UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 4

Herschel T. Vinyard Secretary ATLANTA FEDERAL CENTER 61 FORSYTH STREET ATLANTA, GEORGIA 30303-8960 

### JUN 

### 2 72013

Florida Department ofEnvironmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000

Dear Secretary Vinyard:

The U.S. Environmental Protection Agency, Region 4, has completed our review ofFlorida Department ofEnvironmental Protection's amendments to 62-302.300(19), F.A.C, which incorporates byreference the March 2013 version ofthe Implementation ofFlorida's Numeric Nutrient Standards (Implementation Document) that addresses implementation ofthe State's numeric nutrient standards. These revisions, which FDEP transmitted to the EPA on June 27, 2013, with the necessary certification from the Office ofGeneral Counsel, further define orrefine FDEP's numeric nutrient standards and are, themselves water quality standards. The EPA is hereby approving those specific water quality standards which are contained in the Implementation Document. The details ofthe approval are discussed in the enclosed decision document.

We want to compliment you on the effort and commitment you and your staffdemonstrated in developing your Implementation Document. We believe this document will further enhance your efforts to protect and restore water quality in Florida. We look forward to future communication and collaboration between our Agencies as you move forward with implementation.

Ifyou have any questions or concerns, please do not hesitate to call me at (404) 562-9345 orMs. Joanne Benante at (404) 562-9125.

Water Protection Division

Enclosure

Internet Address (URL) • http://www.epa.gov Recycled/Recyclable • Printed wrth Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)Executive Summary

OnJune 27, 2013, Florida Department ofEnvironmental Protection submitted new and revised water quality standards (WQS) for review bythe U.S. Environmental Protection Agency pursuant to section 303(c) ofthe Clean Water Act (CWA). The June 27, 2013, submittal includes
a number ofnew orrevised WQS, related to subsection 62-302.300(19), which incorporates by reference FDEP's technical document entitled, "Implementation ofFlorida's Numeric Nutrient Standards" (Implementation Document). The Implementation Document was submitted in initial form to the EPA in support ofFDEP's June 2012 adopted nutrient standards. FDEP incorporated byreference the final Implementation Document, dated March 2013, into the State nutrient rule, and submitted that final Document to the EPA for review and action under CW A section 303(c)
on the portions ofit that constitute new or revised water quality standards. Although, FDEP only recently submitted it to theEPA for such review and action, the EPAhas worked extensively with FDEP over the last few months and has had the final version ofthe Implementation Document since March 2013.

Section 303 ofthe CWA, 33 U.S.C. § 1313, requires states to establish WQS and to submit any revised ornew standards to the EPA for approval or disapproval. The revisions addressed in this document were approved for adoption bythe Florida Environmental Regulation Commission at a public hearing on April23, 2013. The Rules were submitted to the EPA in a letter dated June 27, 2013, from Matthew Z. Leopold, General Counsel for FDEP, to A. StanleyMeiburg, Acting Regional Administrator ofthe EPA's Region 4 Office. The General Counsel certified that the WQS revisions were duly adopted pursuant to Florida law.

The March 2013 Implementation Documentprovides important insight into the scientific basis for FDEP's numeric nutrient standards and their implementation for purposes ofNPDES permitting, assessment, and listing under section 303( d) ofthe CW A. When discussing implementation ofthe state nutrient rule, some provisions in the Document simplyreiterate provisions in the state rule orthe accompanying Stream Condition Index Primer which the EPA has already approved as WQS. Otherprovisions ofthe Document, however, further define or refine FDEP's numeric nutrient standards and are, themselves, WQS requiring the EPAreview. The EPA is taking action on the following major components ofthe Implementation Document
as WQS:

• Floral metric criteriaused to determine the biological component ofthe stream criteria along with a more refined description ofalgal community composition and the linear vegetative surveys (LVS).
• Information distinguishing waters that are excluded within the definition ofstream at subsection 62-302.200(36), F.A.C., i.e., tidally influenced segments, non-perennial streams, or actively maintained conveyances, such as, canals or ditches.

Pursuant to section 303(c) ofthe CW A, the EPAhas reviewed and is approving those portions of the Implementation Document that the Agencyhas determined constitute new orrevised WQS.Decision Document ofthe United States Environmental Protection Agency Under§ 303(c) ofthe Clean WaterAct: Review of62-302.300(19)

In a letter dated June 27,2013, from Matthew Z. Leopold, General Counsel for the Florida Department ofEnvironmental Protection, to A. StanleyMeiburg, Acting Regional Administrator ofthe EPA's Region 4 Office, FDEP submitted new and revised water quality standards for review bythe U.S. Environmental Protection Agency pursuant to section 303(c) ofthe Clean Water Act (CWA or Act). Inthe June 27, 2013, letter, the General Counsel certified that the WQS revisions were duly adopted pursuant to Florida law. The June 27, 2013, submittal includes
a number ofnew orrevised WQS, related to subsection 62-302.300(19), which incorporates by reference FDEP's Implementation Document. As set out more fully below, where the EPA has determined that amendments to subsection 62-302.300(19), including the specific document referenced in 62-302.300(19), are new orrevised WQS, the EPAhas reviewed and approved those revisions pursuant to section 303(c) ofthe CW A. 1

Section 303 ofthe CWA, 33 U.S.C. § 1313, requires states to establish WQS and to submit any revised or new standards to the EPA for approval or disapproval. The revisions addressed in this document were approved for adoption bythe FloridaEnvironmental Regulation Commission (ERC) at a public hearing on April23, 2013. The State Legislature exempted the document from legislation ratification otherwise required under s. 120.541(3), F.S.re.

EPA's Decision

Each ofFDEP's WQS revisions is addressed in detail below along with the EPA's analysis and conclusions.

Subsection 62-302.300(19) was added and reads as follows:
(19) The implementation ofnumeric nutrient standards under Rules 62-302.531 and 62- 302.532, F.A.C., shall be implemented consistent with the document titled "Implementation o(Florida 's Numeric Nutrient Standards," dated March 2013, which is incorporated by reference herein. Copies ofthis document maybe obtained from the Department's internet site at http://www.dep.state.fl.us/water/wqssp/swq-docs.htm orbywriting to the Florida Department ofEnvironmental Protection, Standards and Assessment Section, 2600 Blair Stone Road, MS 6511, Tallahassee, FL 32399-2400.

The EPA's November 30,2012, decision document concluded that "FDEP's September 2012 document titled "Implementation ofFlorida's Numeric Nutrient Standards Document Submitted to the EPA in Support ofthe Department ofEnvironmental Protection's Adopted Nutrient Standards for Streams, Spring Vents, Lakes, and Selected Estuaries" (Nutrient Standards Implementation Document)

...[was not considered] to include water quality standards," (on page 3) because it was not formally adopted bythe state as a binding provision oflaw. FDEP has now

1EPA has provided FAQs on "What is a New or Revised Water Quality Standard Under CWA 303(c)(3)?" at http://water.epa.gov/scitechlswguidance/standards/cwa303faq.cfm. The link provides detailed information ofsuch analysis.

1revised its WQS to include subsection 62-302.300(19), which incorporates the Implementation Document byreference into state rule. Subsection 62-302.300(19) is approved bythe EPA pursuant to section 303(c) ofthe Act.

Since the Implementation Document has nowbeen incorporated into state rule, the EPA has analyzed the substance ofthe document to determine whether anyprovisions in the document are, themselves, new orrevised WQS. Additionally, the State included paragraphs (a)-(g), which merely list the additional documents that are referenced in the Implementation Document itself. As set out more fully below, the EPA has determined that some provisions ofthe Implementation Document, specificallyidentified below, further define orrefine Florida's WQS, and therefore, those provisions constitute new orrevised WQS. Where the EPA has determined that a provision in the Implementation Document constitutes a new orrevised WQS, the EPA is acting under section 303(c) ofthe CWA to approve ordisapprove that part ofthe Implementation Document. The EPA found that the remaining provisions in the Implementation Document describe howthe state numeric nutrient standards will be implemented, along with the types ofdata and information, and the sufficiency or reliability ofthe data and information the FDEP needs for implementation decisions. Such provisions do not constitute new orrevised WQS under the CW A and the EPA is not acting on those parts ofthe Implementation Document in today's decision.

Theprimarychange in content between the September 2012 Nutrient Standards Implementation Document (considered bythe EPA as supporting documentation in its review ofpreviously adopted WQS) and the March 2013 version ofthe Implementation ofFlorida's Numeric Nutrient Standards (Implementation Document) adopted byreference is the incorporation ofa section to outline the information needed to distinguish whether a water is categorized as one ofthe paragraph (a) or (b) exclusions contained within the "stream" definition at subsection 62- 302.200(36), F.A.C. In addition, there were several other minorrevisions to the March 2013 document. Following protocol described in its "four-part test" for identifying new orrevised water quality standards (see footnote 1), the EPA identified specific text that addresses all ofthe four parts. Because the Implementation Document is now incorporated into Staterule, the entire document meets the first test ofbeing legallybinding. The EPA reviewed each provision against the remaining three parts (addressing designated uses, water quality criteria or antidegradation requirements; expressing or establishing a desired condition or level orprotection or mandating how such condition orprotection will be expressed or established in the future; and establishing
a newWQS orrevising and existing WQS). The EPA identifies provisions in the March 2013 Implementation Document that represent new orrevised WQS below. Ifnot described below, the EPA concluded the provision was not a new orrevised WQS. 2

2 Within the "Review ofthe "Surface Water Discharge Wastewater Permits" section, there are several descriptions ofhowWQBELs and other mechanisms related to permitting and implementationprogram decisions relate to the Hierarchy I interpretation approach. The EPA did not conclude such descriptions are new or revised water quality standards. However, the EPAcontinues to expect that FDEP will complete the necessary administrative WQS rulemaking activities (both ERC adoptions and Secretarial Orders), whether separately or concurrently with the otherprogrammatic activity for Hierarchy I site-specific interpretations before submittal to EPA for 303(c) review. Hierarchy 1 site-specific interpretations are not applicable as WQS for CWA purposes until approved by EPA.

2Review of"The HierarchicalApproach"Section
The sub-section entitled "Floral Evaluation for Determining Achievement ofNNC" is largely unchanged from the September 2012 version that constituted important supporting documentation. It includes re-statements ofrule language, descriptions ofwhyparticular approaches and thresholds were identified as protective, and the specific approaches and quantitative values that determine whether each floral metric is attained. Itis the latter category that comprises new orrevised WQS. Inparticular, there are specific "decisionkey" sections for each floral metric that summarize the thresholds and directions for interpreting floral imbalance. TheEPA concluded that the following bold text from the March 2013 Implementation Document constitutes new orrevised WQS:
RPSDecision Key

1. Were environmental conditions associated with the RPS samples rerresentative of the typical conditions ofthe system? (e.g., flow between lOth and 90t percentile of long term discharge, light penetration characteristic ofsystem, samplinglocation representative ofwaterbody segment, etc). la. Yes, proceed to couplet 2. lb. No. Collect additional RPS samples at representative locations and during representative conditions, and return to couplet 1.

2. Results oftwo temporally independentRPS samplings show that RPS rank 4-6 is 25% or less? 2a. Yes. Evidence that the waterbodyachieves thealgalmatcomponentof floral
measures (other components must still be evaluated). IfRPS rank4-6 results are between 20% to 25%, then algal species composition will also be evaluated (see algal species composition decision key). 2b. No, evidence that the nutrientstandardat 62-302.531(2)(c) isnotachieved. AlgalSpecies Composition Decision Key

1. Were environmental conditions associated with the RPS samples and algal taxonomic collections representative ofthe typical conditions ofthe system? (e.g., flow between lOth and 90th percentile oflong term discharge, lightpenetration characteristic ofsystem, samplinglocation representative ofwaterbody segment, etc.). la. No. Collect additional RPS samples and algal taxonomic composition samples at representative locations and during representative conditions, and return to couplet 1. 1b. IfYes, see couplet 2.

2. Results oftwo temporally independentRPS samplings show that RPS rank 4-6 is 20% or less? 2a. Yes. Evidence that the waterbody achieves thealgalspecies composition componentof floralmeasures (other components must still be evaluated). 2b. IfNo, see couplet 3.

33. Do dominant taxa3 ofalgal communityinclude taxa known to be nutrient enrichmentindicators? (see list above and references in Appendix). 3 a. Yes. Evidence that the nutrientstandardatRule 62-302.531(2)(c) is notachieved. 3b. No. This is evidence that thewaterbodyachieves thealgalspecies composition componentof floralmeasures (other components must still be evaluated).

TheDepartmentwill evaluatethose dominant species that individually constitute approximately 10% or more ofthe community.

Where the RPS 4-6 coverageis greater than 20%, an evaluation ofthe algal species composition (identifying the five most dominant taxa) is also conducted to provide additionalinformation whether there is no imbalance offlora. Changes in algal species composition (through an analysis ofautecological information) are also evaluated using the latest scientific references for algal species. TheDepartment maintains a list ofthe scientific references used in this evaluation.

For example, nutrient enriched Florida springs are typically characterized by an abundance ofone ormore ofthe following taxa: Lyngbya wollei, Oscillatoria sp., Aphanothece sp.,Phormidium sp., Vaucheria sp., Spirogyra sp., Cladophora sp., Rhizoclonium sp., Dichotomosiphon sp.,Hydrodiction sp.,Enteromorpha sp., and Chaetomorpha sp. Other algal indicators ofnutrient enrichmentfrom the literature include: Anabaena sp., Euglena sp., Chlamydomonas sp., Scenedesmus sp., Chlorella sp., Rhopalodia spp., Gomphonema spp., Cosmarium sp.,Nitzschia spp.,Navicula spp., and Stigeoclonium sp. Dominance ofsuch taxa at a stream where the RPS rank 4-6 >20% would be evidence that the NNC is not achieved.

As another example ofthis approach, the Everglades TP criterion was largely based on observed shifts in the dominant algal taxa from those characteristic ofreference conditions (e.g., Scytonema sp., Schizothrix sp.) to taxa indicative ofnutrient enriched conditions (e.g., Gomphonemaparvulum, Navicula minima,Nitzschia amphibia,Nitzschiapalea, Oscillatoria sp., Rhopalodiagibba, Scenedesmus sp.,Anabaena sp., Cosmarium sp., andLyngbya wollei).
L VSDecision Key

1. Were environmental conditions associated with theLVS samples representative of the typical conditions ofthe system (e.g., flow between lOth and 90th percentile of long term discharge, lightpenetration characteristic ofsystem, samplinglocation representative ofwaterbody segment, etc.). la. No. Collect additional LVS samples at representative locations and during representative conditions, and return to couplet 1. lb. Yes, proceed to couplet 2.

42. Given that invasive exotic species can occur even in the absence ofnutrient impacts and that aquatic plant management practices can also affect LVS results, is there evidence the LVS results can be linked to anthropogenic nutrient inputs? 2a. Yes, proceed to couplet 3. 2b. No. TheLVS results are inconclusive and other lines offloral evidence should be used.

3. Results oftwo temporallyindependentLVS samplings show that C ofC score is :::, 2.5 and the frequency ofoccurrence ofFLEPPC exotic taxa**is~** 25°/o? 3a. Yes. Evidence that the waterbodyachieves thenuisancemacrophytegrowth componentof floral measures (other components must still be evaluated). 3b. No. Evidence that the nutrientstandardat 62-302.531(2)(c) is notachieved.

Ifthere is <2 m2 ofvascular plant coverage present in a 100 m stream reach, there are no floral imbalances attributable to aquatic plants. Chlorophyll/AlgalBloom Decision Key

1. Were environmental conditions associated with the chlorophyll samples representative oftypical conditionsfor the system? (e.g., flow between lOth and 90th percentile oflong term discharge, light penetration characteristic ofsystem, sampling location representative ofwaterbody segment, etc.). 1a. No. Collect additional chlorophyll samples at representative locations and during representative conditions, and return to couplet 1. 1b. IfYes, see couplet 2.

2. Annual geometric mean chlorophyll**~** 3.2 ug!L? 2a. Yes. Evidence that the waterbody achieves the chlorophylla/algalbloom componentof floralmeasures (other components must still be evaluated). 2b. IfNo, see couplet 3.

3. Annual geometric mean chlorophyll>20 ug!L more than oncein a three yearperiod? 3a. Yes. Thenarrativenutrientstandardat 62-302.531(2)(c) is notachieved. 3b. No, annual geometric mean chlorophyllis between 3.2 and 20 ug!L, see couplet 

### 4.

4. After considering site specific factors that affect chlorophyll concentrations, such as system morphology, water residence time, or consistency with other functionally similar reference sites, can it be documented that the chlorophyll

### a values represent
a healthy well balanced phytoplankton community? 4a. Yes. Evidencethat the waterbodyachieves the chlorophylla/algalbloom componentof floralmeasures. 4b. No. Evidencethat the nutrientstandardat 62-302.531(2)(c) is notachieved. 4c. Inconclusive because ofinsufficient contemporaneous data from other functionally similar reference sites. Waterbody will be placed on the Study List ifeither ofthe TN or TP thresholds were exceeded.

5Ifall floral measures are achieved, a stream meets the floral component ofa healthy, well balanced aquatic system, because it is within the minimally disturbed Benchmark stream condition. However, ifany one [of] these floral measures indicates an imbalance, then the stream does not attain the NNC.

As stated above, this material has been thoroughly reviewed as supporting documentation for the EPAreview and approval ofpreviously adopted WQS. Forthe samereasons outlined on pages 32-43 ofthe EPA'sNovember 30, 2012, decision document (see Attachment A), these revisions
are consistent with the CW A section 303(c) and 40 CFRPart 131 and are approved bythe EPA pursuant to section 303(c) ofthe Act. The one part ofthe floral metric description that substantively changed from the earlier version that the EPA reviewed in support ofits November 30, 2013, action is with respect to the algal species composition evaluation. In the September 2012 version, there is a specific list ofreferences provided in an appendix. In the March 2013 version under review, this appendix is replaced with a Department maintained list of"latest scientific references." The EPA finds that it is more appropriate to refer to "latest scientific references" in a document adopted as rule byreference to ensure the latest science can be utilized.

Overview o[the "Basic Information Needsfor DistinguishingFlowing Waters Under 62- 302.200(36), F.A.C. "Section

As outlined on page 2 ofthe EPA's November 30, 2012 decision document, it is the EPA's "understanding that FDEP's numeric water quality criteria apply to all Class I and/or III flowing waters (except South Florida flowing waters) unless and until FDEP makes an affirmative determination that a particular waterbodymeets one ofthe exclusions under F.A.C. 62- 302.200(36), i.e., it is a tidally influenced segment, non-perennial stream, or an actively maintained conveyance, such as a canal orditch." Pages 49-57 ofthe Implementation Document describe in more detail how the State expects such decisions to be made.

It is the EPA's view that any waters excluded byFlorida's stream definition that are Class I and/or III still merit the protection afforded bynutrient criteriabecause these waters mayprovide important habitat for a diverse range ofaquatic plants and animals and maybe vulnerable to the effects ofnutrient pollution. These waters will continue to be protectedbythe existing narrative nutrient criteria.

6Diagram Depicting Applicable Criteria for Streams

Class I and III Streams: Class I andIII Streams: Nutrient Numeric Criteria NutrientNarrative Applies Applies [62-302.531(2)(c)] [62.302.530(47)]

Is a streamper no definition at 62-

302.200(36)

yes Factual demonstration completed perImplementation Document: Waterbody qualifies as excluded from criteria at 62-302.531(2)(c)

OnlyNutcient Narrative 

# D

Both Nutrient Numeric and

Narrative Criteria Apply Applies [62.302.530(47)]

In reviewing the provisions contained within pages 49-57 ofthe Implementation Document, the EPA concluded that some provisions serve as new orrevised WQS because they eitherprovide additional exclusion specificity orrelate to the required factual demonstration ofexcluded waters.
TheEPA understands that, in some cases, there maybe questions regarding the appropriate designated use for some ofthese waters (e.g., hydrologically modified waters/canals), and FDEP has developed a mechanism for addressing those waters through the Class III-Limited Use category. Itis the EPA's expectation that for waters falling into this categoryFDEP would conduct a use attainability analysis (UAA) and adopt and submit to the EPA a revised designated
use ofClass III-Limited for such water(s). The EPA approval is necessarybefore such a change wouldbe effective for CWApurposes. The conclusion ofthe EPA's review ofthe stream definition "exclusions" is that FDEP is not establishing a process for changing the designated use(s) through the adoption ofthe Implementation Document and its subsequent implementation, but rather demonstrating where the stream numeric nutrient criteria apply in conjunction with the narrative or where the narrative alone applies for a specific waterbody. The remainder ofthis section ofthe decision document addresses the EPA's review ofthose provisions determined to be new or revised WQS relating to modifying the existing stream definition and the process by which such demonstrations are made.

"Basic Information Needs for Distinguishing Flowing Waters under 62-302.200(36)" Section

In implementing water quality standards and evaluating whether a particular waterbody meets the provisions of62-302.200(36)(a) or (b) F.A.C., the Department

7will provide public notice and request information relevant to the application of water quality standards, including the purpose ofthe waterbody such as flood protection, stormwater management, irrigation, water supply, navigation, boat
access to an adjacent waterbody, orfrequent recreational use relevant to 62- 302.200(36)(b)l. F.A.C. TheDepartmentwill consider all relevant information in implementingwater quality standards and maintain the administrative records of such decisions, which are available to the public.

Because the purpose ofthis provision is to implement the provisions ofthe stream definition at 62-302.200(36), the State's provision makes it clear that notice ofthe request for information relating to the application ofWQS, specifically the stream numeric nutrient criteria at 62- 302.531(2)(c), are subject to a public notice and request for data availability. This procedure, and the fact that the Department will maintain the administrative records ofthe decisions and make those available to the public, allows all affected parties to participate, enables the Department to obtain relevant information from all parties, and provides transparency regarding the determination ofapplicable criteria for the given waterbody.

The procedures laid out in this provision are consistent with 40 CFRPart 131 and the CW A and
are approved bythe EPA pursuant to section 303(c) ofthe Act. As stated previously, these determinations are for those waters that still maintain the Class I or III designated use and as such these determinations do not have to bepresented to the EPA for review under Section 303(c) ofthe CW A.

"General Information" Section

Until a Class I orIII stream segmentis identified as meeting the provisions in Rule 62-302.200(36)(a) or (b), F.A.C., the criteria in Rule 62-302.531(2)(c), F.A.C., will apply. Interested parties wishing to distinguish the characteristics ofa waterbody with respect to provisions in Rule 62-302.200(36), F.A.C., mayprovide the Departmentwith the applicableinformation set forth in the stream definition.

A clear delineation ofthe geographic boundaries ofthe segment in question is necessary so that the Department knows exactly where applicable criteria apply.

For waters that meet the definition of62-302.200(36)(a) or (b) F.A.C., the Department shall follow the Impaired Waters Rule at 62-303 F.A.C.

TheEPA has determined that the text excerpted above, within the "General Information" section,
are new WQS, because these provisions provide general descriptions ofhow the definition of stream in Rule 62-302.200(36), F.A.C. will be implemented. The clarification that the criteria in Rule 62-302.531(2)(c), F.A.C. will apply until a stream is identified as meeting the provision of Rule 62-302.200(36)(a) or (b), F.A.C. ensures that numeric nutrient criteria necessary for many types offlowing waters will be in place until such time as it is affirmatively determined byFDEP that an exclusion applies. The requirement to clearly delineate the geographic boundaries ofthe segment in question allows all interested parties to know where the applicable criteria apply. The final provision regarding the application ofthe Impaired Waters Rule clarifies how the waters

8will be assessed for CWA Section 303(d) purposes. Theseprovisions clarifythe implementation ofthe stream definition.

These provisions provideprotection ofstream designated uses byensuring coverage by appropriate criteria, clearly identifying the geographic scope ofthe coverage and clarifying the application ofthe Impaired Waters Rule. The EPA finds that the provisions identified above as new WQS are consistent with CWA section 303(c) and 40 CFRPart 131 and are approved by the EPA pursuant to section 303(c) ofthe Act.

"Non-Perennial Water Segments" Section

To identifywhether a segment is a non-perennial water segment, the biological information identified below will be evaluated by the Department. Other methods that providethis demonstration with similar accuracy will be accepted by the Departmentifthey are a means to predictingthe resulting biological conditions discussed below.
[T]hepresence ofcertain facultative or facultative-wetland herbaceous species within the stream bed can be a valid indication that the stream is non-perennial, as these taxa may require moist or saturated conditions to germinate and grow, but would not tolerate the inundation ofa perenniallyflowing stream. Examples of these taxa include, grasses such as Chasmanthium latifolium and Tripsacum dactyloides, sedges such as Cyperus esculentus and Cyperus retrorsus, forbs such as Cuphea cartagenensis,Bidenspilosa, andSphagneticola trilobata, and ferns such as Woodwardia virginica and Thelypteris spp. (see complete lists ofobligate wetland, facultative wetland and facultative taxa in Chapter 62-340, F.A.C.). [The lists of obligate wetland,facultative wetlandand facultative taxa in Chapter 62-340 are considerednew or revised WQS in their entirety although they are not repeatedhere}. During a habitat assessment orLinear Vegetation Survey conducted during a site visit, the presence offacultative and facultative wetland herbaceous vascular plant taxa in the channel bed would be an indicator that the system is non-perennial.

The Department has compiled lists oftaxa to assist with distinguishing perennial from non-perennial streams/wetland systems (Tables 8 and 9). [Tables 8 and9 are considerednew or revised WQS in their entirety although they are not repeated here}.

The presence oflong-lived aquatic species (benthic macroinvertebrates that require water for their entirelife cycle) is another reliable method to determine ifa stream is more characterized by perennial flow or wetland/terrestrial conditions. A list of long-lived taxa is included in DEP SOP SCI 2100. [The list of long-lived taxa included in DEPSOP SCI2100 are considerednew or revised WQS in their entirety although they
are not repeatedhere}. For purposes ofestablishing segments that are excluded from the stream definition, the Department shall evaluate the taxa that occur in the segment, as well as thevascular plant information described above.

9The EPAhas determined that the provisions excerpted above, within the "Non-Perennial Waters Segments" section, are new WQS because theydescribe the demonstration requirements and information needed to conclude the waterbody falls within the paragraph (a) exclusion ofthe stream definition at 62-302.200(36). Theremainder ofthis section provides discussion to explain the rationale behind the approach to rely on the plant and aquatic species that are present or absent from perennial and non-perennial waters to support the factual demonstration that a given waterbody qualifies as a paragraph (a) exclusion. The allowance for other methods "with similar accuracy that will be accepted bythe Department" provides an additional option for supporting the factual demonstration.

The EPAhas determined that the lists oftaxaprovided in Chapter 62-340, F.A.C., DEP SOP SCI 2100, and Tables 8 and 9 ofthe Implementation Document provide appropriate indicators for determining a water segment is non-perennial. The lists are extensive and are based on sound science. Allowing other methods with similar accuracy in making a determination provides appropriate flexibility while ensuring (with the requirement for similar accuracy and Department acceptance) scientific rigor in the demonstration.

Forthese reasons, the EPA finds that the provisions identified above within the "Non-Perennial Waters Segments" section are consistent with the requirements of40 CFRPart 131 ofthe CW A and is approved bythe EPA pursuant to section 303(c) ofthe Act. "Tidally Influenced Segments" Section Tidally influenced segments are those that fluctuate (daily, weekly, or seasonally) between predominantly marine and predominantly fresh waters during typical climactic and hydrologic conditions. Typical hydrologic conditions exclude periods ofhigh rainfall or drought that would create flow conditions well outside ofaverage annual flow conditions.

The EPAhas determined that the provisions excerpted above within the "Tidally Influenced Segments" section are new orrevised WQS because theyprovide additional details on how to make a determination that a segment is tidally influenced. The EPA concludes that these are accurate means ofdetermining "tidal influence" and thus for making the distinction ofwhere numeric nutrient criteria apply.

Forthis reason, the EPA finds that the provision identified above as a new WQS is consistent with CWA section 303(c) and 40 CFRPart 131 and is approved bythe EPA pursuant to section 303(c) ofthe Act.

"WaterManagement Conveyances" Section (only the bolded text below is considered to be new
or revised)

The following information will be used in identifying.segments meeting the requirements in Rule 62-302.200(36)(b):

10Delineation Onlythose sections that meet the requirements in Rule 62-302.200(36)(b), F.A.C., are eligible to retain the narrative nutrient criteria. A map ofthe applicable areas for review must clearly delineate the upstream and downstream extent ofthe artificial conveyance. PrimaryWater Management Purpose Information must show that the current purpose ofthe man-made or physically altered conveyance is primarilywater management such as flood protection, stormwater management, irrigation, or water supply. Relevant documentation can include photographic evidence, funding authorizations, operational protocols, local agreements, permits, memoranda ofunderstanding, contracts, or other records that indicate how the conveyance is operated and maintained, and must verify that the design or maintenance ofthe conveyance allows the conveyance to currently function in a manner consistent with the primary water management purpose. The phrase "primarily used for water management purposes" in Rule 62- 302.200(36)(b)l., F.A.C., does not include usefor navigation or boat access to an adjacent waterbody, or frequent recreational activities. The purpose ofthe design ofthe conveyance in conjunction with the purpose ofany subsequent alterations or maintenanceis evaluated to help differentiate whether its primaryfunction is navigation, boat access to adjacent waterbodies, orfrequent recreational activities;
versus flood protection, stormwater management, irrigation, or water supply. If available information provided by the public, in response to public notice and ·request for information, or otherwise known by the Department, demonstrates that the segmentis commonly used for navigation, boat access, or other frequent recreational activities such as swimming or boating, then the primary purpose is not water management and the departmentwill apply the nutrient standards in Rule 62-302.531(2) F.A.C. Freshwater finger canals dug during the construction of neighborhoods designed to create homes with boat access to waterbodies are an example ofa navigation or access as a primary purpose. Physical Alteration that Limits Habitat The definition at Rule 62-302.200(36)(b)2., F.A.C., outlines that the conveyance must have marginal orpoor stream habitat orhabitat components that limit biological function because the conveyance has cross sections that are predominantlytrapezoidal, has armored banks, or is maintained primarily for water conveyance. Photographic evidence ofthese limitations can demonstrate the habitat condition ofthe conveyance. Also, Standard Operating Procedures for conducting streamHabitatAssessments have been adopted by the Departmentin DEP SOP FT 3000. In orderto qualify under Rule 62-302.200(36)(b)2., F.A.C., the overall Habitat Assessment score must score either marginal orpoor.
The Habitat Assessment procedures include long-established criteria that can be used to demonstratephysical alterations in a system, and can provide information verifying that ongoing maintenance activities are associated with perpetuating those physical alterations. The lack ofsubstrate and degree ofartificial channelization are part ofthe

11definition and components ofthe Habitat Assessment scoring system, and a Habitat Assessment score must be completedby an individual with demonstrated proficiency (as per DEP SOP 3000) to indicate that the definition related to the segment's modification is met. Ifthere are different segments within the conveyancethat exhibit different features, a HabitatAssessment is needed for each segment. The Department will conduct a Habitat Assessment ifone was not previously conducted.

To ensure adequate water volume delivery, routine maintenance activities associated with conveyances used for water management purposes often involve removal ofaquatic substrate (e.g., woodydebris, aquatic and wetland vegetation), dredging ofsediments, and/or removal ofriparian trees. Ifthe SubstrateDiversity and Availability and Artificial Channelization metrics in the HabitatAssessment score in the Poor category, then one can concludethat the conveyance is predominantly altered and is being maintained in a manner to servethe primary purposefor water management. The overall habitat assessment may not rank as Poordue to other factors, but a primary factor being considered in the definition is the alteration and the maintenance ofthe conveyance. Ifthe Substrate Diversity and Availability orArtificial Channelization
scores are currently in the marginal range due to lack ofmaintenance ofthe conveyance at the time the assessment was completed, the Department will evaluate whether there is a maintenance program with a schedule to demonstrate that the conveyance is still being maintained for its primary water management purpose. If the overall HabitatAssessment score is otherthan poor or marginal, the conveyances would not meet the definition.

Thebolded text within the "WaterManagement Conveyances" section above establishes the demonstration requirements to conclude the waterbody falls within the paragraph (b) exclusion ofthe stream definition at 62-302.200(36). The new orrevised WQS within this section provide further detail regarding the delineation ofparagraph (b) exclusions, as well as specific documentation and demonstrations that are used to support the factual demonstration that a given waterbody qualifies as a paragraph (b) exclusion.

Therequirement to clearly delineate the geographic boundaries ofthe segment in question allows all interested parties to know where the applicable criteria apply. These provisions also require information demonstrating that the current purpose ofthe segment is primarilywater management and does not include navigation, boat access or frequent recreational purposes. Such requirements appropriatelyprotect waters with recreational or otheruses. Theprovision regarding information from the public on uses ofthe water segment allows interested parties to provide input into the decision-making process.
These provisions utilize a Habitat Assessment score in determining whether the segment is a conveyance. This tool provides a measure ofthe extent ofphysical alteration which is a critical factor in the determination ofconveyance status. The provisions that the EPA are acting on as WQS provide that the overall Habitat Assessment score be either marginal orpoor. This requirement ensures that higher quality waters are protected with appropriate numeric nutrient criteria. Therequirements regarding the Substrate Diversity and Availability and the Artificial Channelizations metrics ofthe assessment ensure that only waters that are predominantly altered

12and maintained for the primarypurpose ofwater management are included in the category of conveyances.
As outlined in an earlier provision, FDEP "will providepublic notice and request information relevant to the application ofwater quality standards." Because the conclusion that a waterbody is a paragraph (b) exclusion has the effect ofremoving application ofthe stream numeric nutrient criteria, the incorporation ofa public process is important to ensure that the resulting determinationreflects all ofthe available information. Although not a new or revised WQS, the EPA would like to speakto the sentence "Onlythose sections that meet the requirements in Rule 62-302.200(36)(b), F.A.C., are eligible to retain the narrative nutrient criteria." The narrative nutrient criteriaremain in place for all Florida waters. The EPA interprets this sentence to mean that only those water segments that meet the requirements in Rule 62-302.200(36)(b), F.A.C., are eligible to be exempt from the numeric nutrient criteria in Rule 62-302.531(2), F.A.C.

For the reasons discussed above, the EPA finds that the demonstration requirements specific to the bolded text within the "WaterManagement Conveyances" section above are consistent with the requirements of40 CFRPart 131 and the CW A and are approved bythe EPApursuant to section 303(c) ofthe Act.



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