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 document 
Chapter 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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Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 

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Chapter 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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Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 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 "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. 

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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). 

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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 

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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 

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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 

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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 

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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 

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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 Approaches 

The 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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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. 

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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. 

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[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, 

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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 

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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. In 

this 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, 

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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 

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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 

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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, 

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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. In 

this 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 

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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 

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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 

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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 

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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. 

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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 

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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 

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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 

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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 

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Chapter 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. 

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Organization: Florida Association of Counties 

Now 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 

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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 

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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. 

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Chapter 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. 

11/19/2010 02:48 PM EST 2-4499
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 

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Chapter 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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Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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. 

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Chapter 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 

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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 

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Chapter 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, 

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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. 

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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. 

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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. 

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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 must 

be 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. 

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Chapter 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 

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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 

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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 

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Chapter 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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Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 protection 

of 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 

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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 Coalition 

Sixth, 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 

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Chapter 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 

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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. 

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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. 

11/19/2010 02:48 PM EST 2-4519
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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. 

11/19/2010 02:48 PM EST 2-4520
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 

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Chapter 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 2-4522
 
Chapter 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 2-4523
 
Chapter 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 

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Chapter 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 2-4525
 
Chapter 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. 

11/19/2010 02:48 PM EST 2-4526
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 2-4527
 
Chapter 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 2-4528
 
Chapter 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 2-4529
 
Chapter 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 2-4530
 
Chapter 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. 

11/19/2010 02:48 PM EST 2-4531
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 2-4532
 
Chapter 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 2-4533
 
Chapter 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 2-4534
 
Chapter 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 2-4535
 
Chapter 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. 

11/19/2010 02:48 PM EST 2-4536
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 2-4537
 
Chapter 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 2-4538
 
Chapter 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 2-4539
 
Chapter 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. 

11/19/2010 02:48 PM EST 2-4540
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 2-4541
 
Chapter 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 

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Chapter 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 

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Chapter 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 upon 

sound 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 2-4544
 
Chapter 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 

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Chapter 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 2-4546
 
Chapter 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 2-4547
 
Chapter 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. 

11/19/2010 02:48 PM EST 2-4548
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 2-4549
 
Chapter 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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Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 a 

scientifically 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. 

11/19/2010 02:48 PM EST 2-4551
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 

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Chapter 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

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Chapter 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 this 

rule 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, 

11/19/2010 02:48 PM EST 2-4554
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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 

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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 the 

commenter 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 

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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 

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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 

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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. 

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Chapter 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 

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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. 

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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. 

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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 

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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 

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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, 1474-1.001.021 

Response: 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 

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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 not 

promulgating 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 

11/19/2010 02:48 PM EST 2-4566
 
Chapter 2 - Comment Documents Alternative Regulatory Approaches and Implementation Mechanisms 

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