CHAPTER 2 

Issue Category: Statutory and Executive 

Orders 

Pages 4653 - 4697 

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 Statutory and Executive Order Reviews 

VII - STATUTORY AND EXECUTIVE ORDER REVIEWS 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

VII.A - EXECUTIVE ORDER 12866 (REGULATORY PLANNING AND 

REVIEW)
 

Comment ID 0660.001.004
 

Author Name: Ward G. 

Organization: 

You have pulled together Florida's data and thoughts but put out a flawed document. 

The ten executive orders are part of the process I want you to look at. We can't focus on technicalities this afternoon, 

but there are ten administrative-type processes which have not -- we have not been given a good response as to your 

initial evaluation. I would like to suggest you need to immediately return to the courts and say that you have not 

accomplished -- have not timely evaluated the amount of time necessary to do this process. 

Comment ID 1445-1.001.014 

Author Name: Lewis T. 

Organization: Florida Association of Special Districts 

In order to add some perspective on the potential, and substantial economic burden EPA's approach will impose on 

LWDD, in 1999 the U.S. Army Corps of Engineers submitted a final report of the Central and Southern Florida 

Comprehensive Review Study ("Restudy") to Congress. The Restudy required additional water flows to the Everglades 

National Park. The necessary activities LWDD would have had to undertake to provide the additional flows 

recommended in the Restudy would be considered minor compared to what LWWD would have to implement to comply 

with EPA's proposed regulations. Even so, the estimated impacts LWWD would have incurred due to the Restudy 

included: 

• Acquisition of 48 miles of new right of way for canal excavation, which would require the taking of 875 acres by 

eminent domain through property that was already fully developed 

• New highway and bridge crossing to account for the new infrastructure 

• Redirecting two major flood control canals 

• Construction of new water control structures 

11/19/2010 02:48 PM EST 2-4653
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

The total estimated cost to LWDD was $420,000,000 in addition to the cost estimate referenced in the Restudy [2]. The 

estimated tax increase to residents living within the LWDD was expected to be an additional 477%. See Attachment C, 

Lake Worth Drainage District and the Restudy. As stated earlier, the impacts due to the Restudy would have been 

minor compared to the likely impacts resulting from EPA's proposed regulation. The cost to LWDD and its residents 

would be exponentially higher. A tax increase of more than 477% is clearly not consistent with the principals set forth in 

Executive Order 12866, which requires that before issuing regulations, all costs and benefits of available regulatory 

alternatives must be assessed. Executive Order 12866 further requires that regulations be formulated "in the most costeffective manner to achieve the regulatory objective" and requires EPA to ''tailor [] regulations to impose the least 

burden on society, including individuals, businesses of different sizes, and other entities ... " EPA's proposed rule fails to 

compile with the requirements of Executive Order 12866. 

[2] The Restudy called for the construction of $7.8 billion worth of new water projects . The $420,000,000 was the 

estimated costs to LWDD in addition to the $7.8 cost estimate for the recommended water project. 

Comment ID 1563-1.001.002 

Author Name: Ward G. 

Organization: Coastal-Environmental 

To this end, please address in detail, justification of your compliance with the following statutory/EO languages and 

provisions or tell us and the public why you believe such Executive Order is not applicable: 

A. EO 12866 - Regulatory Planning and Review - You correctly determine that this action is a "significant regulatory 

action". Then falsely conclude that because Florida has an effective nutrient Water Quality Criteria that whatever you 

are proposing are not directly applicable to regulated entities (or other sources of pollution)! A complete reanalysis is 

required. 

Response 

Comment ID: 0660.001.004 

Response: EPA disagrees that the Agency has put out a flawed document. Under the Clean Water Act and EPA’s implementing 

regulations, numeric nutrient standards must protect the designated use of a waterbody and must be based on sound scientific 

rationale. In the case of Florida, EPA and FDEP scientists completed a substantial body of scientific work. EPA believes the 

criteria the Agency is promulgating in this final rule clearly meet the regulatory standards of protection and that they are based on a 

sound scientific rationale. EPA also disagrees that the Agency has not had adequate time to evaluate the final criteria promulgated 

in this rule. EPA believes it has worked within a sufficient timeframe to thoroughly evaluate and analyze available data and 

information used to inform the derivation of scientifically defensible numeric nutrient criteria for Florida’s lakes and flowing 

waters. 

11/19/2010 02:48 PM EST 2-4654
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID: 1445-1.001.014 

Response: EPA disagrees that the Agency has failed to comply with the requirements of Executive Order 12866. Under Executive 

Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and 

therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order (EO). The 

Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the 

economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, 

competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) Create a 

serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary 

impact of entitlements, grants, user fees, obligations of recipients thereof, or; (4) Raise novel legal or policy issues arising out of 

legal mandates, the President’s priorities, or the principles set forth in the EO. Pursuant to the terms of EO 12866, it was 

determined that this rule is a “significant regulatory action.” As such, EPA submitted this action to OMB for review under EO 

12866 and any changes made in response to OMB recommendations were documented in the docket associated with this action. As 

stated in the preamble for this rule (see section VII.A), this rule does not establish any requirements directly applicable to regulated 

entities or other sources of nutrient pollution. Moreover, existing narrative water quality criteria in Florida State law already require 

that nutrients not be present in waters in concentrations that cause an imbalance in natural populations of flora and fauna in lakes 

and flowing waters in Florida. 

In response to cost estimates pertaining to EPA’s numeric nutrient criteria, please refer to “Economic Analysis of Final Water 

Quality Standards for Nutrients for Lakes and Flowing Waters in Florida” located in the docket associated with this rulemaking 

(EPA-HQ-OW-2009-0596). 

Comment ID: 1563-1.001.002 

EPA disagrees that a complete reanalysis is required. As stated in the preamble for this rule (see section VII.A and VII.C), this rule 

does not establish any requirements directly applicable to regulated entities or other sources of nutrient pollution. Moreover, 

existing narrative water quality criteria in Florida State law already require that nutrients not be present in waters in concentrations 

that cause an imbalance in natural populations of flora and fauna in lakes and flowing waters in Florida. EPA used this objective in 

setting its numeric nutrient criteria so this rule. Under the Clean Water Act (CWA) water quality standards (WQS) program, states 

must adopt WQS for their waters and must submit those WQS to EPA for approval; if the Agency disapproves a state standard and 

the state does not adopt appropriate revisions to address EPA’s disapproval, EPA must promulgate standards consistent with the 

statutory requirements. EPA also has the authority to promulgate WQS in any case where the Administrator determines that a new 

or revised standard is necessary to meet the requirements of the Act. State standards (or EPA-promulgated standards) are 

implemented through various water quality control programs including the National Pollutant Discharge Elimination System 

(NPDES) program, which limits discharges to navigable waters except in compliance with an NPDES permit. The CWA requires 

that all NPDES permits include any limits on discharges that are necessary to meet applicable WQS. Thus, under the Clean Water 

Act, EPA’s promulgation of water quality standards establishes standards that the State implements through the NPDES permit 

process. The State has discretion in developing discharge limits, as needed to meet the standards. This final rule does not itself 

establish any requirements that are applicable to regulated entities. As a result of this action, the State of Florida will need to ensure 

11/19/2010 02:48 PM EST 2-4655
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

that permits it issues include any limitations on discharges necessary to comply with the standards established in the final rule. In 

doing so, the State will have a number of choices associated with permit writing. While Florida’s implementation of the rule may 

ultimately result in new or revised permit conditions for some dischargers, EPA’s action, by itself, does not impose any of these 

requirements on regulated entities; that is, these requirements are not self-implementing. 

VII.B - PAPERWORK REDUCTION ACT 

Comment ID 1563-1.001.003 

Author Name: Ward G. 

Organization: Coastal-Environmental 

B. Paperwork Reduction Act. - You wrongly conclude that without information collection specifications that such does 

not exist! Converting to numeric nutrient standards does require massive information collection requirements and the 

Act provisions are implemented. 

Response 

Comment ID: 1563-1.001.003 

Response: In response to the comment, EPA disagrees that the Agency has made a wrong conclusion regarding the Paperwork 

Reduction Act. EPA’s action does not impose an information collection burden under the provisions of the Paperwork Reduction 

Act (44 U.S.C. 3501 et seq.). EPA reminds the commenter that burden means the total time, effort or financial resources expended 

by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. Please refer to section VII.B 

Paperwork Reduction Act in the preamble of this final rule for further discussion. 

VII.C - REGULATORY FLEXIBILITY ACT 

Comment ID 0727.001.009 

Author Name: Kelter M. 

Organization: Green Cove Springs 

Four, part 7-B of the rule states the U.S. EPA rule is not subject to unfunded mandates or format. I know how much it 

costs. It's more than what you say. If the Federal Government had to do unfunded mandates program, I am certain that 

you will write the rules differently. I'm almost out of time. Fifth, you're forgetting about power. Moving nutrients is power 

intensive. We have got to build power plants in this state to make that last. 

Comment ID 0884.001.003 

11/19/2010 02:48 PM EST 2-4656
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Author Name: Wertephy A. 

Organization: Palm Beach County MS4 Program 

6. On Page 4222 of the Proposed Rule (Regulatory Flexibility Act), U.S . EPA certifies that the proposed rule will not 

have a significant economic impact on a substantial number of small entities. It makes this claim based on the 

questionable logic that the criteria being established are not applicable to small entities. Perhaps the reason that this 

logic is attempted is because most small entities have not been identified nor have their costs for implementation been 

identified . Small entities affected by this include Special Districts, Municipalities with NPDES permits (populations of 

less than 50,000) including 30 municipalities in Palm Beach County, agricultural business, and non-point discharges in 

urban systems (Homeowners Associations, commercial sites, industrial sites, golf courses, and community 

development districts, etc.). We feel that U.S . EPA is making a grossly inaccurate assumption upon which it is basing 

its certification. We are concerned this is being done to downplay the huge financial impact this criteria will create . 

7. On Page 4222, U.S. EPA analysis of the cost that meets the proposed standards is estimated to be $140 million 

dollars per year. This estimate is extremely low and as such is misleading to the public, private sector, and 

governmental entities that will be required to budget the funds for restoration efforts to meet the criteria. U.S . EPA's 

cost estimate is based on assumptions that potential controls will reduce total phosphorus and total nitrogen but not to 

the levels required by the proposed criteria. 

Comment ID 1010.001.004 

Author Name: Nelson B. 

Organization: City of Bonita Springs 

Procedural Objections to Proposed Rules 

1. Regulatory Flexibility Act 

Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), 5 USCA 601, requires federal agencies to prepare a 

regulatory flexibility analysis and assessment of the economic impact of a proposed rule on small business entities 

(including cities such as Bonita Springs and the small governmental jurisdictions such as special districts with a 

population of less than 50,000) . The EPA instead certified that the proposed rule will not have a significant economic 

impact on a substantial number of small entities . It did not provide factual basis for that certification, but asserted that 

the rule is not regulating the small entities, but the State of Florida, who then is regulating the small entities. The City of 

Bonita Springs objects to EPA's position it is not regulating small entities . The proposed rule's impact can be 

distinguished from National Women, Infants, and Children Grocers Ass'n v. Food and Nutrition Service, 416 F. Supp . 

2d 92 (D.D.C. 2006) . In that case it was an interim rule directed toward the states and regulated state agencies' actions 

. The proposed EPA rule may be directed toward the State of Florida, but it directly impacts hundreds of small 

municipalities and governmental entities, as well as every Florida citizen with a utility bill or living in a homeowner's 

association with storm water responsibilities. Further, the State of Florida was carrying out the objectives of the Clean 

Water Act, and but for the Consent Order mandating this proposed rulemaking, the delegation from the early 1990's of 

NPDES was operating efficiently and effectively . 

While the City of Bonita Springs does not necessarily object to having a numeric nutrient criteria, it does object that EPA 

11/19/2010 02:48 PM EST 2-4657
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

did not prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of 

the proposed rule on small entities, which must be published in the Federal Register at the time of the publication of 

general notice of the proposed rulemaking. Instead, the EPA relied on the September 2009 RFA / SBREFA Screening 

Analysis, which concluded that throughout the state of Florida there were about 46 small governments potentially 

affected by the rule. In the City of Bonita Springs alone, there are twelve special purpose governments, known as 

districts, impacted by the rule because of stormwater or wastewater responsibilities:

 San Carlos Estates Drainage District Bay Creek CDD Bayside Improvement CDD Beach Road Estates CDD Beach 

Road Golf Estates CDD Bonita Village CDD East Bonita Beach Road CDD Mediterra North CDD Parklands Lee CDD 

Parklands West CDD Vasari CDD Villagewalk of Bonita Springs CDD 

There will be a significant economic impact on a substantial number of small entities . Bonita Springs will be 

substantially affected by the rulemaking with both point sources and nonpoint sources. As the Franchisor of Bonita 

Springs Utilities, it is anticipated that the cost of bringing wastewater treatment plants throughout the State of Florida 

into the reduced nitrogen and phosphorus levels as proposed by the EPA could cost as high as $24 .4 Billion, which 

computes to yearly rate increased per household of $673 .00 (statewide) . EPA's own estimate for capital costs for 

municipal wastewater treatment plant was approximately $300 Million, computing to approximately $8 .30 per 

household per year. The concern is that even with state of the art technology which is available in the City of Bonita 

Springs, the City is not sure technology is going to be available when rule implementation for its wastewater treatment. 

Comment ID 1098-1.001.002 

Author Name: Vance A. 

Organization: City of Bonita Springs 

Bonita Springs does not necessarily object to having numeric nutrient criteria. 

It does object that EPA did not comply with the Administrative Procedures Act. We say this because of the following: 

Regulatory Flexibility Act: 

EPA is required to prepare and make available for public comment an initial regulatory flexibility analysis describing the 

impact of the proposed rule on small entities, such as Bonita Springs with a population under 50,000. Instead it certified 

that there was no significant economic impact on a substantial number of small entities. Its screening indicated 46 small 

governments throughout Florida. The screening totally ignored special districts. Within the corporate body of Bonita 

Springs alone, there are 12 special purpose governments, known as districts, impacted by the rule because of 

stormwater or wastewater. In Florida, there are: 

576 Community Development Florida Statutes §190 

94 Drainage and Water Control Districts Florida Statutes §298 

63 Soil and Water Conservation Florida Statutes §582 

54 Subdivision Maintenance Florida Stat. §189.4041 

26 Water & Sewer Florida Statutes §153.53 

18 Water Supply 5 Wastewater Treatment Florida Statutes §381 

11/19/2010 02:48 PM EST 2-4658
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

8 Utility 

2 Water Control 

Excluding the impact to small municipalities and counties, the screening failed to account for 846 small governments 

that are charged with NPDES MS4 permitting requirements, waste water requirements, etc. 

Source: http://www.floridaspecialdistricts.org/OfficialList/index.cfm 

Comment ID 1098-3.001.004 

Author Name: Vance A. 

Organization: City of Bonita Springs 

Procedural Objections to Proposed Rules 

1. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 5 USCA 601, requires federal agencies to prepare a regulatory flexibility analysis 

and assessment of the economic impact of a proposed rule on small business entities (including cities such as Bonita 

Springs and the small governmental jurisdictions such as special districts with a population of less than 50,000). The 

EPA instead certified that the proposed rule will not have a significant economic impact on a substantial number of 

small entities. It did not provide factual basis for that certification, but asserted that the rule is not regulating the small 

entities, but the State of Florida, who then is regulating the small entities. The City of Bonita Springs objects to EPA's 

position it is not regulating small entities. The proposed rule's impact can be distinguished from National Women, 

Infants, and Children Grocers Ass'n v. Food and Nutrition Service, 416 F. Supp. 2d 92 (D.D.C. 2006). In that case it was 

an interim rule directed toward the states and regulated state agencies' actions. The proposed EPA rule may be 

directed toward the State of Florida, but it directly impacts hundreds of small municipalities and governmental entities, 

as well as every Florida citizen with a utility bill or living in a homeowner's association with storm water responsibilities. 

Further, the State of Florida was carrying out the objectives of the Clean Water Act, and but for the Consent Order 

mandating this proposed rulemaking, the delegation from the early 1990's of NPDES was operating efficiently and 

effectively. 

While the City of Bonita Springs does not necessarily object to having a numeric nutrient criteria, it does object that EPA 

did not prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of 

the proposed rule on small entities, which must be published in the Federal Register at the time of the publication of 

general notice of the proposed rulemaking. Instead, the EPA relied on the September 2009 RFA / SBREFA Screening 

Analysis, which concluded that throughout the state of Florida there were about 46 small governments potentially 

affected by the rule. In the City of Bonita Springs alone, there are twelve special purpose governments, known as 

districts, impacted by the rule because of stormwater or wastewater responsibilities: 

San Carlos Estates Drainage District 

Bay Creek CDD 

Bayside Improvement CDD 

11/19/2010 02:48 PM EST 2-4659
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Beach Road Estates CDD 

Beach Road Golf Estates CDD 

Bonita Village CDD 

East Bonita Beach Road CDD 

Mediterra North CDD 

Parklands Lee CDD 

Parklands West CDD 

Vasari CDD 

Villagewalk of Bonita Springs CDD 

There will be a significant economic impact on a substantial number of small entities. Bonita Springs will be 

substantially affected by the rulemaking with both point sources and nonpoint sources. As the Franchisor of Bonita 

Springs Utilities, it is anticipated that the cost of bringing wastewater treatment plants throughout the State of Florida 

into the reduced nitrogen and phosphorus levels as proposed by the EPA could cost as high as $24.4 Billion, which 

computes to yearly rate increased per household of $673.00 (statewide). EPA's own estimate for capital costs for 

municipal wastewater treatment plant was approximately $300 Million, computing to approximately $8.30 per household 

per year. The concern is that even with state of the art technology which is available in the City of Bonita Springs, the 

City is not sure technology is going to be available when rule implementation for its wastewater treatment. 

Comment ID 1177.001.002 

Author Name: Vance A. 

Organization: Bonita Springs City Council 

Bonita Springs does not necessarily object to having numeric nutrient criteria. What it does object to is the EPA not 

complying with the Administrative Procedures Act, and we say this because of the following. First of all, one of the 

requirements when adopting rules is to follow the Regulatory Flexibility Act, which is to prepare and make available for 

public comment, prior to the Federal Register, an initial regulatory flexibility analysis describing the impact of the 

proposed rule on small entities. 

Comment ID 1177.001.003 

Author Name: Vance A. 

Organization: Bonita Springs City Council 

Bonita Springs is a small entity. We have a population under 50,000. Instead, the EPA certified that there was no 

significant economic impact on a substantial number of small entities. The screening, which is in the regulatory docket, 

indicates 46 small governments throughout the state of Florida. The screening totally ignored special districts. Within 

the corporate body of Bonita Springs alone, there are 12 special-purpose governments, that are known as special 

districts, impacted by the rule because of storm water and wastewater. 

11/19/2010 02:48 PM EST 2-4660
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID 1331-1.001.011 

Author Name: Aldstadt S. 

Organization: City of Pensacola Public Works 

This underscores the importance of EPA adequately considering the costs to local governments and POTWs in 

complying with the criteria or permits limitations based on the criteria. Such consideration is even more vital given that 

numeric nutrient criteria could be adopted for the arid west using the same approach as that now proposed for Florida. 

The proposed rule is devoid of sufficient cost considerations. Further, EPA's claim that it need not determine the 

proposed rule's potential impacts on small businesses and small governments under the Regulatory Flexibility Act is 

without merit. (75 Fed.Reg. at p. 4222.) 

Comment ID 1359-1.001.010 

Author Name: Andes F. 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

D. EPA's Proposal Does Not Meet the Requirements of the Regulatory Flexibility Act and Unfunded Mandates Reform 

Act. 

In the Federal Register notice publishing proposed nutrient standards for Florida lakes and flowing waters, EPA asserts 

that it is not required to determine the impacts on small businesses and small governments under the Regulatory 

Flexibility Act, or to consider and adopt the least costly, most cost-effective, or least burdensome alternative under the 

Unfunded Mandates Reform Act. 75 Fed. Reg. at 4222. In support of these statements, EPA asserts that, when 

promulgated, federal water quality standards for nutrients in Florida's lakes and flowing waters, will have no regulatory 

effect on entities in the State of Florida. That position is clearly legally incorrect. 

EPA cannot pretend that any standards it may promulgate for the State of Florida will not have regulatory effect. EPA's 

proposal is not a guidance document. It is not a criteria document issued under section 304(a) of the Clean Water Act. 

Instead, EPA is standing in the shoes of the State of Florida and is proposing to promulgate water quality standards that 

will be applicable in that State. As noted in the preamble to the proposed rule: 

"EPA's proposed numeric nutrient criteria for Florida's lakes and flowing waters will be effective for CWA purposes 60 

days after publication of final criteria and 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, 

approved by EPA)." 75 Fed. Reg. at 4216 (emphasis added). 

"Pursuant to 40 C.F.R. 131.21(c), if EPA does finalize this proposed rule, the EPA promulgated WQS would be 

applicable WQS for purposes of the CWA until EPA withdraws the federallypromulgated standard. Id. (emphasis 

added). 

Thus, it is not legally correct for EPA to take the position, for the purpose of determining the applicability of the 

11/19/2010 02:48 PM EST 2-4661
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Regulatory Flexibility Act, that "[t]his proposed rule, as explained earlier, does not itself establish any requirements that 

are applicable to small entities." 75 Fed. Reg. at 4222. In fact, EPA's federally promulgated water quality standards will 

be legally applicable to small entities (as well as others) that discharge nutrients into Florida lakes and flowing waters. 

Similarly, it is not legally correct for EPA to take the position, for the purpose of determining the applicability of the 

Unfunded Mandates Reform Act, that: 

This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, 

local, or tribal governments or the private sector. The State may use these resulting water quality criteria in 

implementing its water quality control programs. This proposed rule does not regulate or affect any entity and, therefore, 

is not subject to the requirements of sections 202 and 205 of UMRA. 

Id. (emphasis added) 

If a discharge causes, has the reasonable potential to cause, or contributes to an excursion of a numeric or narrative 

water quality criteria, the permitting authority must develop permit limits as necessary to meet water quality standards. 

40 C.F.R. 122.44(d)(1). In water bodies where a waste load allocation has not been prepared by a State and approved 

by EPA under 40 C.F.R. 130.7, water quality-based effluent limits must ensure that the "level of water quality to be 

achieved by limits on point sources established under this paragraph is derived from, and complies with all applicable 

water quality standards." 40 C.F.R. 122.44(d)(1)(vii)(A). Absent a TMDL, EPA has taken the position that water quality 

based effluent limitations for discharges into impaired waters cannot exceed an applicable water quality criterion. 

On its face, EPA believes that a WQBEL allowing discharges into a waterbody already exceeding such criteria would 

not ensure that the water quality achieved by point sources was either "derived from" or "complies with" applicable 

water quality standards. EPA also believes that such a permitting approach would be fundamentally at odds with the 

water quality-based permitting requirement contained in section 301(b)(1)(C) of the CWA, since such an approach 

would allow point sources to contribute to the excursion above water quality standards in the waterbody. 

See EPA, Water Quality Guidance for the Great Lakes System -- Supplementary Information Document (1995), at 556. 

When a TMDL is developed, water quality standards continue to have regulatory effect. "Such standards serve the dual 

purposes of establishing the water quality goals for a specific water body and serving as the regulatory basis for the 

establishment of water quality-based treatment controls and strategies beyond the technology-based level of treatment 

required by sections 301(b) and 306 of the Act." 40 C.F.R. 130.3 (emphasis added); 40 C.F.R. 131.2. Thus, federal 

water quality standards are not comparable to the National Ambient Air Quality Standards (NAAQS) considered by the 

court in American Trucking Ass'n, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (rejecting a claim that the Regulatory 

Flexibility Act applied to a NAAQS rulemaking) (subsequent history omitted). The fact that EPA's proposal would allow 

Florida to develop site-specific alternative criteria does not change this analysis. Those criteria would still be federal 

standards imposed by this rulemaking on large and small entities in the State of Florida. 

Perhaps recognizing the legal vulnerability of its position that federal water quality standards do not directly apply to 

dischargers, EPA did prepare an analysis of the costs of meeting the proposed federal standards as well as a 

"RFA/SBREFA Screening Analysis for Water Quality Standards for Nutrients in Lakes and Flowing Waters in Florida." 

11/19/2010 02:48 PM EST 2-4662
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

As discussed below, EPA's estimate woefully underestimates the cost of implementation of these standards, 

inappropriately uses draft state standards as a baseline, and then inaccurately interprets Florida's watershed 

management program. 

In particular, as discussed below, EPA provides no estimates of the cost of the rule on municipal separate storm sewer 

systems in Florida, even though for the Chesapeake Bay, EPA estimates that the cost of retrofitting storm sewer 

systems to reduce nutrient loadings and meet water quality standards for the Bay will be $7.9 billion. See The Next 

Generation of Tools and Actions to Restore Water Quality in the Chesapeake Bay: A Revised Report Fulfilling Section 

202a of Executive Order 13508, at 24. EPA also provides no estimate of the costs to industrial wastewater dischargers. 

Instead EPA uses $25,000 per year per source as an illustrative cost, with no analysis to support that number. Further, 

EPA grossly underestimates the costs that municipalities must incur to upgrade to advanced nutrient removal 

technology, estimating capital costs of only $300 million when the Florida Water Environmental Association has 

estimated the cost to be between $27.4 and 50.7 billion. See Technologies to Meet Numeric Nutrient Criteria at 

Florida's Domestic Water Reclamation Facilities, Florida Water Environmental Association (Nov. 18, 2009). 

EPA's RFA/SBREFA Screening Analysis then relies on this inadequate cost estimate to conclude that EPA's proposal 

will not result in a significant impact on a substantial number of small entities. Due to the flaws in its cost estimate, EPA 

has no basis for drawing this conclusion. 

As discussed below, EPA proposed standards will impose costs of over $100 million a year. Accordingly, EPA must 

meet the requirements of the Unfunded Mandates Reform Act. Similarly, an accurate estimate of costs is likely to show 

that further analysis under the Regulatory Flexibility Act is required. 

Comment ID 1444-1.001.003 

Author Name: Earle R. 

Organization: Analysis Group 

EPA Avoids Compliance with Statutory Cost Effectiveness Criteria 

The threshold for the EPA to be required to consider cost-effectiveness in proposed rules is costs above $100 million 

per state per year.[4] For the proposed Florida program, EPA is assuming, for the purposes of complying with this 

requirement, that its regulations (and the associated costs) are incremental to the Florida proposed standards. In other 

words, while the overall cost of complying with EPA's runoff standards exceeds the $100 million threshold, the cost 

incremental to that of complying with Florida's regulations is less than $100 million. Thus EPA seems to have 

determined that it is not required to use the most cost-effective approach.[5] 

Even if EPA is not required to consider the cost-effectiveness of its approach, sound public policy suggests that it 

should do so. In normal economic times, the consideration of cost-effectiveness should be the standard course of 

action. When the economy is struggling to recover from a devastating recession, due consideration of how to lessen 

the costs of regulation is even more important. A conclusion that because EPA is not required to consider costeffectiveness, it will not, creates an unfortunate situation for a number of reasons (including the obvious one that there 

are more cost-effective approaches to achieve a result at least as good as EPA's current proposal). 

11/19/2010 02:48 PM EST 2-4663
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

[4] Federal Register, Tuesday, January 26, 2010, Part III Environmental Protection Agency, 40 SFR Part 131 Water 

Quality Standards for the State of Florida's Lakes and Flowing Waters; Proposed Rule, p. 4222. 

[5] "EPA has prepared an analysis of potential costs associated with meeting these standards. EPA's analysis used the 

criteria proposed by FDEP in July 2009 as a baseline against which to estimate the incremental costs of meeting the 

standards in this proposal. The baseline costs of meeting Florida's proposed standards are estimated to be $102 to 

$130 million per year. The incremental costs, over and above these baseline costs of meeting the standards in this 

NPRM are estimated to be $4.7 to $10.1 million per year." See Federal Register, Tuesday, January 26, 2010, p. 4222. 

Comment ID 1474-1.001.035 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

E. EPA's Proposal Does Not Meet the Requirements of the Regulatory Flexibility Act and Unfunded Mandates Reform 

Act. 

In the Federal Register notice publishing proposed nutrient standards for Florida lakes and flowing waters, EPA asserts 

that it is not required to determine the impacts on small businesses and small governments under the Regulatory 

Flexibility Act, or to consider and adopt the least costly, most cost-effective, or least burdensome alternative under the 

Unfunded Mandates Reform Act. 75 Fed. Reg. at 4222. In support of these statements, EPA asserts that, when 

promulgated, federal water quality standards for nutrients in Florida's lakes and flowing waters, will have no regulatory 

effect on entities in the State of Florida. That position is clearly legally incorrect. 

EPA has no basis for asserting that any standards it may promulgate for the State of Florida will not have regulatory 

effect. EPA's proposal is not a guidance document. It is not a criteria document issued under section 304(a) of the 

Clean Water Act. Instead, EPA is standing in the shoes of the State of Florida and is proposing to promulgate water 

quality standards that will be applicable in that State. As noted in the preamble to the proposed rule: 

"EPA's proposed numeric nutrient criteria for Florida's lakes and flowing waters will be effective for CWA purposes 60 

days after publication of final criteria and will apply in addition to any other existing CWAeffective 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, 

approved by EPA)." 75 Fed. Reg. at 4216 (emphasis added). 

"Pursuant to 40 C.F.R. 131.21(c), if EPA does finalize this proposed rule, the EPA promulgated WQS would be 

applicable WQS for purposes of the CWA until EPA withdraws the federally-promulgated standard. 

Id. (emphasis added). 

Thus, it is not legally correct for EPA to take the position, for the purpose of determining the applicability of the 

Regulatory Flexibility Act, that "[t]his proposed rule, as explained earlier, does not itself establish any requirements that 

are applicable to small entities." 75 Fed. Reg. at 4222. In fact, EPA's federally promulgated water quality standards will 

11/19/2010 02:48 PM EST 2-4664
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

be legally applicable to small entities (as well as others) that discharge nutrients into Florida lakes and flowing waters. 

Comment ID 1474-1.001.115 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

EPA's RFA/SBREFA Screening Analysis then relies on this inadequate cost estimate to conclude that EPA's proposal 

will not result in a significant impact on a substantial number of small entities. Due to the flaws in its cost estimate, EPA 

has no basis for drawing this conclusion. 

Comment ID 1475-1.001.018 

Author Name: Arrington D. 

Organization: Loxahatchee River Environmental Control District 

EPA's comments under the Regulatory Flexibility Act and Unfunded Mandates Reform Act, sections VII.C and VII.D, 

respectively, regarding the economic impact of the proposed numeric nutrient criteria are flagrantly misleading. For 

example, on page 178 EPA states "This proposed rule, as explained earlier, does not itself establish any requirements 

that are applicable to small entities." Then on page 179 EPA states "While Florida's implementation of the rule may 

ultimately result in new or revised permit conditions for some dischargers, including small entities, EPA's action, by 

itself, does not impose any of these requirements on small entities; that is these requirements are not selfimplementing. Thus, I certify that this rule will not have a significant economic impact on a substantial number of small 

entitles." [emphasis added] In the very next paragraph, EPA proceeds to explain that the estimated cost of 

implementing the proposed numeric nutrient criteria would equal approximately $140 million per year. Clearly, EPA has 

proffered the numeric nutrient criteria in an effort to force the State of Florida into action, and EPA has estimated the 

cost of that action to be significant. Yet, based on carefully parsed semantics, EPA has published that the rule ‘by itself, 

does not impose any ... requirements on small entities...." I believe this completely undermines the spirit of the Federal 

Regulatory Flexibility Act and Unfunded Mandates Reform Act, and therefore, jeopardizes EPA's efforts to lawfully 

publish their numeric nutrient criteria for the State of Florida. Please understand that our rate payers - residents and 

businesses served by our wastewater treatment facility - will have to pay for costs to unnecessarily remove nutrients 

from our reuse water prior to it being applied to their lawns and golf courses. These costs will be huge, and they will be 

an unnecessary burden on the residents and businesses of our community. 

Comment ID 1482-1.001.023 

Author Name: Hecker J. 

Organization: Conservancy of Southwest Florida 

11/19/2010 02:48 PM EST 2-4665
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

IV. Cost Assessment of Proposed Numeric Nutrient Criteria is Appropriate 

EPA's assessment of the costs of the proposed numeric nutrient criteria is more than sufficient for purposes of the 

Regulatory Flexibility Act, 5 U.S.C. §§ 601, et seq. It is useful for informational purposes, but it should be noted that the 

Clean Water Act does not require a cost assessment for the development of water quality criteria. See 33 U.S.C. §§ 

1313(c)(4)(B), 1314(a). 

Comment ID 1530.001.047 

Author Name: Aschauer Jr. F. 

Organization: Rose, Sundstrom & Bentley, LLP on behalf of the Clay County Utility Authority 

XV. THE PROPOSED RULE DOES NOT SATISFY THE DICTATES OF THE REGULATORY FLEXIBILITY ACT. 

The Regulatory Flexibility Act requires that agencies "shall prepare and make available for public comment an initial 

regulatory flexibility analysis. Such analysis shall describe the impact of the proposed rule on small entities." 5 U.S.C. § 

603. EPA flatly admits that no such analysis was performed, claiming that the Proposed Rule "will not have a significant 

economic impact on a substantial number of small entities." CCUA disagrees and maintains that the Proposed Rule will 

likely have a significant impact on a significant number of small entities. CCUA, as noted herein above in the 

Background section, is an independent special district that serves approximately 40,000 customers. Accordingly, 

pursuant to 5 U.S.C. § 601, CCUA is a "small govemmental jurisdiction," which means CCUA is entitled to the 

protections afforded by the Regulatory Flexibility Act. 

In the preamble to the Proposed Rule, at page 4222, the EPA notes that: "While Florida's implementation of the rule 

may ultimately result in new or revised permit conditions for some dischargers, including small entities, EPA's action, by 

itself, does not impose any of these requirements on small entities; that is, these requirements are not selfimplementing." Indeed, there remains a possibility that some dischargers, including CCUA, may not receive new or 

revised permit conditions as a result of the Proposed Rule. Specifically addressing CCUA, it has demonstrated in this 

Comment that it should not receive new or revised permits conditions at permit renewal, as a result of the FDEP's 

implementation of the criteria in the Proposed Rule. Furthermore, CCUA, like other utilities in Florida, would have the 

option of challenging the issuance of any permit with new or revised permit conditions, and it would be highly likely that 

CCUA would challenge any new or revised permit conditions based upon the criteria in the Proposed Rule. However, 

there is a greater likelihood that many (perhaps a super majority) of dischargers who are not as well situated as CCUA 

will have new or revised permit conditions thrust upon them at permit renewal. EPA ignores this fact, and in so doing 

ignores its responsibilities under the Regulatory Flexibility Act. 

Furthermore, for the reasons stated in Section IV, the EPA's analysis of potential costs associated with meeting the 

criteria in the Proposed Rule is disingenuous. Furthermore, as explained above in Section IV, the EPA's analysis 

significantly underestimates the potential cost of compliance. Additionally, the EPA's analysis of potential costs 

associated with meeting the criteria in the Proposed Rule does not rise to the level of analysis required to satisfy 5 

U.S.C. § 603(b). To that end, the fact that EPA conducted an analysis of potential costs associated with meeting the 

11/19/2010 02:48 PM EST 2-4666
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

criteria in the Proposed Rule is an acknowledgement by EPA that the Regulatory Flexibility Act applies. 

For the reasons stated herein, the EPA should delay finalizing the Proposed Rule and comply with the Regulatory 

Flexibility Act by issuing the analysis contemplated in 5 U.S.C. § 603(b). 

Comment ID 1563-1.001.004 

Author Name: Ward G. 

Organization: Coastal-Environmental 

C. Regulatory Flexibility Act - Obviously by the most column inches (one and one half columns) of discussion you go to 

more extremes to discount the costs of the Proposed Rules. Statements such as Footnote 114 "EPA was not able to 

estimate the costs for the municipal storm water systems because the need for incremental controls is uncertain." is 

incompetent. Florida has numerous Stormwater Utilities which routinely have Plans that make such estimates! Reestimate the $100s of millions of yearly costs! 

Comment ID 1645-1.001.011 

Author Name: Griswold R. 

Organization: Destin Water Users 

VlI. Statutory and Executive Order Reviews 

C. Regulatory Flexibility Act 

In this section, EPA states that EPA uses criteria proposed by FDEP in July 2009 as a baseline against which to 

estimate the incremental costs. Further EPA states the baseline costs are estimated to be between $102 and $130 

million dollars and that EPA incremental costs only increase this amount by $4.7 to $10.0 million per year. First of all, 

FDEP did not voluntarily propose baseline criteria. They simply reported criteria based on a methodology mandated by 

EPA when it was found that reliable "cause and effect" criteria could not be scientifically determined that could then 

form a limit to cover all water bodies. FDEP did not propose criteria, they simply reported so the statements leading up 

to the costs estimated by EPA in this proposal are false. In addition, it is impossible for the limits reported by FDEP to 

be met with the measley expenditures stated by EPA in this section. EPA simply did not understand how to perform the 

necessary engineering work needed to properly assess the fiscal impact of this proposed rule. I can only speculate they 

guessed at it. And further I can also speculate that the purpose of this estimate was to mislead the Congress of the 

United States and the citizens of Florida. 

Comment ID 1770-1.001.054 

Author Name: de la Parte, Jr. E. 

11/19/2010 02:48 PM EST 2-4667
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 

B. RFA/SBREFA Screening Analysis for Water Quality Standards for Nutrients in Lakes and Flowing Waters in Florida 

(September 2009) 

The Regulatory Flexibility Act ("RFA") of 1980, as amended by the Small Business Regulatory Enforcement Fairness 

Act ("SBREFA") of 1996 requires EPA to evaluate the potential impact of proposed rules on small entities. In this case, 

whether a local government is considered a small entity depends on whether the government operates a wastewater 

treatment plant serving a total population less than 50,000. 

The RFA/SBREFA Screening Analysis for Water Quality Standards for Nutrients in Lakes and Flowing Waters in Florida 

(September 2009) ("RFA Report") only concentrated on those entities with permitted NPDES discharges and did not 

consider the impact of the Proposed Rules on urban runoff, septic sources or agriculture. The RFA Report lists the 

estimated annual compliance costs for all entities. The annual compliance cost represents the annualized capital cost 

and annual operation and maintenance cost from the report described in the email below. For those entities classified 

as "small" entities, this cost was used to estimate the percentage of the entity's total revenue would be impacted by 

these costs. According to the report, a govermnent's revenue represents the total revenue reported for the government 

in the 2002 Census of Govermnents, updated to 2009 dollars using the Consumer Price Index. 

Plant City was identified as an entity, who would incur additional annual compliance costs as a result of the Proposed 

Rule. Additionally, Plant City was identified as a small government entity because its total population is less than 50,000 

persons. The annual compliance cost for Plant City was estimated as $810,875. The report indicates that this 

compliance cost represents 1.6% of the City's total revenue. However, this cost fails to consider the additional costs 

associated. with the additional treatment to meet the proposed criteria rather than the LOT, storm water/reuse 

treatment, septic system costs, or additional treatment necessary to meet DPVs. The actnal percentage impact on 

revenue will be much greater than 1.6% when taking into account actual standards as well as reclaimed water, 

stormwater and septic tank compliance costs. 

Comment ID 1778-1.001.017 

Author Name: Arrington D. 

Organization: Loxahatchee River District 

- EPA's comments under the Regulatory Flexibility Act and Unfunded Mandates Reform Act, sections VII.C and VII.D, 

respectively, regarding the economic impact of the proposed numeric nutrient criteria are flagrantly misleading. For 

example, on page 178 EPA states "This proposed rule, as explained earlier, does not itself establish any requirements 

that are applicable to small entities." Then on page 179 EPA states "While Florida's implementation of the rule may 

ultimately result in new or revised permit conditions for some dischargers, including small entities, EPA's action, by 

itself, does not impose any of these requirements on small entities; that is these requirements are not selfimplementing. Thus, I certify that this rule will not have a significant economic impact on a substantial number of small 

entitles." [emphasis added] In the very next paragraph, EPA proceeds to explain that the estimated cost of 

implementing the proposed numeric nutrient criteria would equal approximately $140 million per year. Clearly, EPA has 

proffered the numeric nutrient criteria in an effort to force the State of Florida into action, and EPA has estimated the 

11/19/2010 02:48 PM EST 2-4668
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

cost of that action to be significant. Yet, based on carefully parsed semantics, EPA has published that the rule ‘by itself, 

does not impose any ... requirements on small entities...." I believe this completely undermines the spirit of the Federal 

Regulatory Flexibility Act and Unfunded Mandates Reform Act, and therefore, jeopardizes EPA's efforts to lawfully 

publish their numeric nutrient criteria for the State of Florida. Please understand that our rate payers - residents and 

businesses served by our wastewater treatment facility - will have to pay for costs to unnecessarily remove nutrients 

from our reuse water prior to it being applied to their lawns and golf courses. These costs will be huge, and they will be 

an unnecessary burden on the residents and businesses of our community. 

Comment ID 1786-1.001.033 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

EPA's Proposal Does Not Meet the Requirements of the Regulatory Flexibility Act and Unfunded Mandates Reform Act 

In the proposal, EPA asserts that it is not required to determine the impacts on small businesses and small 

governments under the Regulatory Flexibility Act, or to consider and adopt the least costly, most cost-effective, or least 

burdensome alternative under the Unfunded Mandates Reform Act. EPA states that, when promulgated, federal water 

quality standards for nutrients in Florida's lakes and flowing waters, will have no regulatory effect on entities in the state 

of Florida. This may be the case for EPA's typical criteria guidance document development process, but EPA's 

proposed criteria for Florida are not guidance and will become standards in the state within sixty days of being 

published. 

Comment ID 1786-1.001.035 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

Though EPA downplayed the applicability of the Regulatory Flexibility Act and the Unfunded Mandates Reform Act to its 

actions, EPA did prepare an analysis of the costs of meeting the proposed federal standards as well as a 

"RFA/SBREFA Screening Analysis for Water Quality Standards for Nutrients in Lakes and Flowing Waters in Florida." 

As discussed below, EPA's cost estimate makes significant assumptions that result in a vast understatement of the cost 

impacts to dischargers in Florida. EPA's RFA/SBREFA Screening Analysis relies on this inadequate cost estimate to 

conclude that EPA's proposal will not result in a significant impact on a substantial number of small entities. 

Comment ID 2372-1.001.004 

Author Name: Farber D. 

Organization: Patton Boggs LLP on behalf of James Hardie Building Products, Inc. 

11/19/2010 02:48 PM EST 2-4669
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

II. EPA has improperly estimated the total cost of the Proposed Rule by failing to consider the cost of compliance for 

POTWs, and by failing to analyze the potential costs faced by local businesses that discharge to POTWs. 

The Regulatory Flexibility Act requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice 

and comment rulemaking requirements under the Administrative Procedure Act. 5 U.S.C. § 601 et seq. This analysis 

"shall describe the impact of the proposed rule on small entities." 5 U.S.C. §§ 603, 604. Small entities include small 

government jurisdictions, such as Plant City, that is a government of a city, county, town, school district or special 

district with a population of less than 50,000. 5 U.S.C. § 601(5). 

Comment ID 2372-1.001.005 

Author Name: Farber D. 

Organization: Patton Boggs LLP on behalf of James Hardie Building Products, Inc. 

EPA's proposed rule represents a shortcut in estimating potential costs, and this shortcut has caused EPA to violate the 

Regulatory Flexibility Act by ignoring potential costs to POTWs and their customers, and grossly underestimating the 

total compliance costs for its proposed standards. By way of background, in January 2009 the Florida Department of 

Environmental Protection (FDEP) formally initiated rulemaking on numeric nutrient criteria and in July 2009 submitted 

draft criteria to EPA and requested comments on the state's proposed rule revisions. As part of this rulemaking process, 

FDEP estimated that the baseline cost of meeting its proposed standards were between $102 and $130 million per 

year. EPA sent back comments on September 16, 2009, making clear that it would reject Florida's draft criteria as 

submitted. Florida ceased work on its own numeric standards and, in its place, EPA published the instant Proposed 

Rule. 

Comment ID 2372-1.001.008 

Author Name: Farber D. 

Organization: Patton Boggs LLP on behalf of James Hardie Building Products, Inc. 

EPA's cost analysis ignored major cost-influencing factors and assumed certain figures based on a piecemeal analysis 

of FDEP's proposed standards that do not account for the full impact of EPA's more restrictive standards. This has 

caused EPA to violate the Regulatory Flexibility Act and wrongly concluding that its proposed rule "will not have 

significant economic impact on a substantial number of small entities." 75 Fed. Reg. 4222 (Jan. 26, 2010). To remedy 

these failures, Hardie respectfully suggests that EPA undertake an independent analysis of the full costs associated 

with its Proposed Rule. 

Response 

Comment ID: 0727.001.009 

11/19/2010 02:48 PM EST 2-4670
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Response: The commenter did not cite underlying data to support the assertion that additional power plants will need to be built to 

attain the numeric nutrient criteria. Also, see response to comment 1010.001.006 in issue category VII.D. 

Comment ID: 0884.001.003 

Response: This rule establishes standards that the State of Florida implements through the NPDES permit process and other CWA 

programs. The State has discretion in developing NPDES point source discharge limits as needed to comply with the standards 

established in this rule. While Florida’s implementation of the rule may ultimately result in new or revised permit conditions for 

some dischargers, including small entities, EPA’s action, by itself, does not impose any of these requirements on small entities -­

that is, these requirements are not self-implementing. Thus, this rule does not itself establish any requirements that are applicable to 

small entities. 

Comment ID: 1010.001.004 

Response: EPA disagrees with this comment. This rule does not contain requirements specific to any entities large or small. 

Because this rule does not contain any requirements directly applicable to small entities, RFA/SBREFA is not applicable. The State 

of Florida has substantial flexibility in how it implements the water quality standards in this rule, including the flexibility to identify 

the most cost-effective solutions and to consider economic and other factors. See also response to comment 1011.001.019 in issue 

category BL_NPS_AG. EPA disagrees that the rule will result in wastewater treatment plant costs as high as $24.4 billion (see 

response to comment 1688-5.001.004 in issue category EA_OPO). EPA has revised its estimate of costs for wastewater treatment 

plants for the final rule (for details see the economic analysis accompanying this final rule). 

Comment ID: 1098-1.001.002 

Response: See response to comment 0884.001.003. 

Comment ID: 1098-3.001.004 

Response: See response to comments 1010.001.004 and 0884.001.003. EPA disagrees that the rule will result in wastewater 

treatment plant costs as high as $24.4 billion (see response to comment 1688-5.001.004 in issue category EA_OPO). The 

commenter did not provide the underlying data or rationale to support the claim that numeric criteria will result in excessive 

additional costs to add fertilizer to irrigation water. 

Comment ID: 1177.001.002 

Response: See response to comment 1010.001.004. 

11/19/2010 02:48 PM EST 2-4671
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID: 1177.001.003 

Response: See response to comment 1010.001.004 and 0884.001.003. 

Comment ID: 1331-1.001.011 

Response: See response to comment 1010.001.004. In addition, the numeric criteria in this rule are specific to Florida lakes and 

flowing waters, and are not applicable to the arid west. 

Comment ID: 1359-1.001.010 

Response: See response to comment 1010.001.004 and 1010.001.006 in issue category VII.D. With regard to State implementation 

of nutrient criteria through TMDLs, see response to comment 1688-5.001.004 in issue category EA_OPO. For waters that are not 

impaired, dilution may be available to point sources in the derivation of water quality-based effluent limits. For the final rule, EPA 

evaluated a sample of industrial dischargers to develop an estimate of potential compliance costs. Incremental impacts to 

stormwater dischargers are uncertain and will be highly site-specific. Nevertheless, EPA developed estimates of potential 

stormwater costs for the final rule under different scenarios and has revised its economic analysis accordingly. 

Comment ID: 1444-1.001.003 

Response: EPA disagrees that the Agency avoids compliance with statutory cost-effectiveness criteria. 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 implementation of EPA's numeric nutrient criteria and the assumptions upon which 

those estimates are based. As discussed in the preamble, section VII.C Regulatory Flexibility Act, EPA’s water quality standards 

do not directly apply to any discharger, including small entities. These water quality standards are implemented through various 

water quality control programs, including the National Pollutant Discharge Elimination System permit program, that are 

administered by the State permitting authority. 

� 

Comment ID: 1474-1.001.035 

Response: See response to comment 1010.001.004 and 1010.001.006 in issue category VII.D. 

Comment ID: 1474-1.001.115 

11/19/2010 02:48 PM EST 2-4672
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Response: See response to comment 1010.001.004. 

Comment ID: 1475-1.001.018 

Response: The commenter did not provide the underlying data or rationale to support the assertion that numeric criteria will result 

in a need to unnecessarily remove nutrients from reuse water prior to it being applied to lawns and golf courses. See also response 

to comment 1010.001.004 and 1010.001.006 in issue category VII.D. 

Comment ID: 1482-1.001.023 

Response: See response to comment 1010.001.004. 

Comment ID: 1530.001.047 

Response: See response to comment 1010.001.004. 

Comment ID: 1563-1.001.004 

Response: Cost estimates contained in the numerous Florida stormwater utility plans cited do not represent the incremental cost of 

complying with this rule because these plans already exist and are thus considered baseline costs that are not attributable to this rule. 

Furthermore, the commenter does not cite the underlying data or rationale to support the assertion that this rule will result in “$100s 

of millions of yearly costs.” Because the water quality that will ultimately result from implementation of these plans is not known, 

whether or not these controls are sufficient to attain the criteria is uncertain and highly site-specific. Nevertheless, EPA developed 

estimates of potential stormwater costs for the final rule under different scenarios and has revised its economic analysis accordingly.

 See EPA's economic analysis for more detail. 

� 

Comment ID: 1645-1.001.011 

Response: EPA disagrees with this comment. The commenter does not cite the underlying data or information to support the 

assertion that EPA “mandated” FDEP to adopt a particular methodology in the draft criteria FDEP proposed. These draft criteria 

are available at: http://www.dep.state.fl.us/water/wqssp/nutrients/docs/tsd_nutrient_crit.docx. Furthermore, EPA’s economic 

analysis was informed by FDEP’s current implementation procedures, including current TMDLs that require point sources to meet 

stringent nutrient targets. See also response to comment 1688-5.001.004 in issue category EA_OPO. 

11/19/2010 02:48 PM EST 2-4673
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID: 1770-1.001.054 

Response: EPA identified control scenarios and costs for urban runoff and evaluated these costs for the final rule. EPA also 

accounts for costs associated with downstream protection values (DPVs). Given that the comments point out that there could be 

additional costs for septic tank upgrades or agricultural BMPs for small entities (in reference to the Regulatory Flexibility Act), 

EPA notes that the city is not responsible for septic tank upgrades or agricultural BMPs. Furthermore, the rationale for asserting 

additional costs associated with reclaimed water is unclear (see also response to comment 1642-1.001.009 in issue category ECON). 

Because the water quality that will ultimately result from implementation of current and future BMPs is not known, whether or not 

these controls are sufficient to attain the criteria is uncertain and highly site-specific. However, federal regulations allow economic 

factors to be considered through use attainability analyses, and contain implementation flexibility to avoid adverse substantial and 

widespread economic and social impacts. See also response to comments 0884.001.003 and 1010.001.004. 

Comment ID: 1778-1.001.017 

Response: The commenter did not provide data or analysis to support the claim that numeric criteria will result in a need to 

unnecessarily remove nutrients from reuse water prior to it being applied to lawns and golf courses. Also see response to comment 

1010.001.004 and 1010.001.006 in issue category VII.D. 

Comment ID: 1786-1.001.033 

Response: See response to comment 1010.001.004 and 1010.001.006 in issue category VII.D. 

Comment ID: 1786-1.001.035 

Response: See response to comment 1010.001.004 and 1010.001.006 in issue category VII.D. 

Comment ID: 2732-1.001.004 

Response: See response to comment 1010.001.004. 

Comment ID: 2372-1.001.005 

Response: See response to comment 1010.001.004. 

Comment ID: 2372-1.001.008 

11/19/2010 02:48 PM EST 2-4674
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Response: See response to comment 1010.001.004. 

VII.D - UNFUNDED MANDATES REFORM ACT 

Comment ID 1010.001.006 

Author Name: Nelson B. 

Organization: City of Bonita Springs 

2. Small Government Agency Plan "Unfunded Mandates" 

Congress enacted the Unfunded Mandates Reform Act ("Act"). One of the main purposes of the Act was to end the 

imposition, in the absence of full consideration by Congress, of federal mandates on state, local, and tribal governments 

without adequate federal funding, in a manner that can displace other essential state, local, and tribal governmental 

priorities. Under Section 202 of the Act, EPA is required to provide a written statement, including a cost-benefit analysis, 

for proposed and final rules with federal mandates that may result in expenditures to local governments and aggregates 

of $100 Million or more in any one year. The written statement must have EPA identify and consider a reasonable 

number of regulatory alternatives and adopt the least costly, most cost-effective or least provide some alternatives that 

achieves the objectives of the rule. EPA has taken the position that the proposed rule contains no federal mandates and 

contains no regulatory requirements that might significantly or uniquely adverse small governments. The determination 

of the EPA to not prepare a small government agency plan is arbitrary and capricious. 

Furthermore, Florida Statutes §163.3177(3)(b)1 requires local governments to update its comprehensive plan capital 

improvements element on an annual basis in order to maintain a financially feasible 5-year schedule of capital 

improvements. A concern is that the proposed rule will trigger the situation where Bonita Springs comprehensive plan 

will need to reschedule its priorities, which meets the definition of an unfunded mandate. 

Comment ID 1098-1.001.003 

Author Name: Vance A. 

Organization: City of Bonita Springs 

Unfunded Mandates Reform Act ("Act") 

• Bonita Springs is concerned the rulemaking will displace other important governmental priorities. 

• A cost benefit statement is required whenever the aggregate cost of the rule is over $100 million. EPA did not do one, 

but asserted that the proposed rule contains no federal mandates and contains no regulatory requirements that might 

significantly or uniquely adverse small governments. 

Comment ID 1098-3.001.005 

Author Name: Vance A. 

11/19/2010 02:48 PM EST 2-4675
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Organization: City of Bonita Springs 

2. Small Government Agency Plan "Unfunded Mandates" 

Congress enacted the Unfunded Mandates Reform Act ("Act"). One of the main purposes of the Act was to end the 

imposition, in the absence of full consideration by Congress, of federal mandates on state, local, and tribal governments 

without adequate federal funding, in a manner that can displace other essential state, local, and tribal governmental 

priorities. Under Section 202 of the Act, EPA is required to provide a written statement, including a cost-benefit analysis, 

for proposed and final rules with federal mandates that may result in expenditures to local governments and aggregates 

of $100 Million or more in any one year. The written statement must have EPA identify and consider a reasonable 

number of regulatory alternatives and adopt the least costly, most cost-effective or least provide some alternatives that 

achieves the objectives of the rule. EPA has taken the position that the proposed rule contains no federal mandates and 

contains no regulatory requirements that might significantly or uniquely adverse small governments. The determination 

of the EPA to not prepare a small government agency plan is arbitrary and capricious. 

Furthermore, Florida Statutes §163.3177(3)(b)1 requires local governments to update its comprehensive plan capital 

improvements element on an annual basis in order to maintain a financially feasible 5-year schedule of capital 

improvements. A concern is that the proposed rule will trigger the situation where Bonita Springs comprehensive plan 

will need to reschedule its priorities, which meets the definition of an unfunded mandate. 

Comment ID 1108.001.005 

Author Name: Coughenour F. 

Organization: Plant City 

The -- the E.P.A. rule referred to at the last portion of the unfundated -- unfundated mandate reform act section, I would 

like to read this, "The proposed rule does not regulate or affect any entity, and, therefore, is not -- is -- subject to the 

requirements of sections 2 of 2 and 2 of 5 of the Unregulated Mandates Reform Act." It seems to us that it does really 

maybe not absolutely directly but -- but certainly indirectly through the regulations that the State will have to implement 

affect us. Also, it says that after that, E.P.A. determined that this proposal -- proposed rule contains no regulatory 

requirements that might significantly or uniquely affect small community -- small governments. Uniquely affect, maybe 

you are correct there, but -- but certainly, we will be significantly affected. 

Comment ID 1177.001.005 

Author Name: Vance A. 

Organization: Bonita Springs City Council 

The second concern that the city has with the proposed rule-making is the Unfunded Mandates Reform Act. A concern 

the city has is that the proposed rule-making will displace other important governmental priorities. We recognize that 

clean water is a priority, and in the letter that the mayor has sent for the city of Bonita Springs, it explains that we have 

11/19/2010 02:48 PM EST 2-4676
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

adopted a fertilizer ordinance. We have -- we have done everything you can get for best efforts, but at the same time, 

we have other priorities, too, that we need to calculate into the mix. 

The problem with the Unfunded Mandates Reform Act is it does require a cost benefit statement whenever the 

aggregate cost of the rule is over 100 million. EPA decided not to do one, but asserted that there was no federal 

mandates in the rule, and any regulatory requirement would not significantly or uniquely adverse small governments. 

Contrast this to what else is in the docket from the Florida Water Environmental Association Utility Council study, where 

the cost to meet EPA limits is between 24.4 billion and 50.7 billion. This is not a Chesapeake Bay of $2.50 a year per 

citizen. This is substantially more and deserves to have a cost benefit analysis going through the act. 

Comment ID 1298-1.001.003 

Author Name: Gastesi R. 

Organization: Board of County Commissioners, County of Monroe 

Rule Making Procedure(s): 

Unfunded Mandates & Effect on Small Governmental Entities·· The proposed rules will undoubtedly require capital 

expenditures. Some of those expenditures may already be anticipated, others may be additional expenditures requiring 

changes to the County's capital plans. The County's Comprehensive Plan is required to be fiscally feasible[1]. The 

addition of new and more stringent water quality requirements will require revisions the County's near term capital 

planning priorities. The County does not concur with EPA's conclusions that the proposed rules do not contain any 

unfunded mandates or create additional requirements on small governmental agencies because they merely set 

requirements to be used by FDEP. Clearly the County's experience has shown that meeting our existing water quality 

requirements will necessitate a significant commitment of resources, and meeting more stringent requirements will 

require more resources. As an example of this amplified financial impact, while the drinking water provided in the 

County meets or exceeds all drinking water standards, the concentration of phosphorus in that drinking water (>0.2 

mg/I) exceeds the criteria proposed for lakes, springs, and canals (0.01-0.05 mg/l) in EPA's proposed rule. Even if the 

County's drinking water were used as an irrigation source, it would require more treatment and cost to meet the 

requirements contemplated in EPA's rule. 

[1] Section 163.3177(2), F.S. 

Comment ID 1352-1.001.022 

Author Name: Herr M. 

Organization: Polk County 

5. The EPA nutrient criteria rule is essentially an unfunded mandate requiring municipalities to pay for implementation. 

Significant Federal funding should accompany this EPA rule. 

11/19/2010 02:48 PM EST 2-4677
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

The proposed rule published in the Federal Register states: "[it] contains no regulatory requirements that might
 

significantly or uniquely affect small govemments (EPA, 2010)". This statement is clearly misleading since:
 

a) No discussion of federal funding for implementation is included in the rule and;
 

b) Several paragraphs in the rule discuss how regulated entities need to demonstrate compliance.
 

Essentially then, this is an unfunded mandate and the proposed rule will have a direct financial burden on local
 

governments. The enormity of the potential financial impact specifically to Polk County is illustrated below.
 

Financial Analysis of Impacts to Polk County
 

There is a limit to what municipalities can afford to expend to improve water quality. The financial impact for retrofitting
 

Polk County's MS4 outfalls to existing impaired waters is estimated at $95 million dollars over the next 20 years for
 

construction alone. This estimate is based on using conventional stormwater treatment technology that typically
 

provides 40%-60% nutrient reductions; an insufficient performance level to meet the proposed nutrient criteria. More
 

expensive BMP's will therefore be required to achieve an enhanced level of treatment. The proposed nutrient criteria
 

will result in over 95% of Polk County's surface waters being listed as impaired, requiring enhanced treatment of
 

stormwater outfalls in each affected watershed. Polk County's costs are anticipated to increase to $332 million over 20
 

years as a result. This does not include any costs to Polk County's 17 municipalities. 


Comment ID 1359-1.001.042 

Author Name: Andes F. 

Organization: Barnes & Thornburg LLP on behalf of Federal Water Quality Coalition 

It is clear that EPA's proposal will result in costs to the economy that will be greatly in excess of $100 million a year and 

EPA must provide a more detailed analysis of costs, benefits, and alternatives under the Unfunded Mandates Reform 

Act of 1995. 

Comment ID 1474-1.001.080 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

Similarly, it is not legally correct for EPA to take the position, for the purpose of determining the applicability of the 

Unfunded Mandates Reform Act, that: 

This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, 

local, or tribal governments or the private sector. The State may use these resulting water quality criteria in 

implementing its water quality control programs. This proposed rule does not regulate or affect any entity and, therefore, 

is not subject to the requirements of sections 202 and 205 of UMRA. 

11/19/2010 02:48 PM EST 2-4678
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Id. (emphasis added) 

Comment ID 1474-1.001.111 

Author Name: Herz W. 

Organization: The Fertilizer Institute 

As discussed below, EPA proposed standards will impose costs of over $100 million a year. Accordingly, EPA must 

meet the requirements of the Unfunded Mandates Reform Act. Similarly, an accurate estimate of costs is likely to show 

that further analysis under the Regulatory Flexibility Act is required. 

Comment ID 1563-1.001.005 

Author Name: Ward G. 

Organization: Coastal-Environmental 

D. Unfunded Mandates Reform Act - The one column analysis falsely concludes that establishing a numeric standard is 

not regulating or affecting any entity! You must prepare a statement about the "benefits and costs because the 

aggregate expenditures of state, local and tribal governments or the private sector is more than $100 million per year 

(adj.). The costs to comply acts as an additional "tax" which then requires analysis of secondary impacts as to number 

of employees which could be hired or new technology spending delayed. USEPA needs to accomplish a special 

assessment as to impacts on state & local governments and the private sector. Your analysis takes an "arbitrary and 

capricious" tact! 

Comment ID 1564-1.001.010 

Author Name: Williams G. 

Organization: Florida Rural Water Association 

4. The EPA nutrient rule constitutes an unfunded mandate. Due to the exorbitant and unreasonable costs for smaller 

communities to comply with this proposed rule, EPA should establish a grant funded financing program to pay all costs 

incurred by each entity required to comply with this rule in Florida. It is suggested that because of the already 

unreasonable burden on small communities for achieving compliance with existing EPA regulations that the funding be 

a 100% grant program. A program such as this would prevent imposing an unreasonable and significant financial 

burden on Florida's residents. 

Comment ID 1770-1.001.055 

11/19/2010 02:48 PM EST 2-4679
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Author Name: de la Parte, Jr. E. 

Organization: de la Parte & Gilbert, P.A. on behalf of Plant City 

C. Unfunded Mandates Reform Act 

In the Proposed Rule, the EPA addresses Title Il of the Unfunded Mandates Reform Act of 1995 ("UMRA"), which 

establishes requirement for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal 

governments and the private sector. Under Section 202 of the UMRA, EPA generally must prepare a written statement, 

including a cost-benefit analysis, for proposed and final rules with "Federal mandates" that may result in expenditures to 

state, local, and Tribal governments, in the aggregate, or to the private sector of $100 million or more in anyone year. 

As discussed above and in the Cost Report, the Proposed Rule will result in expenditures in excess of $100 million and 

therefore meets this criterion of the UMRA. Section 205 of the UMRA generally requires EPA to identify and consider a 

reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome 

alternatives that achieves the objectives of the rule. 

However, the EPA has determined that it is not subject to these requirements because 

The Proposed Rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, 

local, or tribal governments or the private sector. The State may use these resulting water quality criteria in 

implementing its water quality control programs. This proposed rule does not regulate or affect any entity and, therefore, 

is not subject to the requirements of sections 202 and 205 of UMRA.[17] 

Plant City disagrees with the EPA's determination that the Proposed Rule contains no Federal mandates and does not 

regulate or affect any entity. As discussed in the beginning of the Proposed Rule, the EPA is subject to a Consent 

Decree wherein it must issue a proposed rule setting forth numeric nutrient criteria for lakes and flowing waters in 

Florida by January 14,2010 and a final rule by October 15,2010[18]. Thus, the EPA itself is responsible for regulation of 

state, local, and tribal governments and the private sector. In the sentence stating "the State may use these resulting 

water quality criteria in implementing its water quality control programs", the EPA's use of the word "may" is also 

misleading. While the State is not required to adopt the numeric criteria in its water quality programs, failure to do so will 

result in EPA asserting authority over regulation of waterbodies. Thus, if the State fails to implement the Proposed Rule, 

the EPA is required to regulate the state, local, and tribal governments and private sector. The EPA cannot escape its 

responsibility under the UMRA by simply stating the State may use these resulting water quality criteria in implementing 

its water quality control programs and assume that the State will do so. Instead, the EPA must recognize that it may be 

responsible for implementing the Proposed Rule thereby regulating the entities meant to be protected under the UMRA. 

Moreover, even if the State implements the Proposed Rule through its water quality programs, the EPA is still the entity 

responsible for mandating the State to take such action. 

Furthermore, the EPA finds the "proposed rule contains no regulatory requirements that might significantly or uniquely 

affect small governments" and thus the requirements of section 203 of UMRA do not apply.[19] Section 203 of UMRA 

requires the EPA to develop a small government agency plan if the regulatory requirements may significantly or 

uniquely affect small governments, including tribal governments. Although the Proposed Rule is applicable state-wide, 

the EPA failed to adequately address the unique or significant impacts on small governments. Given the significant 

costs associated with upgrading treatment facilities, small governments, with smaller revenue bases, may not have the 

11/19/2010 02:48 PM EST 2-4680
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

financial means available to upgrade their treatment facilities to treat the waters to meet the proposed criteria levels. 

Plant City recommends the EPA must revise this section of the Proposed Rule and perform the necessary analyses 

required by the UMRA. 

[17] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4222 (proposed 

January 26, 201O)(to be codified at 40 CFR Part 131). 

[18] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4175-4176 (proposed 

January 26, 2010)(to be codified at 40 CFR Part 131). 

[19] Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4222 (proposed 

January 26, 2010)(to be codified at 40 CFR Part 131). 

Comment ID 1782-1.001.047 

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 

XI. Contrary to EPA's assertion in the preamble that the "proposed rule does not regulate or affect any entity," the 

proposed rule directly affects utilities and constitutes an unfunded mandate 

In the preamble to the proposed rule, EPA asserts that "[t]his proposed rule does not regulate or affect any entity and, 

therefore is not subject to the requirements of [the Unfunded Mandates Reform Act]."[121] This statement cannot be 

reconciled with the facts or the law. As explained above, water quality criteria are used in the NPDES and TMDL 

programs. If EPA truly believes that its proposed rule does not "regulate or affect" anyone, then this rulemaking is a 

useless and futile exercise that does not comply with the Clean Water Act or EPA's own (albeit, invalid) necessity 

determination.[122] 

The only reasonable conclusion to draw from EPA's odd assertion that this rulemaking is meaningless is that EPA 

wished to avoid the requirements of the Unfunded Mandates Reform Act to conduct an exhaustive cost-benefit analysis 

and consider regulatory alternatives. EPA cannot simply opt out of the statute's requirements, even when confronted 

with an unreasonable rulemaking schedule in a Consent Decree. 

Rather than seeking to avoid the Unfunded Mandates Reform Act, EPA should simply acknowledge that its rule 

constitutes an unfunded mandate. The unreasonable costs imposed by this can either be remedied by a grant program 

to pay all costs incurred by each entity required to comply with this flawed rulemaking or by revoking the necessity 

determination. 

[121] 75 Fed. Reg. at 4222 (emphasis added). EPA also mysteriously asserts that its proposed rule does not establish 

requirements applicable to small entities (including utilities serving populations of less than 50,000), and thus the 

Regulatory Flexibility Act does not apply. Id. 

[122] Earlier in the preamble, EPA admits that “if EPA does finalize this proposed rule, the EPA promulgated [water 

quality standards] would be applicable [water quality standards] for the purposes of the CWA.” Id. at 4216. 

11/19/2010 02:48 PM EST 2-4681
 
 

Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID 1786-1.001.034 

Author Name: Kirk K. 

Organization: National Association of Clean Water Agencies 

EPA's federally promulgated water quality standards will be legally applicable to small entities (as well as others) that 

discharge nutrients into Florida lakes and flowing waters. EPA claims that the "proposed rule does not regulate or affect 

any entity and, therefore, is not subject to the requirements of" the Unfunded Mandates Reform Act since the criteria will 

not be applied directly as a discharge limit for a permittee. However, where a discharge has the reasonable potential to 

cause, or contribute to an excursion of numeric or narrative water quality criteria, the permitting authority must develop 

permit limits as necessary to meet water quality standards. 

Comment ID 1797-1.001.014 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

V. Economic Considerations 

a. The EPA's Obligation under the Unfunded Mandates Reform Act, the Regulatory Flexibility Act, and Executive 

Order 13132 

The EPA has not properly recognized its obligations under the Unfunded Mandates Reform Act, the Regulatory 

Flexibility Act, and Executive Order 13132. The EPA has disregarded the mandates of the laws and the executive order, 

by mischaracterizing the effect of the new standard and inaccurately stating the division of state and federal 

responsibility in the implementation of the CWA. 

The EPA asserts that, "under the CWA, EPA's promulgation of WQS establishes standards that the State implements 

through the NPDES permit process. The State has discretion in developing discharge limits, as needed to meet the 

standards...this rule will not have a significant economic impact on a substantial number of small entities."[27] However, 

the EPA has prepared an inaccurate analysis of potential costs associated with meeting the proposed standards. 

[27] Water Quality Starts for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4222 (proposed January 26, 

2010) (to be codified at 40 C.F.R. pt. 131). 

Comment ID 1797-1.001.017 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

11/19/2010 02:48 PM EST 2-4682
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

The EPA has taken an unusual position regarding its effort to comply with the Unfunded Mandates Reform Act, 

premised on the following statement: "[t]he State may use these resulting water quality criteria in implementing its water 

quality control programs."[29] The statement implies this is merely a matter that the State of Florida may, at its election 

and in its discretion, implement on a permit-by-permit basis. From this premise, the EPA erroneously concludes that the 

proposed rule is not a federal mandate. 

[29] Id. 

Comment ID 2372-1.001.010 

Author Name: Farber D. 

Organization: Patton Boggs LLP on behalf of James Hardie Building Products, Inc. 

Congress enacted the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. § 1501 et seq., to ensure that federal 

agencies like EPA do not impose unfunded federal mandates on state, local, and tribal governments, or the private 

sector. If the EPA Proposed Rule "might significantly or uniquely affect small governments," then Section 203 of UMRA 

requires federal agencies to develop a plan to: 

(1) provide notice of the requirements to potentially affected small governments, if any; 

(2) enable officials of small governments to provide meaningful and timely input for any proposal containing significant 

federal intergovernmental mandates; and 

(3) inform, educate, and advise small governments on compliance with the requirements. 

2 U.S.C. § 1533. 

In this case, EPA's Proposed Rule clearly triggers the requirements of Section 203. First, the government of the City of 

Plant City, Florida, meets UMRA's definition of a "small government" because it is a city government in a jurisdiction 

with a population of fewer than 50,000. See 2 U.S.C. § 658(11). 

Second, EPA's regulatory action "might significantly or uniquely affect" the government of Plant City. As the utilities 

operation manager for the Plant City Department of Public Works testified at the February 17, 2010 hearing in Orlando: 

Right now one of the main concerns is that even with the 53 million dollars we've put into this state-of-the-art treatment 

plant, we have serious doubts that it would be and we're rather certain it would not be able to meet the standards at the 

point of discharge, if that's how they're applied. 

Regarding the pending downstream protective standards, if the standards are anymore strict than the instream 

standards right now, it's very likely it would cripple our whole facility and would require another major upgrade. 

See U.S. EPA Public Hearing on Proposed Water Quality Standards for the State of Florida, Transcript at 113 (Feb. 17, 

11/19/2010 02:48 PM EST 2-4683
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

2010) (emphasis added).[2] This testimony demonstrates that EPA's Proposed Rule might, if enacted, significantly 

affect Plant City in two important ways: (1) by rendering its state-of-the-art treatment plant inadequate to meet the water 

quality standards required by the proposed regulation; and (2) by proposing downstream protective standards that 

threaten to cripple the entire facility. 

For these reasons, EPA has an obligation under Section 203 of UMRA to develop a plan to, among other things, inform, 

educate and advise Plant City officials on how they might comply with the Proposed Rule. Notwithstanding its statutory 

obligations, EPA has not reached out to Plant City to explain how EPA believes that Plant City will be able to comply 

with the new requirements. 

As excerpted above, a Plant City official has testified that the city's state-of-the-art POTW facility will not be able to meet 

the standards in the Proposed Rule. In violation of Section 203 of UMRA, EPA has not advised this official, or any other 

Plant City official, on how the POTW might meet the proposed standards. Plant City officials have, in turn, been unable 

to provide Hardie with specifics regarding how the Proposed Rule will affect industries that discharge wastewater to the 

Plant City POTW. In this way, EPA has frustrated Hardie's ability to provide meaningful input regarding EPA's Proposed 

Rule. 

To remedy this violation of the UMRA, Hardie respectfully requests that EPA develop a Small Government Agency Plan 

pursuant to Section 203, 2 U.S.C. § 1533, and inform, educate, and advise Plant City officials on how it might use the 

existing technological tools available in the Plant City POTW to comply with the standards in the Proposed Rule. Until 

EPA does so, the proposed rule must be revised or withdrawn. 

[2] Available at www.epa.gov/waterscience/standards/rules/florida/transcript2-17noon2.txt 

Response 

Comment ID: 1010.001.006 

Response: This final rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or 

tribal governments or the private sector. Although the State of Florida must use the water quality criteria in this rule when 

implementing its water quality control programs, it does not constitute a federal mandate that would result in expenditures of 

$100M or more per year in the aggregate to state, local, and tribal governments, or to the private sector. This final rule does not 

regulate or affect any entity and, therefore, is not subject to the requirements of sections 202 and 205 of UMRA. See response to 

comments 0884.001.003 and 1010.001.004 in issue category VII.C. 

Comment ID: 1098-1.001.003 

Response: See response to comment 1010.001.006. 

Comment ID: 1098-3.001.005 

11/19/2010 02:48 PM EST 2-4684
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Response: See response to comment 1010.001.006. 

Comment ID: 1108.001.005 

Response: See response to comment 1010.001.006 and 1010.001.004 in issue category VII.C. 

Comment ID: 1177.001.005 

Response: See response to comment 1010.001.006 and 0675.001.005 in issue category BL_PS_M. 

Comment ID: 1298-1.001.003 

Response: See response to comment 1010.001.006 and 1010.001.004 in issue category VII.C. The commenter does not cite the 

underlying data or rationale for why EPA’s rule will require capital expenditures. In addition, the commenter does not provide the 

rationale to support the assertion that drinking water would need to be treated to be used as irrigation water in order for the numeric 

criteria to be attained. The criteria are for surface waters, not drinking water. The controls that will be required for discharges to 

inland waters that ensure the attainment of water quality standards are site-specific. There may be beneficial impacts of the criteria 

on drinking water supplies in terms of reduced treatment costs. 

Comment ID: 1352-1.001.022 

Response: See response to comment 1010.001.006. EPA disagrees with the commenter’s assertion that over 95% of Polk County’s 

surface waters will be listed as impaired as a result this rule. EPA’s analysis indicates that less than 40% of the WBIDs in Polk 

County would be incrementally impaired (not already impaired under FDEP’s existing narrative nutrient criteria but classified as 

impaired under this rule). In addition, the commenter does not provide the underlying data or rationale to support the assertion that 

conventional stormwater treatment technology would be insufficient to meet the water quality standards and that more expensive 

treatment will be required. The commenter does not cite the necessary studies to determine the proportional contribution of 

nutrients from stormwater into waters that will become identified as impaired under this rule, or the effectiveness of stormwater 

controls that would be implemented to meet the criteria. Such information is necessary to estimate the costs associated with 

stormwater controls needed to meet the criteria in this rule. See EPA's economic analysis entitled: "Economic Analysis of Final 

Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida" for details on how EPA estimated potential 

stormwater control costs. 

Comment ID: 1359-1.001.042 

11/19/2010 02:48 PM EST 2-4685
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Response: EPA has revised its analysis of costs and benefits to provide additional detail for this rule. See EPA's economic 

analysis. See also response to comment 1010.001.006. 

Comment ID: 1474-1.001.080 

Response: See response to comment 1010.001.006 

Comment ID: 1474-1.001.111
 

Response: See response to comment 1010.001.006 and 1010.001.004 in issue category VII.C.
 

Comment ID: 1563-1.001.005
 

Response: See response to comment 1010.001.006.
 

Comment ID: 1564-1.001.010
 

Response: See response to comment 1010.001.006, 1010.001.004 in issue category VII.C, and 1011.001.019 in issue category 

BL_NPS_AG. 

Comment ID: 1770-1.001.055 

Response: See response to comment 1010.001.006, 1010.001.004 in issue category VII.C, and 1011.001.019 in issue category 

BL_NPS_AG. 

Comment ID: 1782-1.-001.047
 

Response: See response to comment 1010.001.006. 


Comment ID: 1786-1.001.034 

Response: See response to comment 1010.001.006. 

11/19/2010 02:48 PM EST 2-4686
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID: 1797-1.001.014 

Response: EPA disagrees with the commenter’s assertion that EPA has not properly recognized its obligations under the Unfunded 

Mandates Reform Act, the Regulatory Flexibility Act, and Executive Order 13132. See response to comment 1010.001.006 and 

1010.001.004 in issue category VII.C. In addition, EPA has the responsibility and authority to promulgate federal water quality 

standards when state standards do not meet the requirements of the Clean Water Act. This rule does not have federalism 

implications because it will not have a substantial direct effect on the State, on the relationship between the national government 

and the State, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive 

Order 13132. Furthermore, this rule will not alter Florida’s considerable discretion in implementing its water quality standards 

program, which includes the possibility of adopting alternative water quality standards that EPA concludes meet the requirements of 

the Clean Water Act after promulgation of this rule, eliminating the need for these federal standards and prompting subsequent 

withdrawal by EPA. 

Comment ID: 1797-1.001.017 

Response: See response to comment 1010.001.006. 

Comment ID: 2372-1.001.010 

Response: See response to comment 1010.001.006, 1010.001.004 in issue category VII.C. 

VII.E - EXECUTIVE ORDER 13132 (FEDERALISM) 

Comment ID 0186-1.001.007 

Author Name: DuVal C. 

Organization: 

Executive Order 13132 specifically states that Federalism is rooted in the belief that issues that are not national in 

scope or significance are most appropriately addressed by the level of government closest to the people. This proposed 

rule steps in and wrests authority from the State of Florida by overriding its own determination that the proper method 

for maintaining water quality is to base each quality standard on specific metrics that take into account inputs, use, and 

growth potential. The proposed rule is narrow in scope as it applies only to Florida; that appears to violate the principle 

of Federalism. 

If the EPA truly wants to avoid any semblance of violating Executive Order 13132, then the EPA should propose that 

the rule shall affect all fifty states. Of course, the EPA also can take the long view, understand that one-size does not fit 

all, and work with the DEP, the State of Florida, the interested groups striving to succeed. 

11/19/2010 02:48 PM EST 2-4687
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID 1533-1.001.001 

Author Name: Ward G. 

Organization: 

These comments are intended to address Law (Code) compliance issues with referenced Proposed Rules. Numerous 

other commenters are addressing the technical deficiencies and our Florida Engineering Society today rendered a wide 

ranging six page document addressing many of the issues that you have not concluded adequately so as to be in a 

position to adopt your proposals. My testimony as the first public speaker in the afternoon of your Public Hearings in 

Tallahassee were intended to set the stage that Florida clearly "leads the nation" in progress towards the objectives of 

Federal Law addressing water resources. Given that we are a country of laws, it is incumbent upon the US 

Environmental Protection Agency to look at the Law first and evaluate each and every section to assure that your 

proposals are fully in accord with the words and intent of Congress. 

To that end, please address in detail, justification of your compliance with the following law languages and provisions or 

tell us and the public why you believe such law is not applicable: 

A. 33 USC 1251(b) Rights of the States 

B. 33 USC 1251(f) Needless duplication and unnecessary delays 

C. 33 USC 1251(g) Authority of the States Over Water 

D. 33 USC 1311 & 1312 In multiple provisions uses the term "with the concurrence of the State" (Obviously, the State of 

Florida has not concurred with the Administrator!) 

E. 33 USC 1313(c)(2)(B) How does Florida not comply currently? (Be specific to comply w/(4)) 

F. 33 USC 1315(b)(1)(D) Florida is alleged to be in compliance with this provision . How does USEPA reconcile its 

Proposed Rule economics with (D)? Where does USEPA's analysis every biennial differ? 

G. 33 USC 1323(2)(b)(1) Has USEPA coordinated ? When does it intend to do so? 

H. 33 USC 1329(2)(d)(1) Has USEPA ever approved/disapproved Florida's NPDES reports in relation to nutrients? 

I. 33 USC 1370 Florida has non-numeric nutrient standards that are more effective and more economical to achieve the 

end results required. 

J. 33 USC 1374 USEPA has used its Science Advisory Board, but, where are results from USEPA's Effluent Standards 

and Water Quality Information Advisory Committee? 

K. 33 USC 1375 Should be address in total, but, your Proposed Rule does not rely on these biennial reports, 

particularly required in (a) & (b). Why? 

11/19/2010 02:48 PM EST 2-4688
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

Comment ID 1563-1.001.006 

Author Name: Ward G. 

Organization: Coastal-Environmental 

E. EO 13132 Federalism - Contrary to your conclusion of no federalism implications, attacking Florida which has the 

expertise to deal in most any aspect of water resources, USEPA will progressively promote numeric standards contrary 

to 33 USC 1313 provisions. Major Federalism implications exist and USEPA's statements that Florida can just do what 

USEPA says will avoid the problem is ridiculous. 

Comment ID 1797-1.001.018 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

Additionally, when referring to Executive Order 13132, the EPA asserts that "[t]his action does not have federalism 

implications."[30] However, the EPA began this rulemaking effort to settle third party litigation with several 

environmental advocacy groups. 

[30] Id. 

Comment ID 1797-1.001.020 

Author Name: Braswell S. 

Organization: Florida Farm Bureau 

It is well established under the CWA that states have primary responsibility to adopt water quality standards. The EPA 

usurped the state's obligation for no rational purpose. Based on the foregoing, the EPA's action has substantial 

federalism implications. The EPA must act accordingly under Executive Order 13132. 

Response 

Comment IDs: 0186-1.001.007, 1797-1.001.018, 1797-1.001.020 

Response: In response to the comments, EPA disagrees that the Agency has violated Executive Order 13132. Executive Order 

13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure 

“meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism 

implications.” “Polices that have Federalism implications” is defined in the Executive Order to include regulations that have 

11/19/2010 02:48 PM EST 2-4689
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

“substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of 

power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will 

not have substantial direct effects on the states, on the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. EPA’s 

authority and responsibility to promulgate federal water quality standards when state standards do not meet the requirements of the 

Clean Water Act is well established and has been used on various occasions in the past. Please refer to section VII.E in the 

preamble of this rule for further discussion of this Executive Order, including the paragraph that refers to EPA's extensive 

communication with the State of Florida to discuss EPA's concerns with the State's nutrient water quality criteria and the federal 

rulemaking process. 

Comment IDs: 1533-1.001.001, 1563-1.001.006 

Response: In response to the comments, and as explained in EPA's January 14, 2009 determination and the preambles to the 

proposed and final rules, the legal standards or provisions that guide EPA's action here are CWA section 303(c) and 40 CFR part 

131, specifically 40 CFR section 131.11(a) and the need for water quality criteria that are protective of applicable designated uses 

and based on sound scientific rationale. The actions taken by EPA in promulgating numeric nutrient criteria are not contrary to the 

sections of the CWA cited by the commenter. Nor has the commenter explained how EPA's rule is unreasonable in light of any of 

the cited sections. Water quality standards are, in general, adopted by the states in compliance with various requirements 

established by EPA under the CWA. However, the Act also provides for EPA to promulgate water quality standards for a state in 

some circumstances. EPA takes such action when it disapproves a new or revised water quality standard submitted by a state or 

when the Agency determines that new or revised standards are necessary to meet the requirements of the CWA. CWA section 

303(c)(4)(B), 33 U.S.C. section 1313(c)(4)(B). In this case, EPA determined that numeric nutrient criteria are necessary in Florida 

to meet the requirements of the CWA. The basis for EPA's determination is set out in its January 14, 2009 determination, as well as 

the preambles to the proposed and final rules. 

VII.F - EXECUTIVE ORDER 13175 (CONSULTATION AND 

COORDINATION WITH INDIAN TRIBAL GOVERNMENTS) 

Comment ID 0809.001.002 

Author Name: Diffenderfer M. 

Organization: Lewis Longman & Walker, P.A. on behalf of Seminole Tribe of Florida 

As you know and you have identified in the proposed rule, there is a special relationship that exists between the federal 

government, the agencies of the federal government and the Seminole Tribe known as a trust responsibility or 

government to government. These are acknowledged in the constitution, the treaties, statutes, executive orders and 

court decisions, and as such we are recognized as a domestic dependent nation with special protection from the federal 

government. In fact, the federal government has a fiduciary responsibility and role to ensure that our best interests are 

met and that the self-determination of tribes is protected. This has been further explained by President Obama and by 

Administrator Lisa Jackson in this last 2009. Therefore, the agency works to encourage tribes to develop their own 

11/19/2010 02:48 PM EST 2-4690
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

policies, your agency, and she'll defer to tribes in the establishment of standards. And as you know, the tribe has been 

working with EPA on the development of nutrient criteria for our reservations, and we do actually have a plan for 

implementation. However, the tribe does have concerns with EPA's efforts to set standards for Florida in that it may 

interfere with the tribe's right to establish its own criteria. One issue pushed here is a trust responsibility. Of course, in 

the attempt to set standards by October of this year, well in advance of the tribe setting of standards on its own 

reservations, we are concerned that your setting of standards for the state will preordain methodologies that will 

inevitably apply to us and our trust lands and reservations. This will limit, we believe, our flexibility in developing our 

own standards. This is inconsistent with EPA's policy that Indian tribes are the primary parties for setting standards on 

their reservations. The second point that we want to bring is this downstream protection aspect of your proposed rule. In 

your watershed modeling, by necessity our waters, Seminole Tribe of Florida waters have been included when they 

were within a watershed of the state of Florida. By them setting standards for those downstream waters that are 

downstream from the tribe, you are in essence, we believe, dictating loading values for upstream tribal waters. Again, 

this is inconsistent, we believe, with your policy and trust responsibilities to the tribe. 

The next comment relates to upstream standards and the impact on our water entitlement from the state. We have a 

water rights compact with the state executed in 1987, adopted as both federal and state law. That compact, among 

many things, provides us with certain quantities of water for both our Big Cypress and Brighton Reservations. These are 

known as water entitlements. We are concerned that due to the setting of the standards of the state, that the South 

Florida Water Management District may not be able to live up to its commitments to us for these water entitlements, 

while at the same time complying with the standards being set by the EPA, and therefore this would jeopardize the 

supply of water to our reservation, and worse yet, put the state into a conflict as to whether they should be violating the 

Clean Water Act and its standards or violating its promises to the Seminole Tribe of Florida. It is critical to the Seminole 

Tribe that these water entitlements not be adversely impacted by the imposition of standards that cannot be met by the 

district. In addition, it puts the tribe in a catch 22 as to whether to receive waters from outside the reservation 

boundaries due to the potential resulting for us to have to clean up that water before it is then discharged from our 

reservation back to state waters. This tribe will not be put in a position where it is made responsible to clean up water 

that originates from off its reservations. However, we will not be denied our rights a supply of water from the state of 

water. 

We appreciate the massive undertaking that you have before you to set standards for the state of Florida, although we 

are not sure there is such need for haste, but we understand that is your decision. We do appreciate the efforts you 

have taken to assist us with the development of water quality standards on our reservations and the continuing work 

that you do to help us move forward with nutrient criteria for our reservation. Thank you for being here today. 

Comment ID 1415-1.001.004 

Author Name: Diffenderfer M. 

Organization: Lewis Longman & Walker, P.A. on behalf of Seminole Tribe of Florida 

In conclusion, the Seminole Tribe's comments are as follows: 

• By developing and implementing methodologies to derive numeric nutrient criteria both upstream and downstream of 

the Seminole Tribe's lands, the EPA may be preordaining approaches that will limit the Tribe's flexibility to develop and 

11/19/2010 02:48 PM EST 2-4691
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

implement alternative methodologies on its lands. 

Comment ID 1563-1.001.007 

Author Name: Ward G. 

Organization: Coastal-Environmental 

F. EO 12175 Indian Tribes - Of all states with numerous Indian properties in and near waters, the Indians have needs 

for funds to cover the direct and secondary financial cost of compliance with the proposed nutrient standards. Given 

that consultation has been initiated and that Indian lands are a major factor in water resource decisions in southern 

Florida, USEPA must offer a second round of notice and comments. 

Response 

Comment ID: 1415-1.001.004 

Response: EPA appreciates the concerns raised by the commenters regarding potential impacts of EPA’s numeric nutrient criteria 

for Florida’s lakes and flowing waters on the authorities and rights of the Seminole Tribe of Florida. EPA notes that it is not 

finalizing numeric nutrient criteria for flowing waters in South Florida in this rulemaking, thus this final rule will not affect the 

authorities or rights of the Seminole Tribe of Florida related to its waters within South Florida. Regarding EPA’s promulgation of 

numeric nutrient criteria for Florida’s lakes and flowing waters outside of South Florida, EPA's promulgation does not adversely 

affect the Seminole Tribe's ability to develop scientifically defensible numeric criteria that are protective of applicable designated 

uses for Tribal waters. Just like any state whose waters are upstream of another state, tribes with Treatment in the same manner as a 

state status for water quality standards and CWA section 401 certification purposes must adopt water quality standards for their 

waters that take into consideration and ensure the protection and maintenance of downstream water quality standards, pursuant to 

40 CFR 131.10(b). EPA's final rule does not dictate which methodology any tribe must use in order to satisfy this requirement; 

rather the respective tribes may choose the method that they believe best meets the needs of their citizens and environment, as long 

as those methods result in water quality criteria that protect applicable designated uses, are based on sound scientific rationale, and 

ensure the maintenance and protection of downstream standards. 

Comment ID: 0809.001.002 

EPA appreciates the concerns raised by the commenters regarding potential impacts of EPA’s numeric nutrient criteria for Florida’s 

lakes and flowing waters on the authorities and rights of the Seminole Tribe of Florida. In response to the comment, with regard to 

the Seminole Tribe's 1987 water rights compact with the State, to the extent that these waters are outside of South Florida, 

implementation of measures to attain the criteria finalized in this rule will be through state action, and EPA assumes that the State 

of Florida (possibly through the South Florida Water Management District) will implement measures to attain these final criteria in 

a way that meets any legal obligations that the State may have with respect to Tribal waters and water rights or entitlements. As 

recognized by the U.S. Supreme Court in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 

11/19/2010 02:48 PM EST 2-4692
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

719-721 (1994), implementation of water quality standards, including water quality criteria, could affect water rights or flow. EPA 

assumes that the State of Florida will choose the best way to meet the needs of its citizens and environment when implementing 

these criteria, as well as fulfill its obligations to the Tribe under the water rights compact. 

Comment ID: 1563-1.001.007 

Response: EPA appreciates the concerns raised by the commenters regarding potential impacts of EPA’s numeric nutrient criteria 

for Florida’s lakes and flowing waters on the authorities and rights of the Seminole Tribe of Florida. EPA disagrees with the 

comment that the Agency must offer a second round of notice and comment given that consultation has been initiated and that 

Indian lands are a major factor in water resource decisions in southern Florida. In addition to the paragraph above, EPA believes 

that the extended comment period resulting in a 90-day public comment period, in conjunction with the additional public meetings 

(resulting in a total of 13 public meetings held in 6 different cities throughout the State), with a further 30 days to comment on 

EPA’s August 3, 2010 supplemental notice, provided sufficient time and opportunity for all interested parties to perform a thorough 

review of the proposed regulation and provide meaningful public comment to EPA. 

VII.G - EXECUTIVE ORDER 13045 (PROTECTION OF CHILDREN 

FROM ENVIRONMENTAL HEALTH AND SAFETY RISKS) 

Comment ID 1563-1.001.008 

Author Name: Ward G. 

Organization: Coastal-Environmental 

G. EO 13045 Environmental Health and Safety Risks - Using a bogus determination (not economically significant) and 

then opining the "Agency does not believe" begs the question of numerous children in western Palm Beach County and 

prior converted wetlands of South Florida. Much more rationale reasoning with facts needs to be accomplish in analysis 

of EO 13045. 

Comment ID 1645-1.001.015 

Author Name: Griswold R. 

Organization: Destin Water Users 

Vll.Section G. Executive Order 13045(Protection of Children from Environmental Health and Safety Risks) 

The EPA has determined that this Executive Order does not apply to this proposed rule. However, in the preamble to 

the rule, a justification for its need is because nutrients can cause methemeglobonemia which disproportionately affects 

children. In addition the Agency states that it does not apply because economic costs are insignificant which is 

incorrect. The reasons for the Agency determination that this EO does not apply is wholly self serving in that 

11/19/2010 02:48 PM EST 2-4693
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

compliance would extend the time frame for this rule putting them at odds with the time frame required by a Federal 

Judge. It appears that the Agency is in the position of either defying the office of the President of the United States or 

defying a Federal Judge. This determination means they opted for the former. 

Response 

Comment IDs: 1563-1.001.008, 1645-1.001.015 

Response: EPA disagrees with commenters that the Agency has incorrectly interpreted its position regarding Executive Order 

13045. Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 

23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and 

(2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. 

As stated in the preamble of this final rule (section VII.G), this action is not subject to Executive Order 13045 because it is not 

economically significant as defined in Executive Order 12866, and because the Agency's promulgation of this rule will result in the 

reduction of environmental health and safety risks, i.e., methemoglobinemia (blue baby syndrome), that could present a 

disproportionate risk to children. 

VII.H - EXECUTIVE ORDER 13211 (ACTIONS THAT SIGNIFICANTLY 

AFFECT ENERGY SUPPLY, DISTRIBUTION, OR USE) 

Comment ID 1563-1.001.009 

Author Name: Ward G. 

Organization: Coastal-Environmental 

H. EO 13211 Energy - The eight line analysis is completely bogus. Energy is fully important in nutrient reductions or 

control. Complete reanalysis with facts and extensive statewide considerations is required for the next round of notice 

and comments. 

Comment ID 1564-1.001.005 

Author Name: Williams G. 

Organization: Florida Rural Water Association 

7. EPA has not addressed or explained how the new rule will impact the Regulatory Flexibility Act or Executive Order 

13211. Energy impacts of the necessary membrane treatment technologies are enormous. The amounts of coal that will 

be necessary to be combusted to power the installation of a significant number of membrane treatment facilities will be 

substantial. The carbon footprints of the manufacturing, construction and operation of energy intensive facilities that will 

discharge nitrogen compounds in the manufacturing and operation of these facilities to the receiving environment are 

enormous. The nitrogen compounds discharged by the excess power production are the same compounds targeted by 

11/19/2010 02:48 PM EST 2-4694
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

EPA for removal in the new regulations. EPA needs to work with the DOE to identify these impacts so a proper cost 

benefit analysis can be performed. 

Comment ID 1645-1.001.016 

Author Name: Griswold R. 

Organization: Destin Water Users 

Vll.H. Executive Order 13211(Actions that significantly affect Energy Supply, Distribution, or Use) 

The Agency has determined that this rule does not present a significant energy action. Again, the Agency has made a 

wholly self serving determination. The technology required to treat to the limits required by this rule will easily cause an 

increase greater than 10% of current usage in Florida. Again the Agency must either defy the office of the President or 

a Federal Judge and again they opted for the former. 

Response 

Comment IDs: 1563-1.001.009, 1564-1.001.005, 1645-1.001.016 

Response: EPA disagrees with comments asserting that the Agency’s position regarding Executive Order 13211 is incorrect. 

‘‘Significant energy action’’ means any action by an agency (normally published in the Federal Register) that promulgates or is 

expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed 

rulemaking, and notices of proposed rulemaking: (1)(i) that is a significant regulatory action under Executive Order 12866 or any 

successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is 

designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Although this 

rule is a significant regulatory action under EO 12866, it is not a “significant energy action” as defined by Executive Order 13211 

because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Refer to EPA’s document: 

“Economic Analysis of Final Water Quality Standards for Nutrients for Lakes and Flowing Waters in Florida” (located in the 

docket ID EPA-HQ-OW-2009-0596 associated with this rulemaking) which includes estimated costs to permitted facilities as a 

result of this final rule. EPA considers biological nutrient removal the most reasonable treatment technology. Energy use 

associated with biological nutrient removal overhead and maintenance is included in these costs. 

EPA disagrees with the premise that membrane treatment technologies will be required for all wastewater treatment plants and 

industrial dischargers (the term "membrane treatment technologies" is used primarily to refer to reverse osmosis (RO)). FDEP’s 

own TMDL protocol indicates that comparative cost-benefit analyses can be used to compare options for point and nonpoint 

sources. Because domestic and industrial wastewater point sources already treat pollutants to a high degree, the FDEP Allocation 

Technical Advisory Committee recommended in 2001 that the first step in reducing loads should be a consideration of the loads 

when 45% of nonpoint sources participate in current BMP requirements. The second step should be consideration of the loads 

when 90% of nonpoint sources participate in Best Management Practices. If neither of these alternatives reduces loads sufficiently, 

then load reduction requirements for both point and nonpoint sources may be considered. The result of these recommendations is 

11/19/2010 02:48 PM EST 2-4695
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

that FDEP has issued few revised NPDES permits reflecting TMDL wasteload allocations (WLAs). Of the 146 nutrient-related 

TMDLs in to date, only 7 have WLAs that reduce current or permitted nutrient loads from point sources, and there is no indication 

that any of those 7 point sources are planning to implement RO for compliance. 

EPA considers biological nutrient removal the most reasonable treatment technology. Energy use associated with biological 

nutrient removal overhead and maintenance is included in EPA’s cost estimates associated with wastewater treatment plants. In 

addition, biological nutrient removal is not typically an energy intensive process. In fact, for certain plants, upgrading to biological 

nutrient removal could result in energy savings. A discharger would not be required to meet the numeric nutrient criteria at end-ofpipe unless there is no assimilative capacity in the receiving waterbody and other less costly options are unavailable. It is 

reasonable to assume that FDEP will take the most reasonable approach to permitting. This is how FDEP has approached the issue 

before, and there is no reason to believe they will do it differently in the future. 

VII.I - NATIONAL TECHNOLOGY TRANSFER ADVANCEMENT ACT 

OF 1995 

Comment ID 1563-1.001.010 

Author Name: Ward G. 

Organization: Coastal-Environmental 

I. National Technology Transfer Advancement Act is not within my expertise At the same time I recollect that possibly 

Holland and Germany may have initiated such standards bodies? Are such possible? 

Response 

Comment ID: 1563-1.001.010 

Response: EPA appreciates the comment, however, this comment does not provide information for EPA to review as to how it 

pertains to the Agency’s rule to establish numeric nutrient criteria for Florida’s lakes and flowing waters. 

VII.J - EXECUTIVE ORDER 12898 (FEDERAL ACTIONS TO ADDRESS 

ENVIRONMENTAL JUSTICE IN MINORITY POPULATIONS AND 

LOW-INCOME POPULATIONS) 

Comment ID 1563-1.001.011 

Author Name: Ward G. 

Organization: Coastal-Environmental 

11/19/2010 02:48 PM EST 2-4696
 
Chapter 2 - Comment Documents Statutory and Executive Order Reviews 

J. EO 12898 - Environmental Justice and Minority Populations requires the same evaluation as in G. for EO 13045! 

Response 

Comment ID: 1563-1.001.011 

Response: EPA disagrees with the comment that the Agency has incorrectly interpreted its position regarding Executive Order 

12898. Executive Order 12898 (59 FR 7629 (Feb. 16, 1994) establishes federal executive policy on environmental justice. EPA 

reminds the commenter that the main provision of the Executive Order directs federal agencies, to the greatest extent practicable 

and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, 

disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority 

populations and low-income populations in the United States. As stated in the preamble of this final rule, section VII.J, EPA has 

determined that this proposed rule does not have disproportionately high and adverse human health or environmental effects on 

minority or low-income populations because EPA's rule would afford a greater level of protection to both human health and the 

environment than the level that is currently in effect under Florida law. 

11/19/2010 02:48 PM EST 2-4697