagrees that it is necessary for EPA to include additional implementation mechanisms in its final rule. EPA recognizes that Florida law does not currently allow for SSACs for nutrient criteria and is therefore promulgating a federal SSAC procedure that allows any entity, including the State, to 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 criteria is appropriate and warranted. However, under

11/19/2010 02:48 PM EST 2-4486Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms the CWA, FDEP is the primary agency responsible for determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. Water quality standards, and this final rule specifically, do not specify how to attain those standards. The State of Florida will determine how best to meet the standards in a way that meets the needs of its citizens and environment. The State may use its existing (or propose in the future) authorized regulatory relief mechanisms that allow implementation flexibility where demonstrated to be appropriate. See the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms, which describes the tools the State has at its disposal to exercise flexibility such that the rule is not a one-size-fits-all rule. EPA has worked closely with the State, providing technical assistance along with funding to the State to support sampling and analysis of existing data, to address nutrient pollution problems in Florida. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process at any time and EPA looks forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. If EPA approves the State’s substitute criteria, EPA would proceed to withdraw the federal rule as no longer necessary.

Comment ID: 1923.001.004 Response: EPA disagrees that there is a need for EPA to promulgate a specific variance procedure to address the stormwater situation identified. As discussed in the preamble to the final rule, a variance is a temporary modification to the designated use for a waterbody and thus to the associated water quality criteria that would otherwise apply to that water. A variance is based on the same factors, set out at 40 CFR section 131.10, that are required to revise a designated use through a UAA. This final rule, however, does not promulgate any designated uses. EPA is finalizing criteria to protect the Class I and Class III designated uses Florida already has in place. Therefore, if a discharger needs a variance, Florida may use its existing variance process to temporarily modify the designated use of the receiving water. The federal numeric nutrient criteria do not apply where and when the designated use is something other than Class I or Class III. Rather, Florida would establish a criteria associated with the variance. Both the variance and the associated criteria constitute new or revised water quality standards subject to EPA review pursuant to section 303(c) of the CWA. To specifically respond to the scenario raised by the commenter, if the responsible managing entity has taken steps to treat all stormwater inputs to a particular waterbody to the extent that is practical and the waterbody still exceeds the criteria, the state should determine whether all other permitted sources of the pollutant are being adequately controlled. 40 C.F.R. section 122.44(d) requires that NPDES permits must include a water quality based effluent limitation if nutrients or any pollutant cause, contribute to, or have the reasonable potential to cause or contribute to an excursion of a water quality standard. If permitted sources are not complying with applicable permits, the state should enforce the permit limits where they are being violated. If all permitted sources are meeting their NPDES limits and the waterbody still exceeds the criteria, the state is likely to determine that the waterbody is impaired and include the waterbody on the state’s list of impaired waters, pursuant to section 303(d) of the CWA. For each impaired waterway, the state must calculate a total maximum daily load (“TMDL”). TMDLs are developed to establish the

11/19/2010 02:48 PM EST 2-4487Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms maximum amount of a particular pollutant a particular waterway may handle while still meeting water quality criteria. This loading capacity includes the sum of all point source discharges - such as those regulated through individual permits - and the sum of all nonpoint source discharges such as agricultural runoff or naturally delivered loads, as well as a margin of safety. At any point, the state may choose to demonstrate that the applicable water quality standards are unattainable and thus requires a use change. Such a change must be consistent with EPA’s regulatory provisions at 40 C.F.R. section 131.10. In regards to the criteria and variability, EPA recognizes the variability in nutrients and chl-a across lakes within the different lake classes for which it proposed numeric nutrient criteria. Accordingly, EPA provides a process for re-adjusting an individual lake's TN and/or TP criteria to reflect long-term, lake-specific conditions. This modification process is constrained by the expectation that an individual lake must meet the chl-a criterion of its lake class, which in turn provides a range in which TN and/or TP criteria can be adjusted based on empirical relationship observed between nutrients and chl-a. The lake criteria EPA is finalizing (chl-a, TN, and TP) will apply independently as a magnitude not to be exceeded over a specified duration and frequency. TN and TP criteria will not be implemented against a range over which TN and TP criteria can be modified. Rather the final rule establishes that implementation of the criteria reflect the baseline TN and TP criteria, or the modified TN and TP criteria provided the minimum requirements for establishing modified criteria are met (see section131.43(c)(1)(ii)) of the final rule). See section III.C of the preamble to the final rule for discussion on the criteria EPA is promulgating for lakes and how variability is considered.

Comment IDs: 1616-1.001.004, 1810-1.001.018 Response: In response to the comments, EPA agrees in part and disagrees in part with the commenter. The commenters’ first comment is that EPA incorrectly stated that variances “allow” NPDES permits to be written such that reasonable progress is made toward attaining the underlying standards for affected waters. EPA agrees that EPA’s regulations do not explicitly require interim progress. However, EPA disagrees that its statement is incorrect. EPA’s said that variances “allow” states to write permits in such a way that reasonable progress is made, thus recognizing the discretion and opportunity available to states to dictate such progress be made as part of the NPDES permit conditions. The commenters recognize this discretion by stating “Of course, States are free to add this particular requirement.” While EPA believes its statement was correct, EPA also agrees, in principle, with the commenter that variances should include requirements for reasonable progress. However, because EPA is not promulgating designated uses, EPA is also not promulgating a variance procedure. EPA continues to recommend states include such requirements in their NPDES permits when issuing variances to ensure progress is made to meet the underlying standard during the term of the variance. EPA guidance has reiterated this recommendation. EPA’s Water Quality Standards Handbook: Second Edition, EPA-823-B-94-005a, August 1994, includes the following language, “EPA has approved State-adopted variances in the past and will continue to do so if: ...reasonable progress is being made toward meeting the standard.” In addition, while Florida is not a Great Lakes state, EPA’s Great Lakes Initiative (March 23, 1995, 60 FR 15416) clearly expresses its position on this matter by requiring that the Great Lakes states shall include permit conditions needed to implement the variance, such as requiring “that reasonable progress be made toward attaining the water quality standards for the waterbody as a whole through appropriate conditions.” EPA may deny the renewal of any variance if the permittee did not comply with the conditions of the original permit.

11/19/2010 02:48 PM EST 2-4488Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms In regards to the second comment concerning variances and reductions of a variety of sources, EPA agrees that it is necessary to holistically evaluate potential reductions across sources when issuing variances and/or designated use changes, including reductions in nonpoint sources. EPA did not intend for its statement to imply that states can issue a variance without evaluating the designated uses that can “be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices for nonpoint source control.” 40 CFR section131.10(d). In regards to the commenters’ third comment regarding multiple discharger variances, EPA agrees that there is no regulatory provision that allows for multiple discharger variances; there is also, however, no prohibition to such a mechanism. EPA’s Water Quality Guidance for the Great Lakes System: Supplementary Information Document (SID), EPA-820-B-95-001, March 1995, states “[i]n order to provide the most efficient short term relief to ‘ubiquitous’ pollutants, EPA encourages states to consider multiple discharger specific variance requests on a watershed basis where appropriate.” Multiple discharger variances would only apply to point source dischargers. EPA is not promulgating a designated use for Florida and therefore is not promulgating a federal variance procedure. As such, variances to dischargers will be issued consistent with Florida’s variance procedures. Finally, as discussed in the paragraph above, EPA is not promulgating any designated uses for Florida, and therefore, does not have a basis to establish a federal nutrient-specific variance procedure to replace Florida’s state variance procedure. In addition, EPA is not finalizing the restoration water quality standards tool that was proposed. Please refer to section V.E. of the preamble to the final rule for a discussion of why EPA is not finalizing restoration water quality standards.

Comment ID: 1464-1.001.016 Response: EPA appreciates the commenter’s suggestion for EPA to promulgate a nutrient-specific variance process for Florida instead of the proposed restoration water quality standards. However, EPA is not promulgating any designated uses for Florida and, therefore, does not have a basis to establish a federal nutrient-specific variance procedure to replace Florida’s state variance procedure. In addition, EPA is not finalizing the restoration water quality standards tool that was proposed. Please refer to section V.E. of the preamble to the final rule for a discussion of why EPA is not finalizing restoration water quality standards and to section V, generally, for a discussion of alternative regulatory approaches and implementation mechanisms.

Comment ID: 1482-1.001.020 Response: EPA appreciates the commenter’s concern regarding the basis for water quality standards variance requirements. EPA water quality standards regulations at 40 C.F.R. Part 131 do not provide an explicit variance procedure, however, 40 C.F.R. section 131.13 provides states the discretion to adopt variance policies and indicates that such policies are subject to EPA review and approval. EPA’s Water Quality Standards Handbook at http://www.epa.gov/waterscience/standards/handbook/chapter05.html#section3 explains that EPA first formally indicated the allowability of state WQS variance provisions in 1976 through a Decision of the General Counsel. Since then, EPA expanded on the acceptability of state WQS variance procedures through follow-up guidance. The documents cited in the Handbook are available at the above website. The Handbook also made clear that variance procedures involve the same substantive and procedural requirements as removing a designated use. Therefore, EPA expects that variances will be demonstrated using the same factors, set

11/19/2010 02:48 PM EST 2-4489Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms out at 40 C.F.R. section 131.10(g), as for a use attainability analysis (UAA) and will be submitted to EPA for review as new or revised water quality standards. It is unnecessary for Florida’s regulations to require a UAA explicitly in its regulations. To be effective under the Clean Water Act, variances must be approved by EPA and thus the state must provide the required demonstration upon submission of the variance for EPA review.

Comment ID 1530.001.041 Response: In response to the comment, as described in section V.B. of the preamble to the final rule, a variance is a temporary modification of the designated use for a waterbody and associated water quality criteria that would otherwise apply to that waterbody. Variances must be based on the same factors, set out at 40 C.F.R. section 131.10(g), as for a UAA and must be submitted to EPA for review as new or revised water quality standards. The state and/or discharger may use the time of the temporary modification to take the necessary actions to attain the designated use and/or to determine if the designated use is correct. 40 C.F.R. section 131.10(d) describes when, at a minimum, designated uses are deemed attainable. Compliance schedules are another tool available to dischargers in the State of Florida. Compliance schedules may also be used where a discharger needs time to attain its WQBEL based on the current WQS, however, a compliance schedule may not be used solely for time to determine if the use is correct.

Comment IDs: 0589.001.004, 0589.001.019 Response: EPA disagrees that the numeric nutrient criteria finalized in this rule must include a provision allowing for Acts of God. EPA’s regulation establishes water quality standards, which are goals for a waterbody. When implemented, these water quality standards serve as the foundation for determining the requirements for various pollutant discharge sources. The regulations that govern the implementation of water quality standards in these other programs appropriately include allowances for Acts of God. For example, EPA’s regulations at 40 CFR section122.62(a)(4) allow modification of an NPDES compliance schedule where good cause exists, ... “such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy.”

Comment ID: 1786-1.001.051, 1530.001.024 Response: EPA acknowledges the commenters’ restatement of EPA’s rule and confirms that the document “Guidance: Coordinating CSO Long-Term Planning With Water Quality Standards Review EPA-833-R-01-002” states the following: “...Because the underlying designated use remains (and because the variance will ultimately lapse), the rigor of the analyses and the level of demonstration used for a variance are generally less than that required for a permanent change in the use. States still need to demonstrate, however, that at least one of the six bases for a change in a use apply at least during the variance period.”

Comment ID: 1774-1.001.039

11/19/2010 02:48 PM EST 2-4490Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Response: EPA appreciates the commenter’s concern that the numeric nutrient criteria will lead to resource burdens on FDEP in handling broad scale variances. However, under the CWA, FDEP is the primary agency responsible for determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. Water quality standards, and this final rule specifically, do not specify how to achieve those standards. The State of Florida will determine how best to meet the standards in a way that meets the needs of its citizens and environment. The State may use its existing (or propose in the future) authorized regulatory relief mechanisms that allow implementation flexibility where demonstrated to be appropriate. See the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms, which describes the tools the State has at its disposal to exercise flexibility such that the rule is not a one-size-fits-all rule. EPA has worked closely with the State, providing technical assistance along with funding to the State to support sampling and analysis of existing data, to address nutrient pollution problems in Florida. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. FDEP retains the authority to move forward with its own rulemaking process at any time and EPA looks forward to working with Florida as the State implements these federal criteria while it moves to adopt its own criteria in the future. If EPA approves the State’s substitute criteria, EPA would proceed to withdraw the federal rule as no longer necessary. In addition, see response to comment ID 1482-1.001.020. Also, see section IV of the preamble to the final rule regarding withdrawal of federal standards.

Comment ID: 1786-1.001.059 Response: EPA appreciates the concern that the variance process may be burdensome and that the outcome of that process is not certain. However, EPA encourages states to work with EPA in the development of processes to determine whether a variance is appropriate and to identify the analysis that is necessary. In addition, see response to comment ID 1482-1.001.020.

Comment ID: 0625.001.002 Response: EPA appreciates the concerns of the commenter in how the numeric nutrient criteria will be implemented. Under the CWA, FDEP is the primary agency responsible for determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. Water quality standards, and this final rule specifically, do not specify how to achieve those standards. The State of Florida will determine how best to meet the standards in a way that meets the needs of its citizens and environment. The State may use its existing (or propose in the future) authorized regulatory relief mechanisms that allow implementation flexibility where demonstrated to be appropriate. See the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms, which describes the tools the State has at its disposal to exercise flexibility such that the rule is not a

11/19/2010 02:48 PM EST 2-4491Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms one-size-fits-all rule. See also response to comment ID 1774-1.001.039. 

# V.C - SITE-SPECIFIC CRITERIA Comment ID 0584-1.001.003
Author Name: Holly C. Organization: Florida Association of Counties While there will be a process for site specific criteria, this alone is not a silver bullet. Receiving approval for a site specific criterion will be a time-consuming and expensive process, which might or might not ultimately succeed in any given case. It would be much better to invest the time and effort into criteria that are more accurate, so there will be less need to deviate from them and they will be the exception rather than the rule. Each application for an alternative criterion also brings with it the risk of litigation. Each time this happens, more money is wasted on litigation, and less money is spent making actual water quality improvements. 

# Comment ID 0586.001.004
Author Name: Walden M. Organization: Alliance of Delray Residential Associations, Inc. We are strongly encouraging the EPA to establish reasonable numeric standards that are "site specific" for our area that address the broad mixed use of residential, farm and environmentally protected areas. 

# Comment ID 0627.001.005
Author Name: Stephens N. Organization: Manufacturers Association of Florida, the Florida Minerals and Chemistry Counsel, and the Florida Poultry Federation It's clear that water body's specific evaluation is the best approach to water quality standards especially when there's no demonstration of cause and effect relationships. EPA recognizes that all water bodies have unique conditions. 

# Comment ID 0633.001.001
Author Name: Gornicki P. Organization: Florida Forestry Association My name is Philip Gornicki, and I'm on staff with the Florida Forestry Association. Our association currently represents

11/19/2010 02:48 PM EST 2-4492Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms about 1600 members of Florida's Forestry community, ranging from the owners of small tractor forested lands to the largest of a full range of forest products. All of our members count on the continued ability to grow and harvest timber as part of an economically viable operation. The Florida Forestry Association shares some serious concerns regarding your nutrient proposal, and that's what I'd like to share with you now. First, our review of this proposal leads us to believe that EPA's approach does not fully recognize the natural variability of baseline of nutrients across Florida. Because EPA approach wants to paint water bodies with the broad brush, many naturally high levels of nutrient such as phosphorous are likely to be listed as impaired. Watershed result could lead to costly efforts to reduce nutrient concentrations to less than that of which naturally occurs. So, numeric nutrient criteria must be site specific. 

# Comment ID 0650.001.003
Author Name: Cox J. Organization: City of Tallahassee My second concern is the SSAC process, the moderating provisions. Once you get into this hundred percent thing, you can't get there, that's the only option up here we're offered up here. But SSACs is not an option for the City. We're not in that business of doing the research that it takes to set those things. 

# Comment ID 0656.001.003
Author Name: Bolam D. Organization: Clay County Utility Authority However, if you can't find it in your heart to do that, we would like to point out that EPA noted in the preamble to this rulemaking the exceptional job Florida did in accumulating very good scientific data in establishing the TMDLs and, in fact, noted the number of TMDLs that Florida has developed. And, as part of the rule, we would ask that you acknowledge the work that Florida has done as adequate already to develop the site-specific alternative criteria. We'd like to see, as part of the rulemaking, a mechanism to be put into the rule, to use the target criteria that were used to develop the TMDLs by Florida to calculate TMDL as SSAC. In the future, if the proposed standards are adopted, it appears to us that the only new TMDLs EPA will be able to approve are ones that demonstrate compliance with the new standards, unless an SSAC is approved. Again, EPA should recognize the science the State used to develop TMDL is site specific and therefore more accurate than the standards and allow EPA and Florida to continue to adopt TMDLs without the need for an additional SSAC determination. They should go hand in hand. 

# Comment ID 0661.001.008
Author Name: Ferguson D.

11/19/2010 02:48 PM EST 2-4493Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Florida Association of CountiesNow while there will be a process for site-specific criteria, this alone is not a silver bullet. Receiving approval for a sitespecific criterion is a time consuming and expensive process. It might or might not ultimately succeed in any given case, so it would be much better to invest the time and the effort into criteria that are more accurate so there is less need to deviate from them. They should be the exception rather than the rule. Each application for an alternative criterion also brings with it the risk of litigation. And each time this happens, more money is wasted on litigation and less money is spent on making actual water quality improvements. So for all of these reasons, the Florida Association of Counties urges you to proceed in a deliberative fashion in order to find a solution that makes sense both economically and for the environment. Thank you. 

# Comment ID 0663.001.004
Author Name: Richardson D. Organization: Gainesville Regional Utilities Thirdly, please work with DEP to develop a process for establishing site-specific alternative criteria to address specific water bodies. 

# Comment ID 0675.001.007
Author Name: Childs D. Organization: FWEA Utilities Council, the FSAWA Utility Council, and the Florida Rural Waters Association Your proposed rule confirms what we have always known; the complex relationship between nutrient and string biology require site specific nutrient standards. 

# Comment ID 0680.001.002
Author Name: Meadows A. Organization: Florida Citrus Mutual Florida Citrus Mutual has several issues with the rule as written. Numeric nutrient criteria must be site specific, otherwise healthy water bodies will be deemed impaired, and resources will be wasted attempting to make those water bodies meet nutrient concentrations they would not naturally meet, to their natural diversity. 

# Comment ID 0684.001.002

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Author Name: Fraleigh J. Organization: I'm not going to echo a lot of the same things Richard just mentioned, but I just wanted to point out some specific things in regards to your proposal that you have put of us. The numeric nutrient criteria must be set specific otherwise healthy a water bodies will be deemed impaired, and resources will be wasted in attempting to make those bodies meet nutrient concentrations they would not normally need due to the natural diversity. I think that's already been said in this and it needs to be reiterated. 

# Comment ID 0691.001.007
Author Name: Tripp K. Organization: Save the Manatee Club I've heard concerns about misclassifications of water bodies as impaired. I think the site specific alternative criterias can help deal with that, but only to help, not to be used as a loophole. 

# Comment ID 0715.001.002
Author Name: Emery S. Organization: And I want to be very quick about this because you've heard some of this before, but I want to go right to Section 5, Alternative Regulatory Approaches and Implementations, of your rule, and more specifically to Subsection C, site-specific criteria. I think from what Mr. Keating provided to everybody in the introduction, you realize there's a wealth of water quality data here in Florida and the 34,000 datapoints for lakes and he 12,000 datapoints -- I think that's only a portion of what's available. As Dr. Bachmann from the University of Florida said earlier, we already have 47 ecoregions designated in the State of Florida. So I think you could probably spend quite a bit

11/19/2010 02:48 PM EST 2-4495Chapter 2 - Comment Documents of time and effort on your site-specific criteria section, to expand upon it, make it easy, make it simple for the site specific criteria from the folks like the Tampa Bay Estuary Program, Holly Greening, the Nitrogen Consortium. There's oodles of information out there. And allow it to be a very simple, straightforward process for DEP to come to you rather than make it an onerous type of process. I think if you can do that, then we would be able to designate numeric criteria, which I think a lot of us believe that we need for specific areas, not this very, very generalized broadbrush approach. 

# Comment ID 0716.001.005
Author Name: Coughenour F. Organization: Plant City We believe that there's more certainty necessary regarding the acceptance of the TMDL that's under review right now as the alternative to that downstream standard. The site-specific alternative criteria process we think lends an unnecessary degree of uncertainty and inefficiency in the overall process. 

# Comment ID 0729.001.003
Author Name: Wong E. Organization: City of Northport So something to consider. In your rules you've allowed use of SSAC, S-S-A-C. I just wanted to let you know that DEP is charging $15,000 per SSAC per parameter. I really don't want to spend that amount of money in order to change whatever rules you finally decide on. So please consider the Alternative Regulatory Approaches and Implementation Mechanisms

11/19/2010 02:48 PM EST 2-4496Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms
natural conditions. 

# Comment ID 0745.001.003
Author Name: Frey C. Organization: City of St. Petersburg I heard mentioned that the site-specific alternative criteria cost $15,000 to develop. As I understand, that's the application fee by the Department of Environmental Protection. But to get to a position of submitting an application you have to commit, depending on the size of the watershed from tens of thousands of dollars to hundreds of thousands of dollars to develop both the background data and any scientific information you need. 

# Comment ID 0761.001.003
Author Name: Mauldin M. Organization: Pulp & Paperworkers Resource Council We feel the EPA's regional criteria ignore the variability in Florida's surface waters. Numeric nutrient criteria must be site specific, otherwise healthy water bodies will be deemed impaired and resources with be wasted attempting to make those water bodies meet nutrient concentrations that they would not naturally meet. Thank you again. 

# Comment ID 0804.001.003
Author Name: Judah R. Organization: Lee County Board of County Commissioners We're asking the South Florida Water Management District to do what the Southwest Florida Management District has done in their watershed, and that is provide essential funding to be able to collect the data that's already been assembled over the years so that it will be available to you to make those specific conditions applicable to localized areas. 

# Comment ID 0818.001.005

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Author Name: Sherreffs D. Organization: Florida Clean Water Action Over the last 26 years DEP has had its chance to protect our waters and failed to act in time to prevent these current pollution problems. In order to uphold and enforce pollution limits, it is essential that applications for site specific alternative criteria be reviewed and approved by the EPA for Florida's waters. Please revive the promise of the Clean Water Act and uphold strong, science-based numeric nutrient standards. 

# Comment ID 0822.001.008
Author Name: Hutchcraft M. Organization: King Ranch and Consolidated Citrus Secondly, we request that you utilize site specific data to take into account geographic and geologic differences to provide for more reasonable and achievable standards. As you've indicated, there's a great variety between properties. We also would suggest that you look at section five of your alternative regulatory approaches to modify and streamline your site specific standards and make them easier to get local variations based on site specific data. 

# Comment ID 0828.001.004
Author Name: Zee B. Organization: Delray Alliance We are strongly encouraging the EPA to establish reasonable numeric standards that are site specific for our area that address the broad mixed use of residential, farm and environmentally protected areas. 

# Comment ID 0846.001.003
Author Name: Martin P. Organization: Lake Worth Drainage District These standards must be site specific. I heard that earlier today. I am glad to hear that. If not, pristine water bodies will be classified as impaired, and valuable resources will be spent needlessly. 

# Comment ID 0859.001.005
Author Name: Jarriel R.

11/19/2010 02:48 PM EST 2-4498Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Loxahatchee Groves The comments made where we have specific sites and cases based on specific sites, I can see stuff like that because you have got situations in one area that's not going to happen in another.

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# Comment ID 0896-2.001.011
Author Name: * * Organization: Lee County Board of County Commissioners

• The Rule must not only allow, but encourage, the use of site specific alternative criteria when a large quantity of water quality data exists for specific water bodies or water segments. A site-specific criterion is a water quality standard that differs from the statewide standard. The site-specific standard meets the regulatory requirement of protecting a water body, but it is tailored to account for site-specific conditions. Sitespecific alternative criteria may be more or less stringent than the state standard, but in either case, must be based on sound science. 

# Comment ID 0912-1.001.002
Author Name: Davis T. Organization: Eastern Associated Terminals Company LLC We support the comments submitted to this docket by the NMC regarding the proposed water quality nutrient criteria and the use of site specific criteria that have already been established for the Tampa Bay watershed. We would urge EPA to work closely with the NMC on addressing their concerns. 

# Comment ID 0913-1.001.002
Author Name: Kelly E. Organization: Florida Native Plant Society Ideally, numeric nutrient standards would be based on the unique ecological, chemical and geological characteristics of each individual water body. EPA's heavy reliance on reference conditions as a basis for setting numeric standards is unfortunate, but necessary. DEP has endeavored for more than a decade, and expended more than $20 million over that time period, to attain a more refined level of specificity for nutrient standards. However, with few exceptions, the long-term trend in Florida's lakes, streams and estuaries has been a continuing decline in water quality. EPA's action is an important and necessary step towards reversing this trend. Our support is based on the recognition that in the future, science-based amendments for specific water bodies, and/or the adoption of more stringent standards by the state, will not be precluded by the proposed action. 

# Comment ID 0983-1.001.002
Author Name: Arnold B. Organization: Board of Sumter County Commissioners

11/19/2010 02:48 PM EST 2-4500Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Non-point and point source pollution are regularly being fought at the state and local level not just by the governmental agencies but also the private property owners, especially those in our agricultural business. All parties are willing to move to more effort to address these issues but only under the understanding that the baseline data is sound and suited to the specific conditions ofthe receiving streams/rivers and lakes. To do anything other than setting these specific standards per site is considered arbitrary and capricious. 

# Comment ID 1088-1.001.006
Author Name: Henry B. Organization: Broward County The Potential Environmental Consequences The EPA has undertaken the development of proposed nutrient water quality criteria with the intent of proposing regulations that will serve as the basis of a restorative framework for impaired Florida waters. Broward County is concerned, however, that with the current rule the EPA's efforts might instead encourage stakeholders to seek regulatory relief through the development of Site Specific Alternative Criteria and waterbody reclassification. Such an outcome will not encourage community-based actions in the pursuit of higher water quality and designated uses, but could instead stagnate water quality protection programs or lead to actual reductions in water quality with the lowering of the designated uses, avoidance of any mitigation obligations, and the potential allowance of activities that would otherwise be infeasible under a higher classification/designation.



# Comment ID 1091.001.007
Author Name: Lewis R. Organization: Chamber of Commerce of Southwest Florida On behalf of our chamber members and other local taxpayers, who support our county and municipal utilities, agriculture, tourism, and our local business enterprises, we would like to ask that the rule-making effort consider the following. Site-specific criteria that supersede the default values developed, considering loading versus concentration. The rule must not only allow but encourage the use of site specific alternative criteria when sufficient water quality data exists for specific water bodies or water segments. The site specific values would meet the regulatory requirement of protecting the water body, which is critical to both our community and to tourism, but it would be also be tailored to account for site specific conditions. 

# Comment ID 1101.001.008

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Author Name: Williamson M. Organization: Numeric nutrient criteria must be site specific; otherwise, healthy water bodies will be deemed impaired and resources will be wasted attempting to make these water bodies make nutrient concentrations that they would not naturally meet due to their diversity. 

# Comment ID 1131.001.003
Author Name: Hlis J. Organization: Little Lake Wilson Lakefront Association Federal requirements for site-specific criteria are more stringent than those of the F.E.P.A., and as such, we ask the E.P.A. to require D.E.P. to meet or exceed federal requirements for site-specific criteria. Allowing anything less would become a nutrient scheme, thereby creating great hardships for our state's numerous lakes. D.E.P. would then be allowed to downgrade water bodies and increase polluting -- pollutant loading to new levels in excedence of those currently allowed for waters of the state. If this is allowed, it would make the spirit and intent of the Clean Water Act a travesty. I just want to ask the E.P.A. not to cave in and also to talk about this in the response to the public comment. The Clean Water Act requires that fishable and swimmable uses be achieved wherever obtainable, not just wherever it is easy. And this is clearly stated in the Congressional Declaration of Goals and Policy Title 33, Chapter 26, of Chapter 1, page 1251A2. We ask once again that you make D.E.P. meet or exceed federal requirements for site-specific criteria. 

# Comment ID 1155.001.004
Author Name: Kollinger R. Organization: Polk County In addition, the proposed standards do not take into account the site -- site-specific criteria that affect water quality state-wide. Although your rule does provide for site-specific criteria to be implemented, it puts the burden back on the local municipality to fund the studies required to show the impacts from the site-specific criteria. 

# Comment ID 1176.001.005
Author Name: Tilton A. Organization: Johnson Engineering, Inc.

11/19/2010 02:48 PM EST 2-4502Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms I'm not sure why we would need to do a site-specific alternative criteria in areas that a TMDL is already established, since the EPA is involved in approving the TMDLs. I would -- and maybe I misread that, but I would hope that, if a TMDL is approved, that it already satisfies that site-specific criteria. 

# Comment ID 1217-2.001.008
Author Name: Voyles J. Organization: Mosaic Fertilizer LLC 4. EPA's support for alternative regulatory approaches is welcome, but the mechanisms proposed are too cumbersome and ill-defined to effectively provide the flexibility and regulatory relief EPA recognizes is needed. For example, EPA's proposed Site Specific Alternative Criteria ("SSACs") (i) require lengthy and duplicative approval processes at the State and federal level, and (ii) confer virtually unfettered discretion on EPA to approve or deny SSAC applications based on the most vague, minimal criteria. Mosaic believes that the SSAC process must be clarified to address potential redundancies between State and federal processes, and to better prescribe both the pertinent criteria and procedures governing SSACs to ensure both that stakeholders will undertake the considerable investment to invoke the process and that the relief will be timely, not glacial, in arriving. Additionally, some of the proposed alternative regulatory mechanisms appear inconsistent with Florida law, and thus require either clarification and/or modification. Mosaic proposes specific revisions to these mechanisms in order to ensure that they offer meaningful opportunities for appropriate regulatory relief to affected stakeholders. 

# Comment ID 1217-2.001.018
Author Name: Voyles J. Organization: Mosaic Fertilizer LLC 4. Mosaic's Comments on Alternative Regulatory Approaches and Implementation Mechanisms The Rule embraces various alternative regulatory approaches and implementation mechanisms intended to provide flexibility in the setting or application of the proposed criteria. See, generally, 75 Fed. Reg. 4,217 - 4,218. Mosaic supports these and other approaches to providing such flexibility. Mosaic submits that some modifications are needed, however, to ensure that the intended and appropriate flexibility can be timely accomplished. EPA's proposed SSACs require regulated entities to follow a complex and redundant process before SSACs will be granted. The Rule establishes an EPA SSAC process, by which the State may submit proposed SSACs to EPA and EPA alone approves. See 75 Fed. Reg. 4,226. It is unclear how this EPA process is related to the State's SSAC process.[47] While the preamble indicates that the State may follow either process, neither the Rule nor the preamble explain how the State can bypass its own process if it follows the EPA process, or how the State's process, if followed, would substitute for the EPA process. This needs to be clarified and simplified. Solution: Eliminate Redundancy Between State and Federal SSAC Processes

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More specifically, EPA needs to clarify the Rule to address specific overlaps between the two processes. Under Florida law, before the State may approve an SSAC, it is required either to submit any proposed SSAC to public notice and an opportunity for public hearing, or to undergo formal rulemaking. See Fla. Admin. Coder. 62-302.800. This means that any proposed SSAC under the Rule would have to undergo both State and Federal notice and comment. Mosaic proposes that the Rule be revised so that any SSAC that has already undergone notice and comment at the State level need not go through additional notice and comment upon submission to EPA, absent some compelling reason (i.e., a fundamental change in what was initially noticed for comment). Mosaic proposes revising Section 131.43(e)(3) to add a new section as follows: 131.43(e)(3)(A). 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 available 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 public notice issuance. 131.43(e)(3)(B). The requirements of paragraph 131.43(e)(3)(A) shall not apply to any request from the State for a site specific alternative criteria that has undergone notice and comment or rulemaking pursuant to Fla. Admin. Code r. 62­ 302.800, unless the State has made substantial or fundamental changes in the SSAC as originally noticed for comment. State requests that have undergone notice and comment or rulemaking procedures under Fla. Admin. Code r. § 62­ 302.800 shall be subject to review and approval by the Regional Administrator within 60 days, and any such State request that receives neither rejection nor approval within 60 days shall be deemed approved after 60 days. Solution: Establish Expedited SSACs to Address Absence of Dose Response Relationship EPA should provide expedited approval of any SSAC request which clearly demonstrates that there is no quantitative linkage between nutrient levels and biological impairment. To obtain expedited approval, there must be no statistically significant relationship between nutrients and the biological parameters, and the measured conditions of the biological parameters must be shown to be the same or better than those in streams with significantly lower nutrient conditions. Specifically, Mosaic proposes revising the proposed Section 131.43(e)(1) to add a new paragraph (1)(B) as follows: 141.43(e)(1)(B). Upon request from the State, the Regional Administrator shall approve within 60 days any application from the State for a site-specific alternative criteria where the State provides a Technical Support Document demonstrating the absence of a statistically significant relationship between nutrients and biological impairment, and demonstrating that the biological condition of the stream is the same or better than those of streams with significantly lower nutrient conditions. Such an SSAC must propose criteria consistent with nutrient levels in the stream existing as of the effective date of this regulation. Failure of the Regional Administrator to act within 60 days of receipt of the State's application shall constitute approval of the State's application. The Regional Administrator may only disapprove an application under this paragraph if the Regional Administrator finds that the application is either baseless or contrary to the underlying science or data. Solution: Establish Expedited SSACs Where There is a Demonstrated Dose Response Relationship

11/19/2010 02:48 PM EST 2-4504Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Additionally, the criteria EPA has established for SSACs are far too vague to provide meaningful guidance to SSAC applicants. The Rule states only that SSACs must be submitted consistent with Section 131.11, see Section 131.43(e)(1), which in turn states only that "criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect designated use."[48] This broad language renders both the applicant's target and EPA's standard of review essentially undefined. Mosaic proposes that EPA's approval of SSACs be essentially self-implementing where applicants affirmatively demonstrate a quantitative dose-response relationship and propose a protective set of causal response criteria. Demonstrated relationships must indicate a reasonable ecological linkage between nutrients and at least one aquatic community within the subject system at a trophic level expected to be influenced by nutrient conditions (e.g., benthic invertebrates, algae or submergent/emergent/floating vegetation). Specifically, Mosaic proposes revising the proposed Section 131.43(e)(1) to add a new paragraph (1)(C) as follows: 141.43(e)(1)(C) Upon request from the State, the Regional Administrator shall approve within 60 days any application from the State for a site-specific alternative criteria where the State provides a Technical Support Document demonstrating a quantitative dose response relationship and proposing a specific set of causal and response criteria. To obtain approval, the causal and response criteria must be reasonably linked through known ecological or biogeochemical relationships and clearly connected through a quantifiable and reproducible pattern. Failure of the Regional Administrator to act within 60 days of receipt of the State's application shall constitute approval of the State's application. The Regional Administrator may only disapprove an application under this paragraph if the Regional Administrator finds that the application is either baseless or contrary to the underlying science or data. Solution: Establish Expedited SSAC Where a Reclaimed Lake is Meeting its Designated Uses As discussed above, reclaimed mining lakes are meeting their designated uses but cannot meet the proposed criteria of this Rule. Because these lakes are unable to meet the criteria due to natural high levels of phosphorus, Mosaic believes that the correct approach to these lakes is to apply alternative criteria. See discussion on pages 15-19. If EPA does not accept our proposal for alternative criteria, Mosaic proposes that these lakes be eligible for an expedited SSAC based on their existing levels of TN and TP, if it can be demonstrated that the lakes are meeting their designated uses. Mosaic proposes revising Section 131.43(e)(1) to add a new paragraph (1)(D) as follows: 141.43(e)(1)(D). Upon request from the State, the Regional Administrator shall approve within 60 days any application from the State for a site-specific alternative criteria for a reclaimed lake where the State provides a Technical Support Document demonstrating that the lake is meeting its designated uses. Such an SSAC must propose criteria consistent with nutrient levels in the lake existing as of the effective date of this regulation. Failure of the Regional Administrator to act within 60 days of receipt of the State's application shall constitute approval of the State's application. The Regional Administrator may only disapprove an application under this paragraph if the Regional Administrator finds that the application is baseless, or contrary to the underlying science or data. Solution: Establish an Expedited SSAC for a "Healthy" Stream As discussed on pages 32-33, above, the criteria should not apply to streams that are not biologically impaired, based on EPA's own criteria for biological impairment. While Mosaic believes that an absence of biological impairment should constitute a per se exclusion of applicability of the criteria, if EPA does not accept this proposal Mosaic alternatively

11/19/2010 02:48 PM EST 2-4505Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms proposes that evidence establishing the absence of biological impairment should justify an expedited SSAC. Accordingly, Mosaic proposes revising section 131.43(e)(1) to add a new paragraph(1)(E) as follows: 141.43(e)(1)(E). Upon request from the State, the Regional Administrator shall approve within 60 days any application from the State for a site-specific alternative criteria for a stream where the State provides a Technical Support Document demonstrating that the stream has an SCI score of greater than 40. Such an SSAC must propose criteria consistent with nutrient levels in the stream as of the effective date of this regulation. Failure of the Regional Administrator to act within 60 days of receipt of the State's application shall constitute approval of the State's application. The Regional Administrator may only disapprove an application under this paragraph if the Regional Administrator finds that the application is either baseless or contrary to the underlying science or data.Together, the foregoing revisions will help ensure that SSACs will be granted expeditiously where (a) there is sitespecific scientific information and analysis demonstrating a specific stressor-response relationship, (b) the evidence demonstrates the absence of a relationship between nutrient levels and stream impairment, (c) a reclaimed mining lake is meeting its designated uses, or (d) a stream shows an SCI greater than 40. Since EPA correctly acknowledges that site-specific conditions often dictate the level of nutrients necessary to safeguard the biological health of waterbodies, these revisions to the Rule will enable SSAC applicants to substitute properly studied criteria for EPA's presumptive criteria, and would prevent the wasteful and unnecessary diversion of resources to nutrient reduction measures that will not result in, nor are needed to assure, desired water quality. Solution: Suspend Application of Presumptive Criteria While Application for SSAC, Variance, or RWQS is Pending EPA's effort to provide flexibility in implementation of the Rule would be undermined if the presumptive requirements of the Rule were to take effect while petitions or applications for such relief are pending. For example, as currently drafted, the Rule requires an SSAC to be approved first by the State, and then by EPA, potentially requiring two rounds of public review and comment. That process would often be very resource intensive, and the State faces severe constraints in processing these applications expeditiously. The review and approval process can easily take months or years. During that time, an applicant would be forced to choose between costly (and potentially unnecessary) treatment options or the potential for fines and penalties for non-compliance. Mosaic proposes that the Rule include an explicit provision suspending the applicability of the presumptive criteria of the Rule for any waterbody or discharge during the pendency of an application for an SSAC, variance or RWQS, provided the State has first rendered a threshold determination that the application is bona fide and merits serious consideration. Mosaic proposes adding the following section: 131.43(d)(3)(A). The State shall, within 30 days of receipt of an application, render an Initial Determination on whether, as a threshold matter, the application for an SSAC, or an RWQS pursuant to paragraphs (e) and (g), or an application for a variance pursuant to section 131.13, has a reasonable technical or scientific basis on its face. A positive Initial Determination shall not in any way prejudice or constrain the State's authority and discretion to reject an application upon its full and final review. (B). The State shall issue guidance on the elements and components the State will review in rendering an Initial Determination. (C). The criteria established in this Section shall not apply to any waterbody or discharge thereto during the pendency of an application for an SSAC, RWQS, or variance under subparagraph A that would cover such waterbody or discharge,

11/19/2010 02:48 PM EST 2-4506Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms provided the State has issued a positive Initial Determination. Solution: Resolve Conflicts with State Law Several of the provisions of the Rule appear to be in conflict with Florida law. For example, while the Rule states broadly that the State may submit an SSAC for nutrients, under current Florida law the only SSAC available for nutrients is a Type 1 SSAC which is available only where there are "natural background conditions or man-induced conditions . . . which cannot be controlled or abated." Fla. Admin. Code r. 62-302.800(1a). Type II SSACs are available for other parameters or requirements, but not for nutrients. Fla. Admin. Code r. § 62-302.800(2)(d). While the Rule preamble suggests that the State may submit a request for an SSAC under either the State or the Federal process, see 75 Fed. Reg. 4,218, it is unclear how the State can propose an SSAC that does not conform to State law, even if it is not barred by specific provisions in the Rule. Mosaic recommends adding the following language to the Rule to address this anomaly: 131.43(e)(6). Notwithstanding any other provision of State law, paragraph (e) shall apply to site specific alternative criteria for nutrients characterized as "Type II" under Fla. Admin. Code r. 62-302.800(2). 131.43(e)(7). The State may, at its discretion, submit a request for a site specific alternative criteria under subsection (e) that does not conform to the requirements of Fla. Admin. Code r. 62-302.800. Such a request will be considered under the process prescribed in paragraph (e). [47] See Fla. Admin. Code r. 62-302.800 [48] 40 C.F.R. § 131.11(a) 

# Comment ID 1224.001.004
Author Name: Levy K. Organization: Pinellas County Department of Environmental Management, Watershed Management Division In 2007, a reasonable assurance plan for Lake Seminole was approved by D.E.P. and E.P.A. So we are also requesting that the water quality criteria developed for Lake Seminole be adopted as a site-specific alternative criteria. The expenditures for Lake Seminole are going to exceed 34 million dollars by fiscal year '16. Those efforts include regional stormwater treatment and lake dredging to improve water quality. In partnership with the Florida Fish and Wildlife Conservation Commission and the Southwest Florida Water Management District, we completed all of the habitat restoration projects that were in the Lake Seminole Watershed management plan. The planning process for Lake Seminole took ten years, included a diagnostic feasibility study and a comprehensive watershed plan. And given the nature of this former estuary turned lake, the site-specific science is the more appropriate approach in this case.

11/19/2010 02:48 PM EST 2-4507Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

# Comment ID 1229.001.003
Author Name: Payne J. Organization: Farmland Reserve, Inc. doing business as Deseret Ranches of Florida It appears that a site-specific alternative criteria would have to be developed for most of the streams in my area, or at a minimum, a biological assessment on each stream to show that they are healthy. If the criteria sought to be adopted require such a large number of site-specific alternative criteria, then I believe that the proposed criteria must not be appropriate. It would be an expensive and time-consuming undertaking to develop site-specific alternative criteria on such a large percentage of streams and water bodies. 

# Comment ID 1230.001.008
Author Name: Craw V. Organization: Southwest Florida Water Management District E.P.A. should recognize existing approved state or federal total maximum daily loads, reasonable assurance plans, and basin management action plans as site-specific alternative criteria. 

# Comment ID 1255.001.009
Author Name: McLean J. Organization: City of Tampa The site-specific alternative criteria offered by the agency will require the City to spend additional hundreds of thousands of dollars to submit to the E.P.A. the current standards for consideration. 

# Comment ID 1264.001.008
Author Name: Melton K. Organization: Orlando Utilities Commission The current proposal of using SSACs to address the T.M.D.L.s is unacceptable. SSACs involves a long and cumbersome process without any guarantee of approval. Local governments cannot plan substantial investments in capital infrastructure, particularly in this -- particularly in this bad economy, without knowing whether a SSCA will be granted or if it will meet the utility's needs.

11/19/2010 02:48 PM EST 2-4508Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

Moreover, given the history of the SSCA process where only 14 SSACs have been granted in the state of Florida, none of which were for nutrients, there is little confidence that this solution will work. The unintended consequences, if not resolved, will significantly impact utility operations and result in significant additional costs to our ratepayers as well as unintended harm to the environment. Thank you for your consideration. 

# Comment ID 1296-1.001.010
Author Name: Drew H. Organization: Wood Cellulose Manufacturing Buckeye is supportive of EPA's stated intent to include, as part of the rule, a process that would allow for the development and approval of SSACs. Based on our experience with the Fenholloway River TMDL, Buckeye believes the inclusion of a SSAC approval process may provide the only viable means for a discharger to establish acceptable and attainable site-specific alternative criteria for flowing streams. As such, Buckeye is supportive of including a simple and clear SSAC development provisions in the final rule. Furthermore, Buckeye proposes including in the rule existing EPA approved nutrient TMDLs to eliminate the requirement to repeat significant scientific and engineering efforts already accomplished and approved. As indicated previously, Buckeye has expended significant resources in the development of the EPA approved TMDL for the Fenholloway River estuary and believes it must playa substantial role in the development of EPA's fmal nutrient rule for Florida, particularly as it would apply to Apalachee Bay and the Fenholloway River estuary. 

# Comment ID 1299-1.001.004
Author Name: Newlin J. Organization: Orange-Co, Inc. The EPA's regional criteria are too general and ignore the variability of our State's surface waters. Some might hail this situation, claiming "the more strict, the better". That is not true. What will happen is that, if allowed to stand as-is, otherwise healthy water bodies will be "deemed" impaired by these arbitrary standards; government and private resources will be wasted in an attempt to make those water bodies meet nutrient concentration levels they would not naturally meet due to their natural diversity. THIS WILL TAKE RESOURCES AWAY FROM, OR LIMIT THE RESOURCES AVAILABLE TO HELP FIX WATER BODIES THAT ACTUALLY DO NEED REPAIR! We would recommend the EPA review slide number thirty three (#33) of the public presentation made by EPA representatives in Ft. Myers, Florida, on April 13th. That slide indicated that the EPA includes an "Allowance for Site Specific Alternative Criteria (SSACs)". Site specific criteria are what each of Florida's water bodies deserves, not application of generalized criteria applied to broad swaths of water systems.

11/19/2010 02:48 PM EST 2-4509Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

# Comment ID 1300-1.001.003
Author Name: Newlin J. Organization: CI Groves LLC The EPA's regional criteria are too general and ignore the variability of our State's surface waters. Some might hail this situation, claiming "the more strict, the better". That is not true. What will happen is that, if allowed to stand as-is, otherwise healthy water bodies will be "deemed" impaired by these arbitrary standards; government and private resources will be wasted in an attempt to make those water bodies meet nutrient concentration levels they would not naturally meet due to their natural diversity. THIS WILL TAKE RESOURCES AWAY FROM, OR LIMIT THE RESOURCES AVAILABLE TO HELP FIX WATER BODIES THAT ACTUALLY DO NEED REPAIR! We would recommend the EPA review slide number thirty three (#33) of the public presentation made by EPA representatives in Ft. Myers, Florida, on April 13th . That slide indicated that the EPA includes an "Allowance for Site Specific Alternative Criteria (SSACs)". Site specific criteria are what each of Florida's water bodies deserves, not application of generalized criteria applied to broad swaths of water systems. 

# Comment ID 1304-1.001.003
Author Name: Stewart J. Organization: Florida Pulp and Paper Association Environmental Affairs, Inc.The final regulation must also recognize appropriate provisions to accommodate site-specific conditions, such as sitespecific alternative criteria (SSAC), Water Quality-Based Effluent Limits (WQBEL), and mixing zones, since state rules do not currently provide such relief mechanisms for nutrients. 

# Comment ID 1304-1.001.063
Author Name: Stewart J. Organization: Florida Pulp and Paper Association Environmental Affairs, Inc. At a minimum, however, the FPPAEA strongly believes that the technical deficiencies in the proposed regulations mustbe corrected and simple and clear implementing provisions, to accommodate site-specific conditions, such as sitespecific alternative criteria (SSAC), Water Quality-based Effluent Limits (WQBEL) and mixing zones, since state rules do not currently provide such relief mechanisms for nutrients, and must be included in the final rule. 

# Comment ID 1305.001.010
Author Name: Palmer D.

11/19/2010 02:48 PM EST 2-4510Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Emerald Coast Utility Authority What are our options? Is site specific available? Well, the river is very close to the estuary. The estuary has been deemed impaired by what I believe is some suspect chlorophyll data, but that's the status, it is deemed impaired. So site specific alternative criteria does not really provide relief that I can see. 

# Comment ID 1309.001.005
Author Name: Steinbrecher P. Organization: JEA The bottom line is this: EPA's proposed rules will, I think, inadvertently needlessly thwart historic process in reducing nutrient loading in the lower St. Johns River and elsewhere in the state where there are already EPA approved TMDLs that will meet all applicable water quality restoration and preservation objectives. This part of the rule is bad environmental policy. Waters that have EPA approved nutrient TMDLs right now do not need new numeric standards and, therefore, EPA's proposed rule must incorporate these existing TMDLs and sags (phonetic) as the scientifically provide nutrient criteria. Failure to adopt these TMDLs as site specific standards would mean that EPA's numeric nutrient criteria rule would represent a giant step backward, not forward. Under EPA's rule as proposed now in the Federal Register, site specific and numeric nutrient requirements previously approved by EPA under the TMDL process will be scuttled in favor of less specific regional criteria, and nutrient reduction projects will be put on hold. So, respectfully, I would ask you to do one of two things in your rule: Either adopt -- in addition to everything else you're doing in the rule, either adopt the existing EPA approved TMDLs as site specific standards for those water bodies or, two, exempt those water bodies that have EPA TMDLs from your rule. And again, gentlemen, I thank you for being here and for considering these comments. 

# Comment ID 1338-1.001.007
Author Name: Champion T. Organization: Georgia-Pacific Corporation, LLC Impediments of Site Specific Alternative Criteria as proposed: Proposal: EPA proposed the use of Site Specific Alternative Criteria (SSAC) in 40 CFR 131.43(e). Under the proposed rule, Florida DEP must submit any proposed SSAC to EPA for approval and undergo an additional public notice and comment period. The State must also submit a yet to be defined technical support document to support the SSAC. Comment: EPA's proposal undermines the significant TMDL work that has been done in Florida to establish sound and reasonable approaches to managing nutrient impairments in watersheds. The TMDL process in Florida has successfully involved stakeholders in developing solutions that have produced results, such as for the Lower St. Johns

11/19/2010 02:48 PM EST 2-4511Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms River near our Palatka mill. Nutrient reductions are critical to the St. Johns River due to the excessive nutrient loading occurring throughout the drainage basin, and a TMDL has been developed for the river to address the excess nutrient loading issue. GP's Palatka mill has made significant investment to achieve significant reductions in the nutrients discharged from the facility over the past 10 years through a number of operational changes and modifications. These changes have resulted in reduction of total nitrogen by 50% and total phosphorus by 78%. This is an example of how the TMDL process can successfully work in improving watersheds, and can have relatively quick and short term beneficial impacts. EPA's proposed approach, driven by a wide-ranging settlement that specifically does not take into account the considerations of the primary stakeholders and based on the premise that the TMDL process is too slow, does not present a sound technical approach, nor does it provide a reasonable, practical or well thought-out implementation path. 

# Comment ID 1338-1.001.009
Author Name: Champion T. Organization: Georgia-Pacific Corporation, LLC The SSAC proposal would require the resubmittal of existing TMDLs to EPA for approval, potentially including additional yet undefined technical support materials. It would also provide for an additional public notice and comment period on a TMDL that has already undergone public participation. At best, in instances in which TMDLs would be reapproved, this represents a waste of resources to develop additional technical materials and data for an approval that EPA has already granted. At worst, in cases in which existing TMDLs would not be approved, this raises questions regarding the difference in EPA's technical criteria, undermines the existing TMDL process and potentially represents a tremendous expense for dischargers that have already committed funds, built facilities and financed measures to comply with the approved TMDLs. The precedent of SSAC usurping existing TMDLs represents an issue that is of national concern, serves to undermine the TMDL program and casts doubt on the ability of dischargers to rely on TMDLs as a basis to invest in facilities.



# Comment ID 1338-1.001.020
Author Name: Champion T. Organization: Georgia-Pacific Corporation, LLC Florida rules do not allow SSACs for nutrients, also rendering this moderating provision useless. 

# Comment ID 1345.001.001
Author Name: Jackson J. Organization: Florida Golf Course Superintendents Association

11/19/2010 02:48 PM EST 2-4512Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms EPA's regional nutrient criteria ignore the variability of Florida's surface waters. Numeric nutrient criteria must be site specific; otherwise, healthy water bodies will be deemed impaired and resources will be wasted attempting to make those water bodies meet nutrient concentrations they would not naturally meet due to their natural diversity.Florida is a national leader in protecting its waters from nutrient pollution. 

# Comment ID 1350-1.001.009
Author Name: Schwartz J. Organization: American Forest & Paper Association A. Site-Specific Alternative Criteria. Florida rules include two types of site-specific alternative criteria (SSAC). Type I SSAC procedures are only applicable to address exceedances caused by natural conditions, so it generally is not available for facilities discharging nutrients into waters which would be classified as impaired under the rules,[15] and Florida's regulations do not permit Type II SSAC for nutrients. The Proposal contains a new provision whereby Florida can develop and submit a SSAC to EPA using Florida's existing SSAC procedure or the new procedures included in the Proposal. AF&PA supports this provison, but is concerned about some of the documentation EPA is requiring for approval, such as the preamble language that suggests broad watershed studies and lengthy studies of long-term responses also are necessary, beyond what is normally utilized to develop water quality standards under 40 C.F.R. 131.11. 75 Fed. Reg. at 4218. We support EPA's Proposal, because an SSAC represents a more detailed analysis of water quality stressors and responses than a statewide or ecoregional criterion. We note, however, that there are a number of procedural and substantive hurdles that must be overcome before an SSAC can be approved and become effective, and their ultimate approval is far from certain. In addition, while the Proposal discusses possible future SSACs, it is silent on the existing Florida nutrient TMDLs and SSACs that have already been approved. Significant amounts of public and private resources have been committed to those TMDL and SSAC processes, and dischargers, including AF&PA members, have made substantial financial commitments based on their outcomes. We urge EPA to recognize and approve those TMDLs and SSACs, to provide certainty to the parties that have participated in their development. 

# Comment ID 1352-1.001.007
Author Name: Herr M. Organization: Polk County Overall, the proposed EPA numeric nutrient criteria rule lacks the necessary level of scientific scrutiny. The suggested nutrient limits are simply not attainable throughout much of Polk County. Moreover, since the SSAC process will be the

11/19/2010 02:48 PM EST 2-4513Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms only vehicle to revise the proposed nutrient limits where appropriate, the cost of setting scientifically defensible nutrient targets will be shifted from the State and Federal governments to local municipalities. This will significantly impact our fiscal resources. Ultimately, the "one size fits all" approach is not an appropriate means to regulate nutrients in the State of Florida. If, due to legal constraints, the proposed criteria cannot be revised, then significant Federal funds should be made available to fund the assessments and submittals of SSACs in those watersheds where the criteria are not appropriate. 

# Comment ID 1353-1.001.006
Author Name: Barnes F. Organization: Georgia Environmental Protection Division Comment 3 - Refinement of Site Specific Alternative Criteria (SSAC) 3-1) EPD believes a SSAC process should be allowed to arrive at nutrient criteria outside the bounds proposed for each nutrient watershed region. 3-2) As part of the SSAC process, EPD believes nutrient targets derived from TMDLs could be used as applicable criteria in specific instances. 

# Comment ID 1355-1.001.004
Author Name: Barker V. Organization: Brevard County Board of County Commissioners Site Specific Alternative Criteria (SSAC): Natural systems exhibit great variability in Florida. In recognition of this, EPA has proposed a process for developing SSACs however an extreme burden of proof is placed on those who wish to request them. Alternatively, EPA could provide for easy approval/implementation of provisional alternate criteria (a "Provisional SSAC") but require monitoring of water body health for 3 to 5 years. If the health of the body remains stable or improves, then the Provisional SSAC would become permanent and the testing requirement reduced or dropped. If the body meets the Provisional SSAC but the health declines then the requirements could revert to the original NNC and additional remediation requirements could be instituted. This would place the responsibility for waterbody health at the local level and allow progress sooner rather than after lengthy debate. 

# Comment ID 1356-1.001.007
Author Name: Hayes D. Organization: Manatee Chamber of Commerce Section V.C. Site-specific Criteria

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1. EPA has criticized FDEP's approach of determining appropriate numeric nutrient criteria on a site-specific basis as "time-consuming" and "that Florida's reliance on a case-by case interpretation of its narrative criterion in implementing an otherwise comprehensive water quality framework of enforceable accountability was insufficient to ensure protectionof applicable designated uses." This is ironic in that EPA proposes the same thing by endorsing the use of the Sitespecific Alternative Criteria (SSAC) process. Instead of EPA taking the time and investing the resources to propose appropriate numeric nutrient criteria for Florida waters, EPA is proposing to hastily (12 months for lakes and flowing waters and 24 months for estuaries and coastal waters) develop generic, one-size-fits-all statewide criteria which will then require the local governments and stakeholders to invest significant time and money to evaluate, propose and adopt appropriate site-specific criteria. The SSAC process in the State of Florida is very timeconsuming and costly for the applicant. Additionally, current State standards (Chapter 62.302.800(2)(d)3) do not even allow SSACs for nutrients. It does not appear that EPA's economic evaluation includes the cost that local entities would incur trying to establish appropriate site-specific criteria through the SSAC process. We would like to see direct cost estimates for SSAC implementation in EPA' s economic evaluation estimates. Therefore, Manatee County recommends that EPA forgo the establishment of numeric nutrient criteria for Florida waters at this time and allow FDEP to continue to work with local stakeholders and the Numeric Nutrient Criteria Technical Advisory Committee to develop appropriate, scientifically defensible criteria for Florida Waters. 

# Comment ID 1359-1.001.013
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition B. Site-Specific Alternative Criteria. EPA admits that its proposed criteria for streams "may be either more stringent than necessary or not stringent enough to protect designated uses." 75 Fed. Reg. at 4192. This is an admission that its proposed stream criteria do not meet the requirements of the Clean Water Act. To ameliorate this deficiency, EPA proposes to incorporate a process for developing site-specific alternative criteria (SSAC) into its federal criteria. Florida already has a process for developing site-specific criteria in its rules. FAC 62-302.800. However, this process does not apply to nutrients. At a minimum, to employ this procedure, Florida would have to amend its regulations. Florida already is proposing to amend its regulations to provide for the development of SSAC for nutrients when an affirmative demonstration is made that the proposed aletrnative criteria are fully protective of the designated use for a specified portion of waters of the State. In addition, Florida is proposing to allow any approved TMDL for nutrients to serve as a nutrient SSAC. A SSAC, whether derived independently or from a TMDL, will represent a more detailed analysis of water quality stressors and responses than any state-wide criterion. The effect of nutrients on a waterbody will be dependent upon site-specific factors (hydrologic retention time, light penetration, pH/alkalinity, grazers, habitat conditions, etc.) so it is critical the EPA provide additional flexibility to assure that the criteria being applied are accurate for a particular waterbody. If Florida is provided the opportunity to establish and implement a streamlined process for establishing site-specific

11/19/2010 02:48 PM EST 2-4515Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms alternative criteria then many of the adverse consequences of EPA's overly-broad criteria may be ameliorated. 

# Comment ID 1359-1.001.051
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 3. EPA's proposal would allow site-specific criteria. While one of EPA's major objections to Florida's narrative standards is that the State implemented those standards on a site-specific basis, EPA's proposal would still allow Florida to adopt site-specific alternative criteria to protect designated uses. 75 Fed. Reg at 4217. The process proposed by EPA is similar to Florida's current method of implementing its narrative nutrient criteria by translating them into numeric loads or concentrations on a case-by-case basis. 75 Fed. Reg. at 4218. 

# Comment ID 1359-1.001.057
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality CoalitionSixth, criteria must set a level of protectiveness, not a load allocation. Specifically, federal criteria must not usurp sitespecific determinations of what concentration or loading of nutrients is protective, including determinations made through the TMDL process. 

# Comment ID 1364-1.001.010
Author Name: Hall T. Organization: Lee County Board of County Commissioners Southwest Florida D. The Proposed Rule Should Allow for Site Specific Criteria for Water Bodies When Significant Water Quality Data is Available Even if regional standards are established, site specific standards for every water body must be accomplished by petitioning for revised standards for specific water bodies. Consequently, the burden of establishing site specific standards for nutrients will likely fall on local governments. This will also require local governments to acquire, gather and/or provide data and studies verifying that a given site specific standard is more appropriate. Currently, Florida conducts site-specific assessment of the proposed discharges for a project to determine whether the proposed action will cause an imbalance. If the Rule is approved as currently proposed, the issuance of an NPDES permit will entail comparing the proposed discharges to the pre-established numeric standards. If the proposed discharges exceed the numeric standards, then the local government utility will either have to reduce the discharge

11/19/2010 02:48 PM EST 2-4516Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms loads, or petition to have the water quality standards for the given water body revised. A more streamlined process should be provided by the proposed Ruie to encourage, and actually facilitate, application and use of site specific criteria based on actual water quality data. 

# Comment ID 1367-1.001.002
Author Name: Massaro M. Organization: Orange County Public Works Department Under the numeric nutrient criteria, it is understood that the County would be expected to fit into a "one size fits all" nutrient load or provide site specific alternative criteria, which is similar to the FDEP's approach to determining TMDL's. One size does not fit all. The County has estimated that utilizing the EPA's Numeric Nutrient Criteria (NNC) over the FDEP's TMDL has a potential result of overstating the actual level of impairments being experienced. This, in tum, means the County would have to provide site specific alternative criteria rather than a comprehensive approach. 

# Comment ID 1370-1.001.040
Author Name: Hanson R. Organization: Orange County Utilities 6. Use water quality models calibrated with site-specific data for each major watershed (based on area and flow of distinguishing characteristics) to develop acceptable values for key response variables (e.g., chlorophyll a, dissolved oxygen, dissolved organic carbon). Use these calibrated, watershed specific models to establish the values for the numeric criteria, like the site-specific TMDL approach. 

# Comment ID 1370-1.001.074
Author Name: Hanson R. Organization: Orange County Utilities One example is the process for obtaining site-specific alternative criteria (SSAC) where it often takes years to determine the water quality criteria for discharge. The results will be significant increases in capital costs and extended delays in the implementation of projects needed to restore impaired waters. 

# Comment ID 1370-1.001.078
Author Name: Hanson R. Organization: Orange County Utilities

11/19/2010 02:48 PM EST 2-4517Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Other proposed revisions include site specific alternative criteria (SSAC) and state-issued restoration standards. The SSAC process would allow either the State of Florida(FDEP) or a regulated interest to develop a science-based alternative criteria for an impaired waterbody using adequate and appropriate local water quality data, but only allows the State to submit a proposed site specific alternatives (e.g., existing nutrient TMDL targets) to USEPA for determination. 

# Comment ID 1431-1.001.003
Author Name: Levy K. Organization: Pinellas County Department of Environmental Management, Watershed Management Division Furthermore, a major criticism of the state's approach has been on the reliance of site specific data collection and analysis to interpret narrative criteria. However, the proposed approach may in fact push more reliance on site specific analysis. 

# Comment ID 1431-1.001.004
Author Name: Levy K. Organization: Pinellas County Department of Environmental Management, Watershed Management Division Pinellas County is formally requesting that EPA approve the state and federally approved Lake Seminole Reasonable Assurance Plan as Site Specific Alternative Criteria. Furthermore, the County is also requesting that EPA approve the chlorophyll targets and associated nutrient loads for Tampa Bay as Site Specific Alternative Criteria. These standards were developed specifically to meet goals the Environmental Protection Agency supports - "the most comprehensive and scientifically defensible approach to developing numeric nutrient criteria is to relate nutrients to a measured biological response." Therefore the technical merits of these criteria should be accepted by the Environmental Protection Agency. 

# Comment ID 1431-1.001.043
Author Name: Levy K. Organization: Pinellas County Department of Environmental Management, Watershed Management Division In Conclusion Pinellas County requests that EPA accept the reasonable assurance plans for Tampa Bay and Lake Seminole as Site Specific Alternative Criteria.

11/19/2010 02:48 PM EST 2-4518Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

# Comment ID 1433-1.001.012
Author Name: McIndoe J. Organization: Alabama Department of Environmental Management Comments on Site Specific Alternative Criteria and Restoration Water Quality Standards ADEM is generally supportive of the provisions allowing for development of sitespecific alternative criteria given that the proposed criteria will be unnecessarily overprotective of designated uses in many cases. 

# Comment ID 1464-1.001.015
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. V. Alternative Regulatory Approaches There are a number of issues raised by the draft regarding alternative regulatory approaches that should be reconsidered by EPA. We object to the overly broad averaging allowed by the proposed standards in considering appropriate design flow and to the portion of the rules that appear to allow site specific standards to be developed without an adequate factual showing. 

# Comment ID 1464-1.001.017
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. B. Site Specific Alternative Criteria The approach for deriving federal site-specific alternative criteria is also problematic, in that it gives FDEP a choice whether to develop site-specific criteria either under its own procedures set forth in the Florida Administrative Code or utilize the more rigorous EPA technical processes (Fed. Reg. p. 4218). The rule should require a procedure at least as strict as that of EPA. EPA's supporting analyses specify considerably more scientific rigor than Florida's Rule 62-302. EPA "expects":

• Analysis of Instream Protective Values (IPVs) based on long-term response to multiple stressors (e.g., benthic macroinvertebrate health determined by Florida's Stream Condition Index);

• Short-term response indicator analysis (e.g., periphyton algal thickness); and

• Watershed analysis to insure that an SSAC developed for one segment does not adversely affect nearby (downstream) segments.

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By contrast, Florida's procedure for deriving SSACs merely requires:

• A description of the physical nature of the water body and its pollution sources; • A description of the historical and existing water quality of the parameter of concern;

• A description of the historical and existing biology, including variations, which may be affected by the parameter of concern;

• A discussion of any impacts of the proposed alternative criteria on the designated use of the waters and adjoining waters. Florida Administrative Code, Rule: 62-302.800 The rules should require at least the safeguards generally required by EPA before allowing a relaxed site specific standard. 

# Comment ID 1464-2.001.007
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. 5. Site-Specific Alternative Criteria (SSACs) U.S. EPA (2010a, pp. 4217-4218) proposed that FDEP can set site-specific alternative criteria, based upon recalculations from available data that meet the requirements of the Clean Water Act (Section 303(c)). According to FDEP (2008: Chapter 62-302.800, Surface Water Quality Standards - Site Specific Alternative Criteria, p.58), the state’s present SSACs do not apply to nutrients. Thus, U.S. EPA’s (2010a) proposed criteria would open nutrients to SSACs throughout the state, potentially leading to weaker criteria for many Florida waters without adequate data to support the modified criteria. 

# Comment ID 1464-2.001.035
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. Florida should be required to undergo a formal SSAC process with EPA review for each waterway for which modified standards are developed - U.S. EPA's (2010a, p.4189) proposed site-specific alternative criteria would not require FDEP to go through a formal SSAC process subject to EPA review and approval, which could result in little or no oversight of this important process by the federal agency whose charge is to ensure protection of the nation's waters. U.S. EPA (2010a, p.4189) justified this lack of requirement based on the premise that the conditions under which modified criteria are applicable are "clearly stated and the methods of calculation are clearly laid out." However, the major weaknesses inherent in the agency's draft requirement of only four data points needed per year to assess compliance of a given lake or stream would instead allow for wide latitude in determining "present" conditions in a given water body based upon inadequate data. Therefore, Florida should be required to undergo formal U.S. EPA evaluation of any proposed SSACs.

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# Comment ID 1465-1.001.002
Author Name: Ornberg K. Organization: Seminole County Public Works Seminole County Public Works appreciates the steps taken by the Environmental Protection Agency (EPA) to protect water resources through its proposed numeric nutrient criteria (NNC); however the rule as presented lacks biological confirmation of impairment necessary to adequately characterize impairment status. This lack of connection to the site conditions and biology of the water body will result in placing an undue burden on the County to develop a Site Specific Alternative Criterion (SSAC) for each waterbody erroneously listed as impaired. 

# Comment ID 1473-1.001.013
Author Name: Herz W. Organization: The Fertilizer Institute 3. EPA's proposal would allow site-specific criteria development. While one of EPA's major objections to Florida's narrative standards is that the State implemented those standards on a site-specific basis, EPA's proposal would still allow Florida to adopt site-specific alternative criteria to protect designated uses. 75 Fed. Reg. at 4217. The process proposed by EPA is similar to Florida's current method of implementing its narrative nutrient criteria by translating them into numeric loads or concentrations on a case-by-case basis. 75 Fed. Reg. at 4218. 

# Comment ID 1474-1.001.017
Author Name: Herz W. Organization: The Fertilizer Institute B. Site-Specific Alternative Criteria. EPA admits that its proposed criteria for streams "may be either more stringent than necessary or not stringent enough to protect designated uses." 75 Fed. Reg. at 4192. This is an admission that its proposed stream criteria do not meet the requirements of the Clean Water Act. To ameliorate this deficiency, EPA proposes to incorporate a process for developing site-specific alternative criteria (SSAC) into its federal criteria. Florida already has a process for developing site-specific criteria in its rules. Florida Administrative Code (FAC) 62-302.800. However, this process does not apply to nutrients for a good reason. The basis for SSAC under Florida regulations is a demonstration that the alternative criteria will lead to biologically healthy waters. Given the fact that there is no demonstrated cause-and-effect relationship between nutrients and the biological health of Florida streams, it is difficult to understand how SSAC for nutrients could

11/19/2010 02:48 PM EST 2-4521Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms
be established for streams. Florida had proposed to amend its regulations to provide for the development of SSAC for nutrients when an affirmative demonstration is made that the proposed alternative criteria are fully protective of the designated use for a specified portion of waters of the State. It may not be possible to meet this burden absent a demonstration of a stressor-response relationship. In addition, Florida had proposed to allow any approved TMDL for nutrients to serve as a nutrient SSAC. SSAC, whether derived independently or through the TMDL process, will represent a more detailed analysis of water quality stressors and responses than any state-wide criterion. TFI urges EPA to allow SSAC derived from TMDLs. The effect of nutrients on a waterbody will be dependent upon site-specific factors (hydrologic retention time, light penetration, pH/alkalinity, grazers, habitat conditions, etc.) so it is critical the EPA provide additional flexibility to assure that the criteria being applied are accurate for a particular waterbody. TFI agrees with EPA's proposal that SSAC meet the requirements of 40 C.F.R. 131.11 and suggests that EPA also require SSAC to meet the requirements of 40 C.F.R. 131.2. TFI also asks EPA to clarify its preamble language, which suggests that broad watershed studies and lengthy studies of long-term responses also are necessary, potentially beyond what is normally utilized to develop water quality standards under 40 C.F.R. 131.11. See 75 Fed. Reg. at 4218. If EPA allows Florida to implement a clear, streamlined process for adopting site-specific alternative criteria, then many of the adverse consequences of EPA's overly-broad criteria may be ameliorated. As noted in the recent meeting of Florida's Technical Advisory Committee, Florida's existing SSAC process lacks clear standards for approving SSAC so only fifteen or sixteen SSAC have been approved. Florida Department of Environmental Protection, Technical Advisory Committee, Numeric Nutrient Criteria, Public Meeting, April 7, 2010, transcript, at 73. Available at http://www.dep.state.fl.us/water/wqssp/nutrients/docs/nutrient_tac_transcript_040710_morning.pdf

. 

# Comment ID 1477-1.001.012
Author Name: Rudd F. Organization: Florida Engineering Society EPA should require biological validation before listing a water body as impaired and should provide for a clearly stated site specific alternative criteria (SSAC) process for adjusting numeric nutrient criteria as appropriate. 

# Comment ID 1480-1.001.008
Author Name: Wong E. Organization: City of Northport 3. Currently FDEP charges $15,000 per parameter for evaluating whether a Site Specific Action Criteria (SSAC) is appropriate. If the EPA rule specifies a "one size fits all" without evaluating local conditions, and a municipality requests an SSAC, this is an unnecessary burden of expense and personnel time to bear.

11/19/2010 02:48 PM EST 2-4522Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

# Comment ID 1482-1.001.022
Author Name: Hecker J. Organization: Conservancy of Southwest Florida Site Specific Alternative Criteria Finally, the preamble and draft rule indicate that EPA is proposing a federal site-specific alternative criteria procedure ("SSAC") for FDEP to use as a means to avoid complying with the nutrient critieria. EPA acknowledges that FDEP does not have the authority to consider SSAC for nutrients, but attempts to provide FDEP the authority through the draft EPA rule. The Conservancy has serious concerns about the way SSAC for other pollutants have been implemented in Florida. FDEP should go through the public rulemaking process if it would like to amend its SSAC rule to permit nutrient SSAC, where these concerns can be adequately heard. EPA should not provide FDEP an end run around the state rulemaking process. Furthermore, it would be inconsistent with EPA rules for EPA to adopt SSAC for the State of Florida, because under 40 C.F.R. §§ 131.5 and 131.21, EPA only adopts water quality criteria for a state when the state criteria fail to meet federal requirements. Instead of EPA's short-circuited SSAC process, Florida should be required to undergo a formal SSAC process with EPA review for each waterway for which modified standards are developed. Florida's SSAC procedures require rulemaking by FDEP and approval by the Environmental Regulation Commission. As changes in water quality standards, approval of SSAC by EPA is required pursuant to 40 C.F.R. § 131.5. This approval process should be no different for nutrient SSAC than any other water quality criteria adopted by the State. 

# Comment ID 1483-1.001.004
Author Name: McCrea D. Organization: Pinellas County III. Solutions: Florida's Impaired Waters Rule EPA attempted to account for the rivers and lakes that fail to comply with the proposed numeric nutrient criteria but are nevertheless biologically healthy. To account for this problem, EPA has recognized Site Specific Alternative Criteria (SSAC).[18] This concept allows interested parties to perform an extensive study to prove that a water body is healthy at certain nutrient levels, even though those levels may not be in accordance with the criteria established in the proposed rule.[19] The problem with the SSAC approach is that it is extremely costly to perform on the front end and the performance of the study has no guarantees that the SSAC will be accepted by FDEP or EPA. Any party willing to take this risk would have to be a party with considerable capital and a party with much to gain from such an engagement. There are only a few parties that would likely fit this mold: they would be big stakeholders, big industry, and potentially big polluters. The better approach, here, is to incorporate Florida's Impaired Waters Rule as a mechanism to allow a form of adaptive management to operate in the proposed rule.[20] Florida's Impaired Waters Rule is designed to place impaired waters

11/19/2010 02:48 PM EST 2-4523Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms on two lists: 1) the Planning List and 2) the Verified list. [21] Water bodies that are listed on the planning list are waters or water segments for which further assessments will be conducted to evaluate whether the water is impaired and a TMDL is needed.[22] Waters that have been placed on the planning list have yielded samples with results that deem them to be a potential candidate for impairment.[23] After further analysis, if the collected data establishes that the water is impaired pursuant to requirements of the rule, then the water will be moved to the verified list and placed on the Florida's 303(d) list.[24] The County argues that when a river is placed on the planning list for nutrients, this would be perfect time to allow FDEP and stakeholders to develop better data that would more accurately reflect the health parameters of that specific water body. EPA could use a similar model for rivers to that which it used for the lakes. The base limits upon which a river would be placed onto the planning list could be exact levels of TN and TP. However, once the water body was listed on the planning list, the rule would allow for a range in which the TN and TP values could be promulgated. If FDEP can establish representative data to calculate ambient-based, river-specific, modified TP and TN criteria, then FDEP may calculate such criteria within these bounds from ambient measurements to determine river-specific, modified criteria pursuant to CWA section 303(c). If FDEP could not provide representative data to calculate such modified criteria, then the default criteria would be the numeric nutrient criteria utilized to place the water body on the planning list. This approach would allow EPA, FDEP, and stakeholders to better account for the various inputs that affect the biological health of a stream, like its habitat structtlre, its chemical characteristics, its flow ratio, and other natural background conditions. Moreover, this approach may potentially yield a discovery of the scientifically preferred doselresponse relationship in the stream segment, which would end up placing the nutrient criteria on far firmer ground. This approach also allows EPA to make an effort to account for the complexity and variability in Florida streams, a variability that it has clearly recognized in the proposed rule.[25] And when the EPA, FDEP, and the stakeholders enter into the TMDL process for these water bodies, this approach will allow for a higher level of comfort that the proposed actions will formulate the desired results. More importantly, though, by utilizing the Impaired Waters Rule in this fashion, the public and the courts have a clear outlet to engage in and review the development of these modified criteria. The establishment of such criteria would undoubtedly be subject to review under Florida's Administrative Procedure Act. [26] Therefore, along with EPA's oversight, there will be numerous procedural protections in place to monitor the development of any modification. [18] Id. at 161-164 [l9] Id. [20] See Generally Chapter 62-303, Florida Administrative Code [21] Id. [22] 62-303.200(14), Florida Administrative Code [23] 62.303.150(1), Florida Administrative Code [24] 62.303.400, Florida Administrative Code [25] Supra note 14 [26] Supra note 23; See also 3 403.067, Florida Statutes 

# Comment ID 1530.001.015

11/19/2010 02:48 PM EST 2-4524Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority F. The Proposed Procedure for Incorporating Better Science into the Criteria via SSAC is Overly Burdensome for Sites Where TMDLs Have Been Developed, and Will Lead to Either Significant Redundant Effort or the Use of Less Appropriate Criteria. EPA has proposed a mechanism for the state of Florida to replace the proposed criteria with ones that better reflect site-specific conditions, through the use of a SSAC. For a SSAC to be approved, EPA will require the state of Florida to conduct a variety of supporting analyses. As described in the Proposed Rule, the analyses would include examination of both longer-term response indicators such as benthic macroinvertebrates, and indicators of shorter-term response specific to nutrients, such as periphyton algal thickness or chlorophyll a levels. While it may be appropriate for the state of Florida to propose a SSAC for sites where no prior study has been conducted to determine appropriate nutrient targets. The requirement that the state of Florida propose a SSAC for sites with a nutrient TMDL is wholly inappropriate, considering the extensive effort that has already been spent defining protective site-specific criteria. The criteria developed for these TMDLs are based on site-specific scientific analysis that has already received EPA approval. Requiring the state to participate in another, redundant, approval process is highly inefficient. Should the state determine that the SSAC process is too burdensome, or should EPA fail to agree with the state on details associated with the analysis to support the SSAC, the generic criteria currently proposed will remain in place. 

# Comment ID 1530.001.021
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority Putting in place a SSAC could take another 2 to 3 years minimum, So, what then is the status of the EPA numeric criteria during this 2-3 year time period? Based upon 40 C.F.R. l22,44(d), the state will be required to use these criteria in NPDES permit decisions. In the case of CCUA, as well as many other regulated utilities and other dischargers, this could lead to the waste of funds (both public and private) as utilities install expensive technologies to meet EPA's proposed criteria (and likely abandon water reuse) with no discernible environmental benefit being derived therefrom. During the time a SSAC is being developed compliance schedules should be available and can be applied to these new criteria. It is important to note that, thus far, it has been EPA's position that work on the SSAC cannot be applied to the time needed in the compliance schedule and cannot be acknowledged as being part of the compliance schedule. Compliance schedules are only for the time needed to achieve the permit limit and development of a SSAC is not part of that process. (see May 10, 2007, Memorandum, Compliance Schedules for Water QualityBased Effluent Limitations in NPDES Permits, from James A. Hanlon, Director, Office of Wastewater Management to Alexis Strauss, Director, Water Division, EPA Region 9)(hereafter "May 10, 2007 Memo"; a copy of the May 10, 2007 Memo is attached as Appendix M).

11/19/2010 02:48 PM EST 2-4525Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

Original comment letter contains additional information in a reference to May 10, 2007, Memorandum, Compliance Schedules for Water QualityBased Effluent Limitations in NPDES Permits, from James A. Hanlon, Director, Office of Wastewater Management to Alexis Strauss, Director, Water Division, EPA Region 9. See original comment letter. 

# Comment ID 1530.001.042
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority iii. Section V.C. - Site-specific Criteria In the event that the EPA does not adopt the TMDLs as SSACs, as suggested by CCUA in this Comment, then CCUA is in favor of a streamlined approach to EPA approving SSACs. In this section of the preamble, EPA proposes to establish a "federal" approach for streamlining site-specific alternative criteria. Specifically, EPA proposes EPA believes that there would be benefit in establishing a specific procedure in the Federal rule for EPA adoption of SSAC. In this rulemaking, EPA is proposing a procedure whereby the State could develop a SSAC and submit the SSAC to EPA with supporting documentation for EPA's consideration. The State SSAC could be developed under either the State SSAC procedures or EPA technical processes as set out more fully below. EPA elected to propose this approach because this procedure maintains the State in a primary decision-making role regarding development of SSAC for State waters. The procedure that EPA is proposing would also allow the State to submit a proposed SSAC to EPA without having to first go through the State's rulemaking process. There are numerous problems with this idea. First, why is this beneficial? If the state develops appropriate site-specific criteria, EPA should simply go through the regulatory process of notice and comment and remove the federally mandated criteria for that stream segment. EPA has noted in this preamble that the State has primary responsibility, therefore it makes no sense to continue with federally promulgated criteria where a state has developed site-specific criteria. It makes more sense for EPA to develop a streamlined approach to approving all the action levels established through TMDLs as site-specific state water quality criteria. Also, with this approach, it is not clear why EPA is proposing to circumvent the state rulemaking process. This seems grossly inappropriate and hard to imagine why EPA would suggest such an approach. Finally, the EPA overlooks the Florida Administrative Procedure Act. As noted above, EPA suggests that: "The procedure that EPA is proposing would also allow the State to submit a proposed SSAC to EPA without having to first go through the State's rulemaking process." EPA submits that this procedure will allow for a more streamlined approach. EPA ignores, or is ignorant of, Florida law in this regard. In the state of Florida, agencies act by rule or order. For the FDEP to propose a SSAC, such proposal would have to be the result of any agency rule or order, either of which is subject to challenge under Florida's Administrative Procedure Act. Any challenge to the FDEP's proposal to offer a SSAC could be delayed by months or, perhaps, years. That is not streamlined.

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# Comment ID 1530.001.057
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority The data generated by TMDLs include loading targets that can be used in determining a SSAC. The point here is that the state of Florida has already done an assessment of the water body and established the level of pollutant control necessary to meet the WQS and EPA has approved that assessment. This process is the same as development of a SSAC, given it is a determination of the pollutant level that can be in the water body and still achieve the designated use. 

# Comment ID 1641-1.001.004
Author Name: Littrell J. Organization: Okaloosa County Water & Sewer System The County's comments and concerns regarding the EPA's proposed Numeric Nutrient WQS legislation is discussed in the following text. In short, we have limited out review and comments to the following major topics:

• �Site Specific/Watershed Specific Water Quality Standards

• �Sources of Nutrient Loadings to Surface Waters

• �EPA's Population Growth Estimates

• �Stressor Response Relationship

• �Okaloosa County Water and Sewer System (OCWS) Description

• �Regulatiory Authority for Numeric Nutrient Criteria Development in Florida

• �Technologies Available to Achieve Compliance

• �Capital and Operation and Maintainance Costs of Compliance Each of these topics is discussed below. Site Specific/Watershed Specific Water Quality Standards EPA's proposal recognizes that performing comprehensive site specific data collection and mechanistic modeling efforts results in a more precise derivation of site specific standards and accounts for the environmental variability from site to site. EPA acknowledges that significant resources and time are required to complete these site specific analyses. In lieu of spending time and money to develop watershed specific studies so that these standards are better matched to watershed specific conditions, EPA divides the State into 4 regions and sets generalized standards for each region. EPA's proposal then provides language and alternatives, such as site specific alternative criteria and restoration standards, but then shifts the responsibility, and costs, to address watershed specific issues to the regulated party.

11/19/2010 02:48 PM EST 2-4527Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms We have very little expectation that EPA will ultimately approve the use of these alternatives given the manner in which EPA has succumbed to unreasonable external pressure to override the State's jurisdiction in the rule making process. Given the tremendous costs involved in development of a site specific alternative, the fact is that the regulated party will have to study an entire watershed, while affecting only a protion of that system, and the extreme likelihood that EPA would fail to grant such an alternative makes these alternatives simply words on a piece of paper and not true viable alternatives to the generalized standards proposed by the EPA.


# Comment ID 1645-1.001.024
Author Name: Griswold R. Organization: Destin Water Users Site specific alternative criteria are not an option since these must be subject to an administrative process open to challenge by anyone caring to do so. There is no certainty of results through this process since the decision to approve will be made by lawyers and judges and not by scientists or engineers and probably not on the basis of sound science. The proposed EPA rule is proof that science does not play a significant role in rule making at the Environmental Protection Agency. 

# Comment ID 1647-1.001.029
Author Name: Kates K. Organization: Florida Fruit and Vegetable Association Current Florida rules for site specific alternative criteria are inadequate. Per 62-302.800(1), F.A.C., a Type I SSAC is useful only in situations where minimal man-induced impacts allow demonstration of comparability of a water body to a reference water body suitable of providing an indication of natural conditions. As specified under 62-302.800(2), F.A.C., a Type II SSAC is not authorized for nutrients. Florida rules currently do not allow mixing zones for nutrients. 

# Comment ID 1671-1.001.001
Author Name: Brooks J. Organization: Florida Department of Environmental Protection The Florida Department of Environmental Protection (Department) respectfully submits our comments on the January 26, 2010 Environmental Protection Agency (EPA) proposed Numeric nutrient water quality criteria for the State of Florida's Lakes and Flowing Waters. Attached to this cover letter are numerous documents containing the Department's technical, legal, and policy evaluations of the proposed EPA action. The Department evaluated the science behind the criteria and how that science was utilized in the expression of the

11/19/2010 02:48 PM EST 2-4528Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms criteria, including any implementation provisions. With that in mind, we evaluated the proposal to determine whether the criteria were established at levels necessary to protect the designated use of Florida's lakes and flowing waters. It is critically important that the criteria are correct. Criteria values that are more stringent than necessary result in forced investment of limited public (and private) dollar's to develop site-specific alternative criteria, an activity that has no environmental benefit. In the absence of site specific criteria, overly stringent criteria forces significant investments for remediation with no associated environmental benefit. Criteria less stringent than necessary can result in failure to prevent environmental harm. Furthermore, the Department reviewed the science underlying the criteria to determine whether it was suitable to support adoption of the water quality standards, including whether appropriate regulatory provisions were included that recognize uncertainty in the analysis. The Department provided recommendations where improvements could be made based on our review.


# Comment ID 1671-1.001.009
Author Name: Brooks J. Organization: Florida Department of Environmental Protection The Department will also need to adopt the criteria and associated procedures for adoption of site specific criteria into rules. State law prohibits the Department from implementing policies or procedures that are not contained in rule. Given the administrative process for adopting rule changes, this may require two year's dependent upon any resulting rule appeal. Without appeal the administrative process would take a minimum of one year. 

# Comment ID 1671-3.001.102
Author Name: Brooks J. Organization: Florida Department of Environmental Protection K. Comments on Need for Site Specific Alternative Criteria Because expression of nutrients is dependent upon site specific factors (hydrologic retention time, light penetration, pH/alkalinity, grazers, habitat conditions, etc.), derivation of nutrient criteria requires additional flexibility to assure that the criteria are indeed accurate for a particular area. For this reason, DEP strongly supports adoption of a streamlined, predictable process for development of nutrient Site Specific Alternative Criteria (SSAC). The SSAC process must be well defined (describing sufficient water chemistry data, sufficient demonstration of achieving designated use by passing biological indices, etc.) so that the administrative burden on the petitioner, DEP, and EPA is minimized. Following this concept, DEP proposed Type III SSACs as part of our rulemaking process, and requests EPA to pursue this concept with their rulemaking. 

# Comment ID 1688-2.001.007
Author Name: Brooks J.

11/19/2010 02:48 PM EST 2-4529Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Florida Department of Environmental Protection Comment about Florida Submitting SSACs without Following it's Rulemaking Process As part of the EPA's discussion of Site-Specific Alternative Criteria (SSAC), EPA indicated that it would allow the FDEP to submit proposed SSAC without having to go through the State's rulemaking process. While this may be acceptable for federal purposes, State law requires that all decision criteria and policies be placed in regulation prior to implementation. To accomplish this, FDEP must follow all administrative requirements for the development and adoption of SSAC in order to apply such criteria as the applicable water quality standard for the waterbody. 

# Comment ID 1715-3.001.072
Author Name: Wilson C. Organization: Gunster, Yoakley & Stewart, P.A. on behalf of Everglades Agricultural Area Environmental Protection District The SSAC Process is an Inappropriate Means to Resolve Problems.

• Site-specific alternative criteria (SSAC) process is excessively burdensome and is not an appropriate mechanism to resolve the large number of acceptable water bodies that will be declared as impaired by this rule. Without a clear link to biological impairment, it will be impossible to prove that adverse impacts are not occurring.

• The proposed rule does allow indirect consideration of existing nutrient targets, through the development of SSAC. Unfortunately, the proposed method for adopting these SSAC requires FDEP to undergo a rigorous justification process to EPA (including preparation of new technical support documents) for water quality targets that have already been approved by USEPA as part of the TMDL process. This approach is highly inefficient and will either lead to redundant effort (should FDEP choose to go through the justification process) or adoption of the inferior criteria.

• No direct biological criteria were considered as the basis for declaring waters as impaired, so can such data (i.e. documenting the existence of an excellent fishery or healthy macroinvertebrate communities) be considered as the basis for a SSAC? No proof was provided by USEPA to demonstrate impaired use of a specific water body beyond the presumed presence of elevated nutrient concentrations. The burden of proof is thus placed on the agency to define the designated use, define a threshold for impairment of that use, and then present evidence that conditions that presently exist in the system do not cause impairment. There is no standard by which successful unimpairment can be determined, as evidenced by the decision that 25% of sites that meet acceptable biological criteria as reference sites are nevertheless considered to be impaired due to excessive nutrient concentrations. USEPA still has the prerogative, despite any biological evidence, to consider the water body as impaired if it perceives that nutrient concentrations are excessive. 

# Comment ID 1761-3.001.005
Author Name: Merrill M. Organization: Hillsborough County 4. Within the document, where it has been identified that the criteria may be overly protective or not protective enough,

11/19/2010 02:48 PM EST 2-4530Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms EPA has identified the SSAC process as the mechanism to resolve these issues. The SSAC process as implemented within Florida historically has been a costly and difficult process to go through and there have only been a handful of SSACs that have been adopted. EPA needs to consider this process in its development of costs to implement these criteria. Within the Federal Register Document, there are numerous areas where it is clear that waterbodies within Florida exist that will need SSACs in order to assure that overly protective criteria are not applied, these are pointed out within the comments. EPA needs to assure that if the rules are promulgated that these types of errors are limited wherever possible, and that ties to biological response within systems is emphasized. 

# Comment ID 1767-1.001.006
Author Name: Vinson R. Organization: TGA Sod LP and Turfgrass America Rather than allowing for occasional "Site Specific Alternative Criteria", the EPA should, in cooperation with Florida's Department of Environmental Regulation, spend the time and hard work necessary to develop the correct criteria for each water body. This would be helpful, and much more beneficial to the State of Florida than rushing to throw together a set of numbers without site-specific, scientific basis under an artificial time constraint. 

# Comment ID 1767-1.001.009
Author Name: Vinson R. Organization: TGA Sod LP and Turfgrass America If this occurred in order to correct site-specific, scientifically determined actual significant impairments to water resources, maybe the loss of some Florida farmers would be worth it. HOWEVER, this is completely untenable if this happens due to generalized, broad -brush numeric standards that are not site-specific, nor take into consideration the high variability in naturally occurring elements. 

# Comment ID 1768-1.001.007
Author Name: Armingeon N. Organization: St. Johns River Keeper

• The EPA should require that any site-specific-alternative-criteria (SSAC) adopted by Florida should at a minimum meet the EPA/federal expectations and contain all of EPA's safeguards before they would allow a relaxed site specific standard. Currently, Florida's 62- 302.800 F.A.C. does not meet the federal requirements. At the behest of polluters, the DEP has used the SSAC process in the lower St. Johns River to short circuit meaningful nutrient reduction efforts. We believe the EPA's proposed use of SSACs should be allowed on a case-by-case basis and be based upon site specific data, not general EPA guidelines.

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# Comment ID 1769-1.001.006
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa It is true that the site-specific analysis may result in a lengthy process, but this process leads to the development of criteria that are scientifically defensible. The State could adopt an approach similar to EPA and assign criteria to an entire region without regard to the natural biology of the waters or the environment, but this quick-fix solution is not scientifically appropriate. A hurriedly adopted standard that is not grounded in good science is inferior to a more slowly adopted standard that is scientifically based. The biology of the Florida waters is complex and the number of water bodies is vast. However, the complexity of these systems is what makes it important to set standards recognizing these differences. These different water systems have long been recognized by the State and the goal of protecting these waters has been a top priority. 

# Comment ID 1769-1.001.021
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa 2. EPA Should Incorporate Approved Site Specific Criteria Section 303(c)(3) ofthe Clean Water Act provides: If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this Act, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this Act, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. In some situations, the State has already established numeric nutrient criteria for springs. The EPA did not determine that these standards were not consistent with the Clean Water Act. Therefore, the EPA's attempts to ignore the previously accepted state standards and implement new numeric criteria is not legally supported. For example, in 2006, the DEP adopted specific nutrient standard for wastewater management in Wekivia Springs in Rule 62-600.550, Florida Administrative Code. Depending on the type and location of wastewater treatment facilities' applications systems, the total nitrogen annual average for reclaimed water varies between 3.0, 6.0, and 10.0 mg/L. However, in order to ensure the reclaimed water application does not cause or contribute to the 0.35 mg/L TN criteria for springs under the Proposed Rules, these wastewater facilities will be forced to implement additional advanced

11/19/2010 02:48 PM EST 2-4532Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms wastewater treatment methods to reduce the total nitrogen levels of reclaimed water to levels lower than those determined to be acceptable under the DEP rules. In order to avoid this unnecessary additional treatment for no environmental benefit, we recommend the EPA exempt or create an automatic SSAC for Wekivia Springs and other areas where the state has already adopted numeric standards. 

# Comment ID 1769-1.001.034
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of City of Cocoa B. Existing Watershed Specific Criteria Should Be Incorporated In areas where TMDLs and BMAPs have already been established, the site specific model and criteria should be substituted for SPARROW model and the proposed criteria. Site-specific information more accurately reflects the conditions of the watershed and incorporates the surrounding habitat, biology and geology in determining what nutrient levels the watershed can handle without becoming impaired. Technically defensible and accepted load estimates do exist for Tampa Bay, Indian River Lagoon, Sarasota Bay, and Charlotte Harbor, among others. These loading estimates should be used, along with data concerning estuarine conditions, to determine estuarine protective loads. The current proposal of using SSACs to address areas with TMDLs is unacceptable. SSAC's involve a long and cumbersome process without any guarantee of approval. Local govemments cannot plan substantial investments in capital infrastructure, particularly in the bad economy, without knowing whether a SSAC will be granted or if it will meet the needs. Moreover, given the history of the SSAC process where only 14 SSACs have been granted in Florida, none of which were for nutrients, there is little confidence that this solution will work. 

# Comment ID 1770-1.001.024
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Plant City It is true that the site-specific analysis may result in a lengthy process, but this process leads to the development of criteria that are scientifically defensible. The State could adopt an approach similar to EPA and assign criteria to an entire region without regard to the natural biology of the waters or the environment, but this quick-fix solution is not scientifically appropriate. A hurriedly adopted standard that is not grounded in good science is inferior to a more slowly adopted standard that is scientifically based. The biology of the Florida waters is complex and the number of water bodies is vast. However, the complexity of these systems is what makes it important to set standards recognizing these differences. These different water systems have long been recognized by the State and the goal of protecting these waters has been a top priority.

11/19/2010 02:48 PM EST 2-4533Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

# Comment ID 1770-1.001.045
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 2. EPA Should Incorporate Approved Site Specific Criteria Section 303(c)(3) of the Clean Water Act provides: If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this Act, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this Act, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. In some situations, the State has already established numeric nutrient criteria for springs. The EPA did not determine that these standards were not consistent with the Clean Water Act. Therefore, the EPA's attempts to ignore the previously accepted state standards and implement new numeric criteria is not legally supported. For example, in 2006, the DEP adopted specific nutrient standard for wastewater management in Wekivia Springs in Rule 62-600.550, Florida Administrative Code. Depending on the type and location of wastewater treatment facilities' applications systems, the total nitrogen armual average for reclaimed water varies between 3.0, 6.0, and 10.0 mg/L. However, in order to ensure the reclaimed water application does not cause or contribute to the 0.35 mglL TN criteria for springs under the Proposed Rules, these wastewater facilities will be forced to implement additional advanced wastewater treatment methods to reduce the total nitrogen levels of reclaimed water to levels lower than those determined to be acceptable under the DEP rules. In order to avoid this unnecessary additional treatment for no environmental benefit, we recommend the EPA exempt or create an automatic SSAC for Wekivia Springs and other areas where the state has already adopted numeric criteria. 

# Comment ID 1770-1.001.058
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Plant City B. Existing Watershed Specific Criteria Should Be Incorporated In areas where TMDLs and BMAPs have already been established, the site specific model and criteria should be substituted for SPARROW model and the proposed criteria. Site-specific information more accurately reflects the conditions of the watershed and incorporates the surrounding habitat, biology and geology in determining what nutrient

11/19/2010 02:48 PM EST 2-4534Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms levels the watershed can handle without becoming impaired. Technically defensible and accepted load estimates do exist for Tampa Bay, Indian River Lagoon, Sarasota Bay, and Charlotte Harbor, among others. These loading estimates should be used, along with data concerning estuarine conditions, to determine estuarine protective loads. The current proposal of using SSACs to address areas with TMDLs is unacceptable. SSAC's involve a long and cumbersome process without any guarantee of approval. Local governments cannot plan substantial investments in capital infrastructure, particularly in the bad economy, without knowing whether a SSAC will be granted or if it will meet the needs. Moreover, given the history of the SSAC process where only 14 SSACs have been granted in Florida, none of which were for nutrients, there is little confidence that this solution will work. 

# Comment ID 1771-1.001.031
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County It is true that the site-specific analysis may result in a lengthy process, but this process leads to the development of criteria that are scientifically defensible. The State could adopt an approach similar to EPA and assign criteria to an entire region without regard to the natural biology of the waters or the environment, but this quick-fix solution is not scientifically appropriate. A hurriedly adopted standard that is not grounded in good science is inferior to a more slowly adopted standard that is scientifically based. The biology of the Florida waters is complex and the number of water bodies is vast. However, the complexity of these systems is what makes it important to set standards recognizing these differences. These different water systems have long been recognized by the State and the goal of protecting these waters has been a top priority. 

# Comment ID 1771-1.001.055
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County 2. EPA Should Incorporate Approved Site Specific Criteria Section 303(c)(3) of the Clean Water Act provides: If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this Act, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this Act, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection.

11/19/2010 02:48 PM EST 2-4535Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms In some situations, the State has already established numeric nutrient criteria for springs. The EPA did not determine that these standards were not consistent with the Clean Water Act. Therefore, the EPA's attempts to ignore the previously accepted state standards and implement new numeric criteria is not legally supported. For example, in 2006, the DEP adopted specific nutrient standard for wastewater management in Wekiva Springs in Rule 62-600.550, Florida Administrative Code. Depending on the type and location of wastewater treatment facilities' applications systems, the total nitrogen annual average for reclaimed water varies between 3.0, 6.0, and 10.0 mg/L. However, in order to ensure the reclaimed water application does not cause or contribute to the 0.35 mg/L TN criteria for springs under the Proposed Rules, these wastewater facilities will be forced to implement additional advanced wastewater treatment methods to reduce the total nitrogen levels of reclaimed water to levels lower than those determined to be acceptable under the DEP rules. In order to avoid this unnecessary additional treatment for no environmental benefit, we recommend the EPA exempt or create an automatic SSAC for Wekiva Springs and other areas where the state has already adopted numeric criteria.

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# Comment ID 1771-1.001.068
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Seminole County B. Existing Watershed Specific Criteria Should Be Incorporated In areas where TMDLs and BMAPs have already been established, the site specific model and criteria should be substituted for SPARROW model and the proposed criteria. Site-specific information more accurately reflects the conditions of the watershed and incorporates the surrounding habitat, biology and geology in determining what nutrient levels the watershed can handle without becoming impaired. Technically defensible and accepted load estimates do exist for Tampa Bay, Indian River Lagoon, Sarasota Bay, and Charlotte Harbor, among others. These loading estimates should be used, along with data concerning estuarine conditions, to determine estuarine protective loads. The current proposal of using SSACs to address areas with TMDLs is unacceptable. SSAC's involve a long and cumbersome process without any guarantee of approval. Local governments cannot plan substantial investments in capital infrastructure, particularly in the bad economy, without knowing whether a SSAC will be granted or if it will meet the needs. Moreover, given the history of the SSAC process where only 14 SSACs have been granted in Florida, none of which were for nutrients, there is little confidence that this solution will work. 

# Comment ID 1772-1.001.025
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville It is true that the site-specific analysis may result in a lengthy process, but this process leads to the development of criteria that are scientifically defensible. The State could adopt an approach similar to EPA and assign criteria to an entire region without regard to the natural biology of the waters or the environment, but this quick-fix solution is not scientifically appropriate. A hurriedly adopted standard that is not grounded in good science is inferior to a more slowly adopted standard that is scientifically based. The biology of the Florida waters is complex and the number of water bodies is vast. However, the complexity of these systems is what makes it important to set standards recognizing these differences. These different water systems have long been recognized by the State and the goal of protecting these waters has been a top priority. 

# Comment ID 1772-1.001.049
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville 2. EPA Should Incorporate Approved Site Specific Criteria

11/19/2010 02:48 PM EST 2-4537Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

Section 303(c)(3) of the Clean Water Act provides: If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this Act, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this Act, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. In some situations, the State has already established numeric nutrient criteria for springs. The EPA did not determine that these standards were not consistent with the Clean Water Act. Therefore, the EPA's attempts to ignore the previously accepted state standards and implement new numeric criteria is not legally supported. For example, in 2006, the DEP adopted specific nutrient standard for wastewater management in Wekivia Springs in Rule 62-600.550, Florida Administrative Code. Depending on the type and location of wastewater treatment facilities' applications systems, the total nitrogen annual average for reclaimed water varies between 3.0, 6.0, and 10.0 mg/L. However, in order to ensure the reclaimed water application does not cause or contribute to the 0.35 mg/L TN criteria for springs under the Proposed Rules, these wastewater facilities will be forced to implement additional advanced wastewater treatment methods to reduce the total nitrogen levels of reclaimed water to levels lower than those determined to be acceptable under the DEP rules. In order to avoid this unnecessary additional treatment for no environmental benefit, we recommend the EPA exempt or create an automatic SSAC for Wekivia Springs and other areas where the state has already adopted numeric criteria. 

# Comment ID 1772-1.001.061
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of City of Titusville B. Existing Watershed Specific Criteria Should Be Incorporated In areas where TMDLs and BMAPs have already been established, the site specific model and criteria should be substituted for SFARROW model and the proposed criteria. Site-specific information more accurately reflects the conditions of the watershed and incorporates the surrounding habitat, biology and geology in determining what nutrient levels the watershed can handle without becoming impaired. Technically defensible and accepted load estimates do exist for Tampa Bay, Indian River Lagoon, Sarasota Bay, and Charlotte Harbor, among others. These loading estimates should be used, along with data concerning estuarine conditions, to determine estuarine protective loads. The City of Titusville currently participates in the development of the Indian River Lagoon BMAP. WElDs 2963F and 2963E are of particular concern to Titusville. The reduction required for Total Nitrogen and Total Phosphorus are shown below.

11/19/2010 02:48 PM EST 2-4538Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

Original comment letter contains additional information in two table on page 35 of 39 titled Total Nitrogen and Total Phosphorus. See original comment letter. As a result of the BMAP, the City will have to implement a series of structural and nonstructural best management practices to ensure improvement of water quality. We will be assigned an annual allocation of nutrients that must be mitigated and the BMAP will specify how the City will mitigate the allocation. Accountability will be achieved through DEP's enforcement ofthe City's NPDES permit. A SSAC is not a realistic relief mechanism for the City of Titusville and other communities working to protect and improve the water quality of the Indian River Lagoon. In the past 35 years, DEP and EPA have only approved a total of 14 SSAC's in the State of Florida, most of which were for dissolved oxygen in deep lakes created out of phosphate milling pits and none have been issued for nutrients. The risk that the SSAC will not be granted or that the decision will be delayed for years, will derail current efforts to protect the Indian River Lagoon and will unnecessarily burden the public with costs incurred to obtain the SSAC. SSACs involve a long and cumbersome process without any guarantee of approval. Local governments cannot plan substantial investments in capital infrastructure, particularly in the bad economy, without knowing whether a SSAC will be granted or if it will meet the needs of the utility. In sum, EPA has an obligation to the public to set the best possible standards and not rely on the SSAC to correct obvious mistakes. 

# Comment ID 1773-1.001.028
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission It is true that the site-specific analysis may result in a lengthy process, but this process leads to the development of criteria that are scientifically defensible. The State could adopt an approach similar to EPA and assign criteria to an entire region without regard to the natural biology of the waters or the environment, but this quick-fix solution is not scientifically appropriate. A hurriedly adopted standard that is not grounded in good science is inferior to a more slowly adopted standard that is scientifically based. The biology of the Florida waters is complex and the number of water bodies is vast. However, the complexity of these systems is what makes it important to set standards recognizing these differences. These different water systems have long been recognized by the State and the goal of protecting these waters has been a top priority. 

# Comment ID 1773-1.001.050
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission 2. EPA Should Incorporate Approved Site Specific Criteria Section 303(c)(3) of the Clean Water Act provides:

11/19/2010 02:48 PM EST 2-4539Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this Act, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this Act, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. In some situations, the State has already established numeric nutrient criteria for springs. The EPA did not determine that these standards were not consistent with the Clean Water Act. Therefore, the EPA's attempts to ignore the previously accepted state standards and implement new numeric criteria is not legally supported. For example, in 2006, the DEP adopted specific nutrient standard for wastewater management in Wekivia Springs in Rule 62-600.550, Florida Administrative Code. Depending on the type and location of wastewater treatment facilities' applications systems, the total nitrogen annual average for reclaimed water varies between 3.0, 6.0, and 10.0 mg/L. However, in order to ensure the reclaimed water application does not cause or contribute to the 0.35 mgIL TN criteria for springs under the Proposed Rules, these wastewater facilities will be forced to implement additional advanced wastewater treatment methods to reduce the total nitrogen levels of reclaimed water to levels lower than those determined to be acceptable under the DEP rules. In order to avoid this unnecessary additional treatment for no environmental benefit, we recommend the EPA exempt or create an automatic SSAC for Wekivia Springs and other areas where the state has already adopted numeric criteria. 

# Comment ID 1773-1.001.061
Author Name: de la Parte, Jr. E. Organization: de la Parte & Gilbert, P.A. on behalf of Orlando Utilities Commission B. Existing Watershed Specific Criteria Should Be Incorporated In areas where TMDLs and BMAPs have already been established, the site specific model and criteria should be substituted for SPARROW model and the proposed criteria. Site-specific information more accurately reflects the conditions of the watershed and incorporates the surrounding habitat, biology and geology in determining what nutrient levels the watershed can handle without becoming impaired. Technically defensible and accepted load estimates do exist for Tampa Bay, Indian River Lagoon, Sarasota Bay, and Charlotte Harbor, among others. These loading estimates should be used, along with data concerning estuarine conditions, to determine estuarine protective loads. The current proposal of using SSACs to address areas with TMDLs is unacceptable. SSAC's involve a long and cumbersome process without any guarantee of approval. Local governments cannot plan substantial investments in capital infrastructure, particularly in the bad economy, without knowing whether a SSAC will be granted or if it will meet the needs. Moreover, given the history of the SSAC process where only 14 SSACs have been granted in Florida, none of which were for nutrients, there is little confidence that this solution will work.

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# Comment ID 1774-1.001.040
Author Name: Payne J. Organization: Farmland Reserve, Inc. doing business as Deseret Ranches of Florida

• The existing Type II SSAC process will not work for nutrients. While EPA rules contemplate a compliance schedule or variance process, Florida law does not allow such if it results in non-compliance with a more stringent federal standard. 

# Comment ID 1774.001.020
Author Name: Payne J. Organization: Farmland Reserve, Inc. doing business as Deseret Ranches of Florida Comments on Need for Site Specific Alternative Criteria It appears that a site specific alternative criteria would have to be developed for a large number of the streams in my area. If the criteria sought to be adopted requires such a large number of site specific alternative criteria to be developed then the proposed criteria must not be appropriate. It would be an expensive and time consuming undertaking to develop site specific alternative criteria on such a large percentage of streams and water bodies. Due to the temporal variability in concentrations of nutrients observed in flowing water bodies here at Deseret and because the impact of nutrients on ecosystems is so dependent on site specific factors, we are adamant in our support for additional flexibility in administering numeric nutrient criteria. We support the FDEP's assertion that a streamlined, predictable process for development of nutrient Site Specific Alternative Criteria (SSAC) be included in the rulemaking process. The SSAC process must include sufficient water quality data and a demonstration of achieving the designated use based on biologic indices in a manner that is not overly burdensome to the petitioner or the regulatory agencies. 

# Comment ID 1777-2.001.004
Author Name: Blanchard B. Organization: Florida Department of Transportation 3. Within the document, where it has been identified that the criteria may be overly protective or not protective enough, EPA has identified the SSAC process as the mechanism to resolve these issues. The SSAC process as implemented within Florida historically has been a costly and difficult process to go through and there have only been a handful of SSACs that have been adopted. EPA needs to consider this process in its development of costs to implement these criteria. Within the Federal Register Document, there are numerous areas where it is clear that waterbodies within Florida exist that will need SSACs in order to assure that overly protective criteria are not applied, these are pointed out within the comments. EPA needs to assure that if the rules are promulgated that these types of errors are limited

11/19/2010 02:48 PM EST 2-4541Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms wherever possible, and that ties to biological response within systems is emphasized. 

# Comment ID 1780-1.001.009
Author Name: Piper R. Organization: Florida Power and Light Company The opportunity to apply for site specific alternative criteria (SSACs) for such TMDL waters (to re-justify the TMDLs) is not an adequate solution to this problem. The SSAC process would be expensive and unnecessary, and typically it takes a very long time to finalize. Additionally, SSAC approvals by EPA often are litigated by various Florida environmental advocacy groups, consuming even more time. Requiring EPA-approved nutrients TMDLs to be justified through multi-year SSAC approval processes would result in a long period of regulatory uncertainty. 

# Comment ID 1781-1.001.004
Author Name: Roy N. Organization: Clean Water Network (3) the rules that appear to allow site specific criteria to be adopted without following normal federal procedures; 

# Comment ID 1782-1.001.029
Author Name: Childs D. Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment Association Utility Council, and Florida Section of the American Water Works Association Utility Council Of course, the state could attempt to secure site specific alternative criteria for the unimpaired waters swept up by EPA's proposed rule and wrongly declared impaired, but this too would require a significant expenditure of state resources. Also, if a stated objective of EPA's proposed rule is to make the state program easier to administer by eliminating the need for time consuming site specific analyses through the TMDL program, then how is that objective served when the proposed standards bear such little relation with reality that the state will need to pursue numerous exceptions to the rule on site specific bases? 

# Comment ID 1782-1.001.035
Author Name: Childs D. Organization: Hopping Green & Sams, P.A., on behalf of Florida Rural Water Association, Florida Water Environment Association Utility Council, and Florida Section of the American Water Works Association Utility Council

11/19/2010 02:48 PM EST 2-4542Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms NPDES permittees will be forced to comply with EPA's standards in the form of "end of the pipe" effluent limits. The only "relief" available under EPA's proposal would be securing a SSAC for the water body or applying for a "restoration standard." These relief mechanisms are only needed because of the crudeness of EPA's proposed criteria. With respect to the SSAC process, a regulated entity would be forced to do what EPA should have done in the first instance: derive a nutrient standard that bears a meaningful relationship with the water environment (i.e. actually determine the levels of nutrients needed by a specific water body). 

# Comment ID 1784-1.001.002
Author Name: Cunningham T. Organization: Gainesville Regional Utilities This document serves as Gainesville Regional Utilities (GRU) formal comments to the proposed EPA Numeric Nutrient Criteria. Our primary concerns regarding the EPA proposed numeric nutrient criteria as follows:
1. EPA's proposed numeric nutrient criteria are established regionally and are not site specific, and are not based on sound science. 2. Florida's TMDL process does develop criteria that are site specific and based on sound science. 3. TMDLs should be adopted as site specific alternative criteria (SSAC). 

# Comment ID 1784-1.001.004
Author Name: Cunningham T. Organization: Gainesville Regional Utilities 5. The SSAC process should be streamlined, cost-effective, and simplified. 

# Comment ID 1784-1.001.025
Author Name: Cunningham T. Organization: Gainesville Regional Utilities VI. Sweetwater Branch Does Not Exhibit Problems with Nutrients: The Orange Creek Basin has a TMDL for the Alachua Sink System which is a productive habitat with numerous wildlife species including many birds and alligators, but does not meet the TMDL for Trophic Site Index (TSI). The Main Street Water Reclamation Facility (MSWRF) discharges to a creek system, Sweetwater Branch, which conveys the treated effluent to a manmade canal, then to Alachua Sink. Sweetwater Branch is not impaired for nutrients due primarily to the shady conditions, natural canopy, and fast-flowing stream characteristics. There are no algal blooms present and through the TMDL process it was

11/19/2010 02:48 PM EST 2-4543Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms determined not to be impaired for Total Nitrogen or Total Phosphorus. Sweetwater Branch is a unique stream to sink system with the lower portion receiving approximately 67% of its baseflow contributed from the MSWRF. The EPA website explicitly states on their website that the primary environmental problem to be solved by numeric nutrient criteria is to reduce nutrients in the environment to reduce harmful algal blooms. Since Sweetwater Branch, in the lower portion, does not contain any algal blooms because of the unique characteristics, numeric nutrient criteria as currently promulgated would require improvements to the MSWRF to protect Sweetwater Branch from a problem that does not exist thus the need for site specific alternative criteria (SSAC). 

# Comment ID 1784-1.001.033
Author Name: Cunningham T. Organization: Gainesville Regional Utilities XI. Site Specific Alternative Criteria and Water Use Reclassification: If the Numeric Nutrient Criteria is adopted as proposed, we formally request a reasonable Site Specific Alternative Criteria (SSAC) methodology that would allow a sufficient timeframe and detailed analysis to evaluate and establish site and waterbody specific criteria based uponsound science relative to specific waterbodies. The process should be streamlined, cost-effective, predictable, and welldefined to make it realistic for individual entities to consider as an alternative. Specifically, we support the FDEP proposed Type III SSAC process continue in rulemaking and urge EPA to support it. This rule development for the SSAC should include provisions for site specific alternative criteria for environmental features such as Sweetwater Branch, Alachua Sink, and Lake Kanapaha. As described throughout this paper, Sweetwater Branch and Alachua Sink are two unique environmental features that are specific to the Gainesville area. They have both been studied and evaluated extensively and the local community, government agencies, and environmental groups have identified action plans to restore the nature and water quality of these features. Assessing the biological health status of a waterbody,and determining the cause of any impairments (nutrients versus other factors), would ensure the proper and most costeffective restoration strategy would be pursued to meet standards established by DEP and EPA. Spending resources reducing nutrients when either the site is biologically healthy or when some other factor is responsible for biological degradation (e.g. habitat or hydrology) would waste limited restoration resources with no environmental benefit. Biological confirmation and stressor identification must be part of stream criteria, especially given the relative lack of dose-response relationship and the limitations of the reference site approach. The FDEP water use reclassification proposed rule recognizes urban impacts to streams and provides a basis for developing achievable nutrient criteria. The reclassification process should be implemented, because it provides a site specific and waterbody specific analysis of environmental systems. It is also important that mixing zones be allowed to offer flexibility and the ability to use natural systems to meet the numeric nutrient criteria. 

# Comment ID 1784-1.001.036
Author Name: Cunningham T.

11/19/2010 02:48 PM EST 2-4544Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Gainesville Regional Utilities 1. The EPA's proposed numeric nutrient criteria are established regionally and are not site specific and are not based on sound science. 2. Florida's TMDL process does develop criteria that are site specific and based on sound science. 3. TMDLs should be adopted as site specific alternative criteria (SSAC). 

# Comment ID 1784-1.001.038
Author Name: Cunningham T. Organization: Gainesville Regional Utilities 5. The SSAC process should be streamlined, cost-effective, and simplified. 

# Comment ID 1785-1.001.014
Author Name: Hall T. Organization: Lee County Board of County Commissioners Southwest Florida D. The Proposed Rule Should Allow for Site Specific Criteria for Water Bodies When Significant Water Quality Data is Available Even if regional standards are established, site specific standards for every water body must be accomplished by petitioning for revised standards for specific water bodies. Consequently, the burden of establishing site specific standards for nutrients will likely fall on local governments. This will also require local governments to acquire, gather and/or provide data and studies verifying that a given site specific standard is more appropriate. Currently, Florida conducts site-specific assessment of the proposed discharges for a project to determine whether the proposed action will cause an imbalance. If the Rule is approved as currently proposed, the issuance of an NPDES permit will entail comparing the proposed discharges to the pre-established numeric standards. If the proposed discharges exceed the numeric standards, then the local government utility will either have to reduce the discharge loads, or petition to have the water quality standards for the given water body revised. A more streamlined process should be provided by the proposed Rule to encourage, and actually facilitate, application and use of site specific criteria based on actual water quality data. 

# Comment ID 1785-1.001.026
Author Name: Hall T. Organization: Lee County Board of County Commissioners Southwest Florida

11/19/2010 02:48 PM EST 2-4545Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

• EPA's proposed Rule should be based on sound science and should encourage the use of site specific alternative criteria when site specific water quality data exists.

• The proposed Rule establishes a "one size fits all" approach which does not recognize the unique attributes and needs of the Caloosahatchee River and other water bodies in South Florida. 

# Comment ID 1786-1.001.015
Author Name: Kirk K. Organization: National Association of Clean Water Agencies Florida's current narrative criterion for nutrients states that: "In no case shall nutrient concentrations of a body of water be altered as to cause an imbalance in natural populations of aquatic flora or fauna." Florida currently implements this criterion on a site-specific basis, identifying the level of nutrients that would cause an imbalance and then translating that level into site-specific numeric targets. FDEP evaluates site-specific data on the trophic state, chlorophyll a values, and other water quality conditions such as algal blooms, excessive macrophyte growth, and the state of submerged aquatic vegetation to determine if there are any impairments of beneficial uses. 

# Comment ID 1786-1.001.031
Author Name: Kirk K. Organization: National Association of Clean Water Agencies As part of EPA's proposed methodology, TMDL calculations that have, or will be performed can be used to set the target criteria, which EPA refers to as a site-specific alternative criteria. It is not clear how the proposed downstream protective values would be used as the criteria for waterbodies where TMDL calculations have been performed, or will be performed in the future. The uncertainty associated with changing water quality criteria associated with unknown future TMDL calculations is an additional concern to NACWA. 

# Comment ID 1786-1.001.049
Author Name: Kirk K. Organization: National Association of Clean Water Agencies

• As proposed, EPA is allowing the development of site-specific alternative criteria (SSAC) where data and analyses show that the regional criteria may be inappropriate. NACWA supports the proposal to establish a federal procedure for adoption of SSAC in Florida that will obviate the need to formally withdraw the federally-promulgated criteria. The proposal also uses this SSAC process to allow Florida to preserve some of its existing program. If a TMDL has been done for a waterbody, Florida can use the target established in the TMDL as a SSAC. EPA also indicates that a future TMDL that establishes a target may be used as a SSAC. NACWA believes this is an essential element that will help to minimize some of the impacts of the proposed criteria on the existing Florida program. That said, NACWA understands

11/19/2010 02:48 PM EST 2-4546Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms from its members in Florida that additional details will be needed on exactly how this process of converting TMDL target values into SSACs will work. 

# Comment ID 1788-1.001.001
Author Name: Fisher D. Organization: Osceola County Osceola County appreciates the steps taken by the Environmental Protection Agency (EPA) to protect water resources through its proposed numeric nutrient criteria (NNC); however the rule as presented lacks a connection to the scientific conditions that cause waterbodies to be impaired in Osceola County. This lack of connection to the site conditions and biology of the water body will result in placing an undue burden on the County to develop a Site Specific Alternative Criterion (SSAC) for each waterbody erroneously listed as impaired. Specific comments to the proposed rule include:
1. Incorporate site conditions as verification of impairment conditions Applying the proposed criteria to waterbodies in Osceola County yields a significant number of additional waterbodies that would be classified as impaired, presented in Figure 1 below. The additional number of impairments is not as concerning as the discontinuity and inconsistency between the listing of the waterbody as impaired and a waterbody's limiting nutrient. If the proposed NNC is adopted, one of the newly impaired waters, Lake Hatchineha, would be considered in violation of the proposed nutrient criteria as a response to target nutrient values changing over time for both total nitrogen (TN) and total phosphorus (TP). 

# Comment ID 1788-1.001.003
Author Name: Fisher D. Organization: Osceola County For lakes and streams in Osceola County, it is recommended that the rule have a provision to provide verification of impairment through scientific or biological measures rather than placing the burden on the County to develop costly SSAC for each parameter within a waterbody when incorporating additional data into the verification process likely clears up the erroneously impairment listings. 

# Comment ID 1790-1.001.010
Author Name: Rota M.

11/19/2010 02:48 PM EST 2-4547Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: Gulf Restoration Network 4. Rules should not allow for site specific criteria to be adopted without following normal federal procedures. According to the proposed rules, it appears that Florida DEP could develop site-specific criteria under its own procedures instead of the more scientifically rigorous federal rules. The rules should at least require the safeguards generally required by EPA before allowing a relaxed site specific standard. Also it should be emphasized that existing uses must be protected at all times, thus even if UAAs or site specific criteria are utilized by Florida, the goal should be to improve existing conditions, protect existing uses, and protect downstream uses. 

# Comment ID 1794-1.001.028
Author Name: Taylor W. Organization: US Department of the Interior The draft EPA approach may not be suitable to adequately demonstrate degradation under an inappropriate nutrient standard in order to have the standard changed to one expected to be more protective via the proposal of Site Specific Alternative Criteria. This process requires that shortcomings are outlined, including description of potential ecological damage that have may have already occurred. As a result, refinement to the USEPA's approach may be more appropriate in developing waterbody-specific criteria that embrace the inherent differences both among and within the various sections of the unique waters that are emblematic of Florida. 

# Comment ID 1795-1.001.002
Author Name: Palmer D. Organization: Emerald Coast Utility Authority Our new plant will discharge mainly to two industrial users. It also has an option to discharge to small ancillary sprayfields to help with the transitions between peak flows and flows to industries. These sprayfields are very close to wetlands which discharge to a river. Additionally one of the industries will have times when parts of its process will be down and our reuse water will be used and discharged with their cooling water for a limited time. The other industry will use our reuse water in their process to replace high quality groundwater and then discharge it with their wastewater. The proposed standards of this rule, especially for the Panhandle where we are located, are so low that it would cause these industries to reject our water, as our agreements state they can, if we cause them to violate their permit. We have limited options for compliance. It may be possible to get a Site Specific Alternative Criteria (SSAC ) approved for the first industry as this is a limited time occurrence; however, there is a downstream estuary nearby which has been deemed impaired due to chlorophyll a. Therefore a SSAC approval is doubtful. The second industry has a WQBEL established and their best option for compliance would be a SSAC. If that does not get approved they will most likely close. Other options for compliance would be to find upland areas for disposal or we might be able to treat to meet the new standard.

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# Comment ID 1797-1.001.012
Author Name: Braswell S. Organization: Florida Farm Bureau

c. Site-Specific Criteria Currently, the state's site specific alternative criteria (SSAC) rules are inadequate, offering only a Type I SSAC or a Type II SSAC. A Type I SSAC is useful only in limited circumstances where minimal man-induced impacts allow demonstration of comparability of a water body to a reference water body suitable of providing an indication of natural conditions.[22] In addition, a Type II SSAC is not authorized for nutrients.[23] The current state SSAC process is extremely expensive and time consuming. In the State of Florida, SSAC have only been permitted in limited circumstances. In fact, the FDEP recognized in their March 12, 2010, "Review of Proposed Criteria for the Protection of Streams and Springs/Clear Streams," that: "Because expression of nutrients is dependent upon site specific factors (hydrologic retention time, light penetration, pH/alkalinity, grazers, habitat condition, etc.), derivation of nutrient criteria requires additional flexibility to assure that the criteria are indeed accurate for a particular area. For this reason, DEP strongly supports adoption of a streamlined, predictable process for development of nutrient Site Specific Alternative Criteria (SSAC). The SSAC process must be well defined (describing sufficient water chemistry data, sufficient demonstration of achieving designated use by passing biological indices, etc.) so that the administrative burden on the petitioner, DEP, and EPA is minimized." [24]

[22] Fla. Admin. Code r. 62-302.800(1) (2007) [23] Fla. Admin. Code r. 56-302.800(2)(d) (2007) [24] Florida Department of Environmental Protection, Division of Environmental Assessment and Restoration, Review of Proposed Criteria for the Protection of Streams and Springs/Clear Streams, Proposed January 26, 2010 by the Environmental Protection Agency, March 12, 2010, 44-45. (review draft) 

# Comment ID 1805-3.001.004
Author Name: Gallagher J. Organization: Pasco County 3. Within the document, where it has been identified that the criteria may be overly protective or not protective enough, EPA has identified the SSAC process as the mechanism to resolve these issues. The SSAC process as implemented within Florida historically has been a costly and difficult process to go through and there have only been a handful of SSACs that have been adopted. EPA needs to consider this process in its development of costs to implement these

11/19/2010 02:48 PM EST 2-4549Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms criteria. Within the Federal Register Document, there are numerous areas where it is clear that waterbodies within Florida exist that will need SSACs in order to assure that overly protective criteria are not applied, these are pointed out within the comments. EPA needs to assure that if the rules are promulgated that these types of errors are limited wherever possible, and that ties to biological response within systems is emphasized. 

# Comment ID 1813-1.001.005
Author Name: Britt M. Organization: Natural Resources Division, City of Winter Haven 4) Site Specific Alternative Criteria needs to be friendly, inclusive and efficient. Localities such as Winter Haven that have invested significantly in developing long-range plans should be encouraged to proceed with community based efforts. Also, local communities should have a choice as to whether protecting existing water quality is just as important as restoring impaired water quality. 

# Comment ID 1834-4.001.019
Author Name: Bronson C. Organization: Florida Department of Agriculture and Consumer Services EPA has proposed a mechanism for the state of Florida to replace the proposed criteria with ones that better reflect site-specific conditions, through the use of site-specific alternate criteria (SSAC). For a SSAC to be approved, EPA will require the state of Florida to conduct a variety of supporting analyses. As described in the Proposed Rule, the analyses would include examination of both longer-term response indicators such as benthic macroinvertebrates, and indicators of shorter-term response specific to nutrients, such as periphyton algal thickness or chlorophyll levels. While it may be appropriate for the state of Florida to propose a SSAC for sites where no prior study has been conducted to determine appropriate nutrient targets. The requirement that the state of Florida propose SSAC for sites with a properly developed nutrient TMDL is wholly inappropriate, considering the extensive effort that has already been spent defining protective site-specific criteria. The criteria developed for these TMDLs are based on site-specific scientific analyses that have already received EPA approval. Requiring the state to participate in another, redundant, approval process is highly inefficient. Should the state determine that the SSAC process is too burdensome, or should EPA fail to agree with the state on details associated with the analysis to support the SSAC, the generic criteria currently proposed will remain in place. 

# Comment ID 1836.001.046
Author Name: Moore D. Organization: Southwest Florida Water Management District E . Alternative Regulatory Approaches and Implementation Mechanisms: Site- Specific Alternative Criteria

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35. USEPA should recognize existing, approved State or Federal Total Maximum Daily Loads (TMDLs), Reasonable Assurance Plans (RA Plans) and Basin Management Action Plans (BMAPs) as site-specific alternative criteria (page 4217, proposed rule). USEPA-approved nutrient TMDLs are numeric expressions of nutrient standards that include margins of safety, waste load allocations and load allocations, and provide for full aquatic life protection and maintenance of designated uses of water bodies. These TMDLs have established nutrient loading limits based on ascientifically rigorous process . As such, an established nutrient TMDL should be adequate for establishment of a sitespecific nutrient standard. 

# Comment ID 1836.001.049
Author Name: Moore D. Organization: Southwest Florida Water Management District 38 . USEPA should describe the funding assistance that may be available from Federal sources for BMAP establishment or SSAC development (monitoring, reporting, management action support) (page 4217, proposed rule). 

# Comment ID 1837-1.001.007
Author Name: Brom M. Organization: PCS Administration, Inc., and White Springs Agricultural Chemicals, Inc. doing business as PCS Phosphate- White Springs

• The implementation of this proposed rule is insufficiently defined. In its discussion of implementation and potential relief mechanisms (site specific alternative criteria, variances, restoration standards, etc.), EPA presumes that a significant portion of regulated interests will seek to avail themselves of one or the other of those mechanisms. The standards under which those relief mechanisms are to operate are not sufficiently defined to allow the regulated interests to realistically assess the applicability or the likelihood of success in qualifying for or obtaining any such relief mechanisms. The process discussed in the proposal for a Federal SSAC, for example, appears to be inconsistent with Florida law, and therefore unavailable. While PotashCorp believes that there is no justification for adoption of numeric nutrient criteria at all, they should clearly not be considered for adoption until the process and mechanism for reasonable and consistent implementation under the Clean Water Act and Florida law are fully defined and the impacts are fully evaluated. Implementation of these criteria would be particularly expensive and, in many cases, impracticable, for existing installations. Regulated interests have substantial investment-backed expectations for continued operation. If EPA proceeds with adoption of these criteria, the Agency should consider additional relief mechanisms for existing installations, including, but not limited to, full or partial exemptions, extended compliance schedules, and streamlined SSAC processes.

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# Comment ID 2233-1.001.030
Author Name: Kovach C. Organization: CF Industries 6. Site Specific Alternative Criteria - Proposed 40 C.F.R. § 131.43(e) Florida has no mechanism for granting a site specific alternative criterion (SSAC) for nutrients. Under existing state law, nutrient SSACs are affirmatively prohibited. See Rule 62-303.800(2)(d), Fla. Admin. Code. A SSAC is a water quality criterion and, as such, must be adopted consistent with State law. The Florida DEP adopts SSACs by administrative rule. Proposed rules in Florida are subject to challenge before a Florida Division of Administrative Hearings (DOAH) Administrative Law Judge (AU). The DOAH AU issues a Final Order determining whether an agency's proposed rule is a lawful exercise of the agency's delegated legislative authority and that the rule is not otherwise arbitrary and capricious. If the AU upholds the proposed rule, and in this case a proposed SSAC, the judge's final order may be appealed in the Florida appellate courts. If a proposed SSAC survives the DOAH hearing and a State court appeal, the SSAC, as change to Florida water quality standards, must be submitted to EPA for approval under § 303(c) of the Clean Water Act. Under existing procedures, EPA's decision to approve a State submitted SSAC is subject to challenge in the U. S. District Court under the federal Administrative Procedure Act. EPA's proposed rule provides an added public comment period before its approval of a SSAC is finalized and the opportunity to file an APA claim arises. In short, even if Florida law provided for a nutrient SSAC, the procedure for getting a SSAC approved is long and cumbersome and can be delayed literally for years by administrative challenges, State court appeals, and federal court APA actions. While a SSAC is a potentially appropriate tool for correcting a necessarily crude regional or statewide criterion, existing State law prohibits such relief for nutrients, and existing State and federal administrative procedures makes a SSAC more hope than reality.[27] [27] The Florida DEP has issued less than a dozen SSACs in the more than thirty years the SSAC process has been available in Florida-none of which were for nutrients due to prohibitory language in the existing rule. 

# Comment ID 2233.001.010
Author Name: Kovach C. Organization: CF Industries 7. EPA's regulatory proposal does not adequately consider implementation strategies or realistic relief mechanisms. While CF acknowledges that the Agency attempted to address challenges in implementing the proposed rule with its concepts of Restoration WQS and a federal Site Specific Alternative Criteria (SSAC) process, CF is concerned that the high number of waters for which such relief may be necessary will result in a backlog of requests, leaving facilities unable to comply in a timely fashion with the proposed criteria once finalized. Moreover, it the Restoration WQS

11/19/2010 02:48 PM EST 2-4552Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms process appears to be cumbersome and to lack flexibility. CF is also concerned that the federal SSAC appears to be redundant and potentially conflicting with the State SSAC process. 

# Comment ID 2233.001.013
Author Name: Kovach C. Organization: CF Industries -EPA should acknowledge the effectiveness and value of stakeholder approaches toward nutrient management like the Tampa Bay NMC and include such approaches in setting meaningful site-specific criteria on a watershed basis. 

# Comment ID 2400.001.002
Author Name: Hlis J. Organization: Little Lake Wilson Lakefront Association Federal Requirements for Site Specific Criteria are more stringent than those of the FDEP, and as such, the Little Lake Wilson Lakefront Association asks the EPA to require FDEP to meet or exceed federal requirements for Site Specific Criteria. Allowing anything less would become a "Nutrient Scheme" thereby creating great hardships for our state's numerous lakes. FDEP would then be allowed to downgrade waterbodies and increase pollutant loading to new levels in exceedence of those currently allowed for Waters of the State. This is a fact which can not be denied! If this is allowed, it would make the spirit and intent of the Clean Water Act a travesty. EPA, please, do not cave in! The Clean Water Act requires that fishable and swimmable uses be achieved wherever attainable, not just wherever it is easy. This is clearly stated in the Congressional Declaration Of Goals and Policy, Title 33, Chapter 26, Subchapter 1, page 1251, (a)(2) . Please reread this and make FDEP meet or exceed federal requirements for Site Specific Criteria . 

# Response Comment IDs: 0584-1.001.003, 0586.001.004, 0627.001.005, 0633.001.001, 0650.001.003, 0661.001.008, 0663.001.004, 0675.001.007, 0715.001.002, 0729.001.003, 0745.001.003, 0818.001.005, 0822.001.008, 0828.001.004, 0859.001.005, 0896­ 2.001.011, 0983-1.001.002, 1088-1.001.006, 1091.001.007, 1131.001.003, 1155.001.004, 1217-2.001.008, 1229.001.003, 1255.001.009, 1299-1.001.004, 1300.001.003, 1304-1.001.003, 1304-1.001.063, 1305.001.010, 1338-1.001.020, 1350-1.001.009, 1352-1.001.007, 1353-1.001.006, 1355-1.001.004, 1356-1.001.007, 1359-1.001.013, 1364-1.001.010, 1370-1.001.040, 1370­ 1.001.074, 1370-1.001.078, 1433-1.001.012, 1464-1.001.015, 1464-1.001.017, 1464-2.001.007, 1464-2.001.035, 1474-1.001.017, 1480-1.001.008, 1482-1.001.022, 1530.001.021, 1530.001.042, 1641-1.001.004, 1645-1.001.024, 1647-1.001.029, 1671-1.001.001, 1671-3.001.102, 1715-3.001.072, 1761-3.001.005, 1767-1.001.006, 1767-1.001.009, 1768-1.001.007, 1769-1.001.006, 1770­ 1.001.024, 1770-1.001.058, 1771-1.001.031, 1771-1.001.068, 1772-1.001.025, 1772-1.001.061, 1773-1.001.028, 1773-1.001.061, 1774-1.001.040, 1774.001.020, 1777-2.001.004, 1781-1.001.004, 1782-1.001.035, 1784-1.001.002, 1784-1.001.004, 1784­ 1.001.025, 1784-1.001.033, 1784-1.001.036, 1784-1.001.038, 1785-1.001.014, 1785-1.001.026, 1786-1.001.015, 1788-1.001.001, 1790-1.001.010, 1794-1.001.028, 1795-1.001.002, 1797-1.001.012, 1805-3.001.004, 1813-1.001.005, 1837-1.001.007, 2233­

11/19/2010 02:48 PM EST 2-4553Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms
1.001.030, 2233.001.010, 2233.001.013, 2400.001.002 Response: EPA refers the commenter to the preamble of the final rule which discusses the federal Site-Specific Alternative Criteria process, in particular section V.C Site-Specific Alternative Criteria, which explains a specific procedure, finalized in federal rule, for EPA adoption of site-specific alternative criteria (SSAC). EPA provides clarification on the roles and responsibilities of the Agency and Florida Department of Environmental Protection (FDEP) in administering this procedure, clarification regarding FDEP’s current regulatory SSAC process and how this process differs from EPA’s federal SSAC procedure, and the Agency’s authority to enact this procedure. EPA also provides additional guidance for a federal SSAC submittal. EPA notes that FDEP retains the authority to move forward with its own rulemaking process at any time to establish a State SSAC process for nutrients, or other regulatory relief mechanisms, and may submit such mechanisms to EPA for review under section 303(c) of the Clean Water Act. Under CWA, FDEP is the primary agency responsible for determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. EPA disagrees that the numeric nutrient criteria in this final rule are too broad-based to be applicable to Florida’s waters. EPA reminds commenters that these final numeric nutrient criteria are derived to account for the natural variability exhibited in Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive scientifically defensible numeric nutrient criteria. Florida established the designated uses which are applicable to Florida's waters, are consistent with the Clean Water Act, and are set to manage clean water program objectives for Florida’s waters affected by this final rule. The numeric nutrient criteria finalized in this rule establish water quality levels for nutrients that are necessary to support these uses. These numeric nutrient criteria for Florida’s lakes and flowing waters will apply in addition to any other existing CWA-effective criteria for Class I and Class III waters already adopted by the State and submitted to EPA (and for those adopted after May 30, 2000, submitted to and approved by EPA). As noted in the preamble to this final rule, section V.C Site-Specific Alternative Criteria, an alternative to the numeric nutrient criteria promulgated by EPA may be warranted to account for site-specific conditions. SSAC may be appropriate when additional scientific consideration can bring added precision or accuracy to express the necessary level or concentration of a water quality parameter that is protective of the designated use. 40 CFR 131.11 requires that water quality criteria, including SSAC, be based in sound science and ensure the protection and maintenance of downstream water quality standards. SSAC may be more or less stringent than the otherwise applicable federal numeric criteria. In either case, because the SSAC must protect the same designated use and must be based on sound science, there is no need to modify the designated use or conduct a use attainability analysis (UAA). SSAC would only become the effective criteria for a particular waterbody upon determination of the Regional Administrator, consistent with EPA’s implementing regulations at 40 CFR 131.11. The numeric nutrient criteria finalized in thisrule are the effective criteria for purposes of the CWA until EPA determines that alternative criteria are in place as federal sitespecific alternative criteria. The federal SSAC procedure includes public notice of proposed SSAC and solicitation of public input.

Comment IDs: 0633.001.001, 0680.001.002, 0684.001.002, 0691.001.007, 0761.001.003, 0846.001.003, 1101.001.008, 1299­ 1.001.004, 1300-1.001.003, 1345.001.001, 1770-1.001.024, 1771-1.001.031, 1772-1.001.025, 1773-1.001.028, 1782-1.001.029,

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1782-1.001.035 Response: EPA refers commenters to the preamble to the final rule, in particular section III. Numeric Criteria for Streams, Lakes, and Springs the State of Florida, which discusses the derivation of the numeric nutrient criteria, derived to account for the natural variability exhibited in Florida's lakes and flowing waters. EPA relied on an extensive amount of Florida-specific data and technical analyses to derive scientifically defensible numeric nutrient criteria. Florida established the designated uses which are applicable to Florida's waters, are consistent with the Clean Water Act, and are set to manage clean water program objectives for Florida’s waters affected by EPA's rule. EPA’s numeric nutrient criteria establish nutrient levels necessary to support these uses. EPA recognizes there are situations when further scientific data and analyses can bring added precision or accuracy to express the necessary level or concentration of chl-a, TN, TP, and/or nitrate+nitrite that protects the designated use for a particular waterbody.As a result, EPA has included a federal SSAC procedure in its final rulemaking which allows EPA to determine that a revised sitespecific chl-a, TN, TP, or nitrate+nitrite numeric criterion should apply in lieu of the generally applicable criteria promulgated in this final rule, where that SSAC is demonstrated to be protective of the applicable designated use(s). EPA refers the commenter to the preamble to the final rule, in particular section V.C Site-Specific Alternative Criteria, which explains a specific procedure, finalized in federal rule, for EPA adoption of SSAC and the final rule language regarding EPA’s federal SSAC process. EPA provides clarification on the federal SSAC process and the roles and responsibilities of the Agency in administering this procedure.

Comment IDs: 0656.001.003, 0716.001.005, 0912-1.001.002, 0913-1.001.002, 1176.001.005, 1224.001.004, 1230.001.008, 1264.001.008, 1296-1.001.010, 1309.001.005, 1338-1.001.007, 1338-1.001.009, 1350-1.001.009, 1353-1.01.006, 1359-1.001.013, 1359-1.001.057, 1367-1.001.002, 1431-1.001.004, 1431-1.001.043, 1474-1.001.017, 1530.001.015, 1530.001.042, 1530.001.057, 1715-3.001.072, 1769-1.001.034, 1770-1.001.045, 1770-1.001.058, 1771-1.001.055, 1771-1.001.068, 1772-1.001.049, 1772­ 1.001.061, 1773-1.001.050, 1773-1.001.061, 1780-1.001.009, 1784-1.001.002, 1784-1.001.036, 1786-1.001.031, 1786-1.001.049, 1834-4.001.019, 1836.001.046, 1836.001.049, 2233.001.013 Response: EPA appreciates the comment regarding the request to use existing TMDL targets as SSAC without submitting the targets to EPA for approval under section 303(c) of the Clean Water Act (CWA). Commenters have requested that nutrient targets developed through the TMDL process (existing FDEP nutrient TMDLs that have been approved by EPA) automatically serve as site-specific alternative numeric nutrient criteria. EPA agrees that TMDL targets have the potential to serve has SSAC. However, in light of the substantial information analyzed in conjunction with these rulemaking, and to ensure that a proper process of notice and comment is undertaken, EPA believes that the federal SSAC procedure in the final rule is the appropriate mechanism and means of incorporating TMDL targets into the federal WQS for Florida waters. In terms of understanding how EPA’s numeric nutrient criteria will affect restoration plans and implementation programs already underway (including BMAPs), some existing TMDLs translate the same portion of Florida’s narrative criterion, Rule 62­ 302.530(47)(b) F.A.C., as EPA has translated to derive its numeric criteria, e.g. “no imbalance in natural populations of aquatic flora and fauna.” The permitting authority must ensure that any permit issuance or re-issuance include water quality based effluent limitations that are as stringent as necessary to meet the promulgated numeric criteria, pursuant to CWA section 301(b)(1)(C) and 40 CFR 122.44(d)(1). These existing TMDLs will likely include information that is relevant and helpful in evaluating necessary discharge limitations, such as consideration of other sources of the pollutant and hydrodynamics of the waterbody. EPA

11/19/2010 02:48 PM EST 2-4555Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms recommends that existing TMDLs that are based on translation of 62-302.530(47)(b) F.A.C., ("no imbalance in natural population of aquatic flora and fauna") undergo a two-part evaluation. The first step is to assess whether the waterbody is still, in fact, water quality-limited (impaired) using the new numeric WQC. If the waterbody is still water quality-limited, then a second evaluation should be conducted to determine whether the existing TMDL based on the narrative is sufficient to meet the new numeric criterion, and in turn, whether or not it may be appropriate to revise the TMDL. The State may also wish to submit the TMDL water quality target derived by translating the narrative for consideration as a federal SSAC. Other existing TMDLs translate another part of Florida’s narrative nutrient criterion, Rule 62-302.530(47)(a) F.A.C. This provision provides that nitrogen/phosphorus pollution shall be limited so as to prevent violation of another Florida WQS. Where a TMDL water quality target was developed as a translation of this part of Florida's narrative nutrient criterion (for example, that amount of nitrogen/phosphorus that would not cause excursions of Florida's dissolved oxygen WQS), the appropriate WQBEL is the more stringent result of applying the TMDL WLA or the promulgated numeric criteria. Please refer to the preamble associated with this final rule, in particular section III.E Applicability of Criteria When Final. Under the Clean Water Act (CWA), Florida Department of Environmental Protection (FDEP) is the primary agency responsible for determining how to implement water quality programs in the State with oversight and support by EPA. As such, EPA defers to FDEP in administering applicable CWA programs consistent with the CWA and EPA’s implementing regulations. EPA has worked closely with the State, providing technical assistance, along with funding to the State to support sampling and analysis of existing data, to address nitrogen/phosphorus pollution problems in Florida. EPA will continue to collaborate with FDEP as the State implements the numeric nutrient criteria finalized as part of this rule, which will be the effective criteria for purposes of the Clean Water Act. EPA also notes that on June 7, 2010, EPA and Plaintiffs filed a joint notice with the Court extending the deadlines for promulgating numeric nutrient criteria for Florida's estuaries and coastal waters, flowing waters in south Florida (including canals), and the downstream protection values for flowing waters into estuaries and coastal waters. The new deadlines are November 14, 2011 for proposal and August 15, 2012 for publishing a final rule for these three categories. This will allow EPA time to have the scientific methodologies for developing the criteria included in EPA's November 2011 rulemaking peer-reviewed by EPA’s Science Advisory Board.

Comment ID: 0804.001.003 Response: EPA appreciates the comment, however, this comment is outside the scope of EPA’s rule.

Comment ID: 1217-2.001.018 Response: EPA appreciates the detailed recommendations to inform EPA’s federal SSAC process, however, EPA disagrees that EPA’s process will require entities to follow a complex and redundant process before SSACs are granted. EPA refers thecommenter to the final preamble discussion of the federal Site-Specific Alternative Criteria process, in particular section V.C SiteSpecific Alternative Criteria, which explains a specific procedure, finalized in federal rule, for EPA adoption of site-specific alternative criteria (SSAC). EPA provides clarification on the roles and responsibilities of the Agency and Florida Department of

11/19/2010 02:48 PM EST 2-4556Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Environmental Protection (FDEP) in administering this procedure, in addition to clarification regarding FDEP’s current regulatory SSAC process and how this process differs from EPA’s federal SSAC procedure and the Agency’s authority to enact this procedure.

EPA also disagrees that the Agency should establish expedited SSACs to address (1) absence of dose response relationships, (2) where there is a demonstrated dose response relationship that should allow for a self-implementing procedure, (3) where a reclaimed lake is meeting its designated uses, (4) streams that are not biologically impaired and should be excluded from EPA’s federal numeric nutrient criteria, and (5) suspension of the application of EPA’s presumptive criteria while application for SSAC, variances, or other regulatory relief mechanisms are pending. These may or may not be valid reasons for SSAC, with supporting analyses, but the federal SSAC process is the appropriate mechanism and means of establishing site-specific criteria. Worthy requests should indeed be expedited to the extent possible. EPA also disagrees with commenter’s assertion that EPA’s rule is in conflict with Florida law, as well as similar comments in ID 1671-1.001.009 and 1688-2.001.007. The numeric criteria finalized in this rule for Florida’s lakes and flowing waters will apply in addition to any other existing CWA-effective criteria for Class I or Class III waters already adopted by the State and submitted to EPA (and for those adopted after May 30, 2000, adopted and submitted by FDEP and approved by EPA). FDEP retains the authority to move forward with its own rulemaking process at any time to establish State numeric criteria and to submit such criteria to EPA for review and approval under section 303(c) of the CWA. If FDEP does not adopt State numeric criteria, the Department retains its current authority to implement federally-promulgated criteria through the State's narrative or "free from" criteria. FDEP's General Counsel has confirmed, in a 2005 letter to EPA (FDEP, January 12, 2005. “Petition to Withdraw Florida’s NPDES Authority of March 19, 2004 Response to EPA Letter of December 8, 2004.”), that the State’s water quality criteria regulations for surface waters, set out at Rule 62-302.500, F.A.C., provide authority for the Department to address and implement EPA promulgated criteria in CWA programs.

Comment IDs: 1356-1.001.007, 1359-1.001.051, 1431-1.001.003, and 1473-1.001.013 Response: EPA points out that the Agency is promulgating numeric nutrient criteria to address the Agency’s January 14, 2009 determination that new or revised water quality standards for nutrients are necessary for the State of Florida to meet the CWA requirement to have criteria that protect applicable designated uses. As discussed in EPA's determination letter, Florida’s reliance on a case-by-case translation of its narrative nutrient criterion into numeric values was insufficient to ensure protection of applicable designated uses. The existence of numeric nutrient criteria, as being promulgated by EPA, will facilitate Florida’s efforts to identify all nutrient-impaired waters. Numeric nutrient criteria will also facilitate Florida’s efforts to establish TMDLs and appropriate WQBELs in NPDES permits as necessary to adequately protect applicable designated uses. SSAC would only become the effective criteria upon determination of the Regional Administrator, consistent with EPA’s implementing regulations at 40 CFR 131.11. The numeric nutrient criteria finalized in this rule are the effective criteria for purposes of the CWA until alternative criteria are determined by EPA.

Comment ID: 1464-1.001.015

11/19/2010 02:48 PM EST 2-4557Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Response: The Agency has deleted proposed regulatory provisions at 40 CFR 131.43(d)(2)(i)-(iii) on mixing zones, design flow, and listing impaired waters. EPA notes that the final criteria in this rule are subject to Florida’s general rules of applicability in the same way and to the same extent as are other State-adopted and/or federally-promulgated criteria for Florida waters. (See 40 CFR 131.43(d)(2)). States have discretion to adopt policies generally affecting the application and implementation of WQS. (See 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 final rule to enumerate each of them, nor is it necessary to restate any otherwise applicable requirements. Please refer to the final preamble of this rule, in particular section III.E Applicability of Criteria When Final, for further information.

Comment ID: 1474-1.001.017 Response: Response: EPA received a variety of comments arguing that no case and effect relationship between nutrients and biological responses had been established and, therefore, that criteria for nutrients will not protect designated uses nor will the reduction of nutrients result in predictable environmental improvements. EPA considered these and other comments. There is a well established, sizeable body of scientific knowledge including both experimental and observational studies, including in Florida, that has unequivocally established a cause and effect relationship between nutrients and biological responses in fresh water lotic ecosystems, including an effect on the balance of natural aquatic flora and fauna (e.g., Elwood et al.1981, Bothwell 1985, Peterson et al. 1985, Moss et al. 1989, Dodds and Gudder 1992, Rosemond et al. 1993, Bowling and Baker 1996, Bourassa and Cattaneo 1998, Biggs 2000, Francoeur 2001, Rosemond et al. 2001, Rosemond et al. 2002, Notestein et al. 2003, Slavik et al. 2004, Gaiser et al. 2005, Cross et al. 2006, Mulholland and Webster 2010 and see final rule and final rule TSD). EPA has concluded from this body of scientific knowledge that a cause and effect relationship between nutrient enrichment and detrimental biological responses exists and that nutrient reduction will result in environmental improvement. EPA received related but distinct comments that stressor-response relationships were insufficient to derive nutrient criteria in Florida. EPA considered a range of stressor-response analyses for deriving nutrient criteria in Florida and concluded that there was a lack of the necessary combination of data regarding potentially confounding factors that influence the empirically estimated relationship between nutrients and response variables to support the use of the stressor-response methodology in this context. Therefore, for the final rule, EPA utilized the reference condition approach to derive numeric criteria for Florida streams as described in previously published and peer-reviewed national nutrient criteria guidance. The reference condition approach relies on identifying a least-disturbed set of reference sites reflecting "relatively undisturbed" conditions reflecting natural integrity (Davies 1997). This approach, recommended and detailed in EPA guidance (e.g., U.S. EPA 2000), derives criteria from the distribution of values in a reference population, defined as "relatively undisturbed stream segments that can serve as examples of the natural biological integrity of a region" (U.S. EPA 2000, p. 94). The reference approach, therefore, uses sites that provide the appropriate benchmark against which to determine the nutrient concentrations present when the designated uses of a waterbody are being met. Setting criteria based on conditions observed in these reference sites reflects both the stated goal of the CWA and EPA's National Nutrient Strategy that calls for states to take precautionary and preventative steps in managing nutrient pollution to maintain the chemical, physical and biological integrity of the Nation's waters before adverse biological and/or ecological effects are observed (Grubbs 2001, Grumbles 2007).

Comment ID: 1483-1.001.004

11/19/2010 02:48 PM EST 2-4558Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Response: EPA appreciates the commenter’s recommendation, however, EPA disagrees that the Agency should incorporate Florida’s Impaired Waters Rule (IWR) as a mechanism to allow a form of adaptive management in this action. The current IWR procedures reflect methods to assess waters based on the State’s narrative nutrient water quality criterion, not methods for adaptive management of waterbodies. Although the commenter expresses concern about the costs associated with developing SSAC, the development of those SSAC should cost roughly the same as what it would cost to develop the appropriate limits for a given waterbody under the narrative nutrient criteria, including the process set out in the IWR. The Federal water quality standards being promulgated by EPA provide numeric criteria for water quality assessment and will need to be accounted for in FDEP’s assessment and impairment listing protocols. Future iterations of the IWR will need to be consistent with the level of protection provided by this rule. Although the commenter expresses concern about the costs associated with developing SSAC, the development of those SSAC should cost roughly the same as what it would cost to develop the appropriate limits for a given waterbody under the narrative nutrient criteria, such as the assessment process set out in the IWR.

Comment IDs: 1769-1.001.021, 1350-1.001.009, 1359-1.001.057, 1770-1.001.045, 1771-1.001.055, 1772-1.001.049, 1773­ 1.001.050 Response: EPA clarifies that in situations where EPA-approved numeric nutrient criteria, effective for 303(c) Clean Water Act purposes, are already in place, EPA does not intend for its federally-promulgated numeric nutrient criteria to supersede those existing, EPA-approved criteria.

Comment IDs: 1465-1.001.002, 1477-1.001.012, 1715-3.001.072, 1788-1.001.003, 1805-3.001.004 Response: EPA disagrees that the Agency should include in its final rule a requirement for biological assessment in order to confirm water quality impairment. According to this final rule, when an applicable causal criterion of total nitrogen (TN) or total phosphorus (TP) is exceeded, the affected water segment is considered impaired and should be listed consistent with Clean Water Act (CWA) section 303(d). Section 303(d)(1)(A) of the CWA requires that states identify waters for which effluent limits required by sections 303(b)(1)(A) and 303(b)(1)(B) are not stringent enough to implement any water quality standard applicable to such waters. For numeric nutrient criteria for TN or TP applicable to Florida’s waters, CWA section 303(d)(1)(A) requires the State to identify any waters not meeting those criteria. Relying heavily or solely on nutrient response parameters (e.g., chl-a) or biological information to determine nitrogen (N) and phosphorus (P) impairment is not considered a proactive approach to protecting designated uses. There is overwhelming evidence linking N and P loading to algal growth. Waiting until there is a response from N and P loading to trigger pollution controls is not protective. Additionally, some waters may not exhibit a local response to N and P loading due to site-specific characteristics (e.g., turbidity limits light availability and therefore primary production) or the natural lag-time between N and P loading and algal growth. Further, these waters may be discharging high concentrations of N and P to downstream waters that may exhibit a response. Therefore, when the water quality standards include N and P criteria, the Agency believes that impairment listing should be based on an independent assessment of each applicable parameter, including N, P, and any response parameter exceedances. This approach can best protect instream and downstream waters and their designated uses.

11/19/2010 02:48 PM EST 2-4559Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

Comment ID: 1356-1.001.007 Response: As part of FDEP’s 2009 draft nutrient criteria revisions, FDEP anticipated adopting many nitrogen and phosphorus TMDLs as SSAC. Under EPA’s rule, the state could propose that EPA establish TMDL targets as SSAC as part of its triennial review process for minimal costs. EPA expects that costs of SSAC not associated with TMDLs should cost roughly the same as what it would cost to develop the appropriate limits for a given waterbody under the narrative nutrient criteria. Thus, EPA assumed that incremental costs associated with SSAC, if any, would be minimal. Please refer to the preamble of this final rule, specifically section VI. Economic Analysis, and EPA's “Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida,” located in the docket (docket ID: EPA-HQ-OW-2009-0956) for this rulemaking, for cost estimates associated with the numeric nutrient criteria finalized in this rule and the assumptions upon which those estimates are based. 

# V.D - COMPLIANCE SCHEDULES Comment ID 0655.001.002
Author Name: Aschauer F. Organization: Clay County Utility Authority Indeed, because we are early in the comment period and because the rule was formally promulgated in the federal register late in January, we may even amend the comments we make today, so we reserve the right to do so. What I'd like to talk to you about first is a compliance schedule. 

# Comment ID 0655.001.004
Author Name: Aschauer F. Organization: Clay County Utility Authority We'd also ask that you expressly within the rule allow the NPDES permit writers to build in compliance schedules for regulated dischargers. Right now there is a cursory -- or there is language in the preamble that discusses a compliance schedule. I think when you compare it to say something you all did with the Beach Act, it's cursory in nature. I think that because EPA, in this instance would be promulgating the standard, it would be appropriate for the EPA to build into the rule a compliance schedule. So those are my comments. Again, Mr. David Bolam will follow me. We will be following up with written comments, and we do thank you for coming and offering us the opportunity to speak today. 

# Comment ID 1350-1.001.024
Author Name: Schwartz J. Organization: American Forest & Paper Association

11/19/2010 02:48 PM EST 2-4560Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms

D. Compliance Schedules As EPA points out, compliance schedules also offer some implementation flexibility. 75 Fed. Reg. at 4218. Florida already has regulations that authorize compliance schedules[17] and EPA is not proposing any compliance schedule provisions. We appreciate EPA's acknowledgment of the availability of compliance schedules but note that they do not change the underlying criteria, they just provide additional time to achieve the criteria.

[17] FAC 62-620.620(6) 

# Comment ID 1359-1.001.017
Author Name: Andes F. Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition F. Compliance Schedules As EPA points out, compliance schedules also offer some implementation flexibility. 75 Fed. Reg. at 4218. Florida already has regulations that authorize compliance schedules. FAC 62-620.620(6). Florida's regulation applies only to industrial and domestic wastewater facilities. Additional types of dischargers may need a compliance schedule as well, which would require Florida to amend its regulations. Again, this will take time and EPA should delay the effective date or the compliance date for any federal criteria until the State has implementation measures in place. 

# Comment ID 1464-1.001.019
Author Name: Ettinger A. Organization: Mississippi River Collaborative et al. D. Compliance Schedules We agree with EPA's characterization of Florida's ability to use compliance schedules, as bounded by EPA regulations and the restrictions set out in the a recent EPA memo concerning compliance schedules. Memorandum from James A. Hanlon to Alexis Strauss, Reg. 9, Compliance Schedules for Water Quality Based Permits in NPDES Permits, May 10, 2007 ("Hanlon memo"). We believe that, where necessary, compliance schedules for NPDES permitted sources generally offer the very best outcome for the environment, when taking into consideration technical and funding issues faced by the sources in achieving water quality standards. 

# Comment ID 1474-1.001.021
Author Name: Herz W.

11/19/2010 02:48 PM EST 2-4561Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Organization: The Fertilizer Institute F. Compliance Schedules. As EPA points out, compliance schedules also offer some implementation flexibility. 75 Fed. Reg. at 4218. Florida already has regulations that authorize compliance schedules. FAC 62- 620.620(6). Florida's regulation applies only to industrial and domestic wastewater facilities. Additional types of dischargers may need a compliance schedule as well, which would require Florida to amend its regulations. Again, this will take time and EPA should delay the effective date or the compliance date for any federal criteria until the State has implementation measures in place. 

# Comment ID 1530.001.025
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority Compliance schedules are to be used in cases where the standard is ultimately achievable, but cannot be met immediately. Compliance schedules provide time for the discharger to establish and implement a plan for achieving the effluent limits that are based on the WQS. 

# Comment ID 1530.001.043
Author Name: Aschauer Jr. F. Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority IV. Section V.D. - Compliance Schedules EPA provides for compliance schedules as one tool for implementing the new numeric criteria. Specifically, EPA states: A compliance schedule, or schedule of compliance, refers to "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. In an NPDES permit, WQBELs are effluent limits based on applicable WQS for a given pollutant in a specific receiving water (See NPDES Permit Writers Manual, EPA-833-B-96-003, December, 1996). In addition, EPA regulations provide that schedules of compliance are to require compliance "as soon as possible." Florida has adopted a regulation authorizing compliance schedules, and that regulation is not affected by this proposed rule (Rule 62-620.620(6), F.A.C.). The regulation provides, in part, for schedules providing for compliance "as soon as sound engineering practices allow, but not later than any applicable statutes or rule deadline." The complete text of the Florida rules concerning compliance schedules is available at https://www.flrules.org/gateway/RuleNo.asp?ID=62620.620 . Florida is, therefore, authorized to grant compliance schedules under its rule for WQBELs based on federally promulgated criteria.

11/19/2010 02:48 PM EST 2-4562Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms EPA does not explain how the compliance schedule is to fit with the other tools or approaches described in the preamble, Further, given this is a WQS regulation, citing exclusively the NPDES regulations is inappropriate and out of context. The definition cited only applies to NPDES permits and the "as soon as possible" clause is also from the NPDES regulations - 40 CFR 122.47. EPA should cite to the statutes, specifically CWA section 502 ­ (17) The term "schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard. EPA needs to explain in detail how compliance schedules would be used and how they would be implemented given the proposed use of "Restoration Water Quality Standards." 

# Comment ID 1616-1.001.005
Author Name: Bell N. Organization: Northwest Environmental Advocates and on behalf of Clean Water Network of Florida C. Compliance Schedules We agree with EPA's characterization of Florida's ability to use compliance schedules, as bounded by EPA regulations and the restrictions set out in the a recent EPA memo concerning compliance schedules. Memorandum from James A. Hanlon to Alexis Strauss, Reg. 9, Compliance Schedules for Water Quality Based Permits in NPDES Permits, May 10, 2007 ("Hanlon memo"). We believe that compliance schedules for NPDES permitted sources offer the very best outcome for the environment, when taking into consideration technical and funding issues faced by the sources in achieving water quality standards. We also understand that the certainty that compliance schedules provide for public waters is the very reason that some NPDES sources are reluctant to choose them as the regulatory mechanism by which they are bound. As discussed elsewhere in these comments, for these two reasons - the assurance of timely progress and the concerns of point sources - we believe that EPA should develop a Florida nutrient-specific variance process for Florida, in this federal promulgation, to be as close to the compliance schedule as possible. In fact, a variance for nutrient discharges into Florida waters should meet all the restrictions of a compliance schedule. The result will be assurances of reasonable and significant progress towards meeting water quality standards, over the time frame created by necessity, but without the date certain and effluent quality certain outcome of compliance schedules. EPA should build into this special Florida nutrient various process the ability to revisit the progress that is being made to ensure it functions with the same force of law as a compliance schedule. It would be our hope and we believe EPA's expectation that towards the end of the time frame, a source would have enough knowledge about the remaining steps needed to come into compliance that it could choose a compliance schedule rather than renewing its variances 

# Comment ID 1647-1.001.030
Author Name: Kates K. Organization: Florida Fruit and Vegetable Association

11/19/2010 02:48 PM EST 2-4563Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms The FDEP has ruled that a reasonable schedule to comply may be established to meet standards; however, the applicant must show in advance its ability to comply by the end of the proposed schedule. If the standards are technically impossible or infeasible to meet, the proposed EPA standards may result in a finding that reasonable assurance of compliance with standards may not have been provided. With the lack of a relief mechanism, the proposed regulation essentially becomes an end of pipe standard. 

# Comment ID 1797-1.001.013
Author Name: Braswell S. Organization: Florida Farm Bureau d. Compliance Schedules Under Florida rule, the FDEP permits a reasonable schedule to comply with standards.[25] However, the applicant must show in advance its ability to comply by the end of the proposed schedule.[26] If the standards are technically impossible to meet, the EPA's proposed numeric nutrient criteria may result in a finding that reasonable assurance of compliance with standards may not have been provided. Therefore, as the EPA's proposed rule is currently drafted, compliance schedules would be an inadequate alternative regulatory approach.

[25] Fla. Admin. Code r. 62-620.620(6) (2008) [26] Id. 

# Comment ID 1810-1.001.019
Author Name: Young L. Organization: Clean Water Network of Florida C. Compliance Schedules We agree with EPA's characterization of Florida's ability to use compliance schedules, as bounded by EPA regulations and the restrictions set out in the a recent EPA memo concerning compliance schedules. Memorandum from James A. Hanlon to Alexis Strauss, Reg. 9, Compliance Schedules for Water Quality Based Permits in NPDES Permits, May 10, 2007 ("Hanlon memo"). We believe that compliance schedules for NPDES permitted sources offer the very best outcome for the environment, when taking into consideration technical and funding issues faced by the sources in achieving water quality standards. We also understand that the certainty that compliance schedules provide for public waters is the very reason that some NPDES sources are reluctant to choose them as the regulatory mechanism by which they are bound. As discussed elsewhere in these comments, for these two reasons - the assurance of timely progress and the concerns of point sources - we believe that EPA should develop a Florida nutrient-specific variance process for Florida, in this federal promulgation, to be as close to the compliance schedule as possible. In fact, a variance for nutrient discharges into Florida waters should meet all the restrictions of a compliance schedule. The result

11/19/2010 02:48 PM EST 2-4564Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms will be assurances of reasonable and significant progress towards meeting water quality standards, over the time frame created by necessity, but without the date certain and effluent quality certain outcome of compliance schedules. EPA should build into this special Florida nutrient various process the ability to revisit the progress that is being made to ensure it functions with the same force of law as a compliance schedule. It would be our hope and we believe EPA's expectation that towards the end of the time frame, a source would have enough knowledge about the remaining steps needed to come into compliance that it could choose a compliance schedule rather than renewing its variances. 

# Response Comment IDs: 0655.001.002, 0655.001.004 Response: EPA disagrees with the commenter’s view that EPA should expressly within the rule allow NPDES permit writers to build in compliance schedules (i.e., putting a compliance schedule authorizing provision into the rule) or that EPA should build an NPDES compliance schedule into the rule. Florida’s regulations already include an authorizing provision that allows NPDES permit writers to issue compliance schedules in permits, where appropriate. This authorization extends to federally-promulgated criteria. Therefore, Florida may choose to issue permit compliance schedules for nutrients, at its discretion. There is no need for EPA to provide an additional compliance schedule authorizing provision in this water quality standards promulgation for Florida. In addition, compliance schedules, themselves, are tools that are employed in the permitting context on a discharger by discharger basis, requiring compliance with effluent limits “as soon as possible.” 40 C.F.R. 122.47(a). It would be inappropriate, therefore, for this water quality standards rule to provide a blanket permit compliance schedule. See the preamble to the rule, in particular section V.D Compliance Schedules for more information on Florida’s compliance schedule authorizing provision.

Comment IDs: 1350-1.001.024, 1359-1.001.017, 1474-1.001.021Response: Florida is authorized to grant permit compliance schedules for water quality based effluent limits based on federallypromulgated criteria. See the preamble to the rule, in particular section V.D. Compliance Schedules. EPA disagrees that Florida’s regulation at 62-620.620(6), F.A.C. authorizing compliance schedules applies only to industrial and domestic wastewater facilities. Part 62-620, F.A.C. sets out permit procedures for wastewater facilities or activities which discharge wastes into waters of the State or which will reasonably be expected to be a source of water pollution. 62-620.100(1). Rule 62-620.620(6), F.A.C. applies, therefore, to all such discharge activities, not to just industrial and domestic wastewater facilities. In addition, Part 62-4. F.A.C., which sets out procedures on how to obtain a permit from the State of Florida Department of Environmental Protection (FDEP), provides that permits may include a reasonable time for compliance with new FDEP rules, including new or revised water quality standards. Rule 62-4.160(10) does not limit the type of permits which may include such compliance schedules. Regarding the request for a delayed effective date pertaining to the numeric nutrient criteria for Florida’s lakes and flowing waters finalized in this rule, please refer to the preamble to the final rule, section III.E Applicability of Criteria When Final.

Comment IDs: 1464-1.001.019, 1616-1.001.005, 1810-1.001.009

11/19/2010 02:48 PM EST 2-4565Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms Response: EPA appreciates the commenters’ perspective on the use of permit compliance schedules. For a more comprehensive picture of the tools available to Florida, see the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms.

Comment ID 1530.001.025 Response: EPA agrees with the commenter that compliance schedules are tools that can help achieve water quality standards. See the preamble to the final rule, in particular section V.D. Compliance Schedules.

Comment ID: 1530.001.043 Response: EPA agrees with the commenter that Florida is authorized to grant compliance schedules under its rule for WQBELs based on federally-promulgated criteria. See the preamble to the final rule, in particular section V.D. Compliance Schedules. EPA agrees with the commenter that EPA does not explain how compliance schedules are to fit with the other tools described in the preamble to the proposed rule, section V. Alternative Regulatory Approaches and Implementation Mechanisms. EPA appreciates the commenter’s suggestion that EPA reference Clean Water Act section 502(17), in addition to the NPDES regulations regarding compliance schedules. Compliance schedules are a tool used primarily in the permitting context to implement water quality standards and EPA anticipates compliance schedules will be used by the State of Florida in implementing the federally-promulgated criteria. The definition of compliance schedule in the permitting regulations, at 40 CFR 122.2, is based on the definition set out at Clean Water Act section 502(17). Therefore, it is helpful, but not necessary that EPA add reference to CWA section 502(17) in the preamble to the final rule because it is incorporated into the regulatory definition. EPA appreciates the commenters suggestion that EPA explain how compliance schedules would be implemented given the proposed use of “Restoration Water Quality Standards,” however EPA is not finalizing the restoration water quality standards tool that was proposed. Therefore, no further explanation is necessary. Please refer to section V.E of the preamble of the final rule for a discussion of why EPA is not finalizing restoration water quality standards.

Comment IDs: 1616-1.001.005, 1810-1.001.019 Response: EPA disagrees that EPA should develop a Florida nutrient-specific variance process for Florida. EPA is notpromulgating a designated use for Florida in this regulation, and therefore does not have a basis to establish a federal nutrientspecific variance procedure to replace Florida’s existing, state variance procedure. For a more comprehensive description of the implementation tools available to Florida, see the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms.

Comment IDs: 1647-1.001.030, 1797-1.001.013

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Response: EPA disagrees with the commenter that there is a lack of relief mechanism where the standards are technically impossible or infeasible to meet. Commenters state that compliance schedules will not be available in such situations because, pursuant to state permitting rules, the applicant must show in advance its ability to comply with water quality standards by the end of the proposed schedule, and therefore compliance schedules would be an inadequate alternative regulatory approach. In cases where there is less certainty about the timing for compliance or uncertainty regarding whether the waterbody can attain its currently designated use, a variance is likely to be a more appropriate tool than a compliance schedule. For a more comprehensive picture of the tools available to Florida, see the preamble to the final rule, in particular section V. Alternative Regulatory Approaches and Implementation Mechanisms.

11/19/2010 02:48 PM EST 2-4567