Federal Register: January 26, 2010 (Volume 75, Number 16)
DOCID: fr26ja10-18 FR Doc 2010-1220
ENVIRONMENTAL PROTECTION AGENCY
Veterans Affairs Department
CFR Citation: 40 CFR Part 131
RIN ID: RIN 2040-AF11
EPA ID: [EPA-HQ-OW-2009-0596; FRL-9105-1]
NOTICE: Part III
DOCID: fr26ja10-18
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY:
Water Quality Standards for the State of Florida's Lakes and Flowing Waters
DATES: Comments must be received on or before March 29, 2010.
DOCUMENT SUMMARY:
The Environmental Protection Agency (EPA) is proposing numeric nutrient water quality criteria to protect aquatic life in lakes and flowing waters, including canals, within the State of Florida and proposing regulations to establish a framework for Florida to develop ``restoration standards'' for impaired waters. On January 14, 2009, EPA made a determination under section 303(c)(4)(B) of the Clean Water Act (``CWA'' or ``the Act'') that numeric nutrient water quality criteria for lakes and flowing waters and for estuaries and coastal waters are necessary for the State of Florida to meet the requirements of CWA section 303(c). Section 303(c)(4) of the CWA requires the Administrator to promptly prepare and publish proposed regulations setting forth new or revised water quality standards (``WQS'' or ``standards'') when the Administrator, or an authorized delegate of the Administrator, determines that such new or revised WQS are necessary to meet requirements of the Act. This proposed rule fulfills EPA's obligation under section 303(c)(4) of the CWA to promptly propose criteria for Florida's lakes and flowing waters.
SUMMARY:
Environmental Protection Agency
SUPPLEMENTAL INFORMATION
This supplementary information section is organized as follows:
Table of Contents
I. General Information
A. Executive Summary
B. What Entities May Be Affected by This Rule?
C. What Should I Consider as I Prepare My Comments for EPA?
D. How Can I Get Copies of This Document and Other Related Information?
II. Background
A. Nutrient Pollution
B. Statutory and Regulatory Background
C. Water Quality Criteria
D. Agency Determination Regarding Florida
III. Proposed Numeric Nutrient Criteria for the State of Florida's Lakes and Flowing Waters
A. General Information
B. Proposed Numeric Nutrient Criteria for the State of Florida's Lakes
C. Proposed Numeric Nutrient Criteria for the State of Florida's Rivers and Streams
[[Page 4175]]
D. Proposed Numeric Nutrient Criteria for the State of Florida's Springs and Clear Streams
E. Proposed Numeric Nutrient Criteria for South Florida Canals
F. Comparison Between EPA's and Florida DEP's Proposed Numeric Nutrient Criteria for Florida's Lakes and Flowing Waters
G. Applicability of Criteria When Final
IV. Under What Conditions Will Federal Standards Be Either Not Finalized or Withdrawn?
V. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Variances
C. SiteSpecific Criteria
D. Compliance Schedules
VI. Proposed Restoration Water Quality Standards (WQS) Provision VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use)
I. National Technology Transfer Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and LowIncome Populations)
I. General Information
A. Executive Summary
Excess loadings of nitrogen and phosphorus, commonly referred to as nutrient pollution, are one of the most prevalent causes of water quality impairment in the United States. Anthropogenic nitrogen and phosphorus overenrichment in many of the Nation's waters is a widespread, persistent, and growing problem. Nutrient pollution can significantly impact aquatic life and longterm ecosystem health, diversity, and balance. More specifically, high nitrogen and phosphorus loadings, or nutrient pollution, result in harmful algal blooms (HABs), reduced spawning grounds and nursery habitats, fish kills, and oxygen starved hypoxic or ``dead'' zones. Public health concerns related to nutrient pollution include impaired drinking water sources, increased exposure to toxic microbes such as cyanobacteria, and possible formation of disinfection byproducts in drinking water, some of which have been associated with serious human illnesses such as bladder cancer. Nutrient problems can exhibit themselves locally or much further downstream leading to degraded lakes, reservoirs, and estuaries, and to hypoxic zones where fish and aquatic life can no longer survive.
In the State of Florida, nutrient pollution has contributed to
severe water quality degradation. Based upon waters assessed and
reported in the 2008 Integrated Water Quality Assessment for Florida,
approximately 1,000 miles of rivers and streams, 350,000 acres of
lakes, and 900 square miles of estuaries are known to be impaired for
nutrients by the State.\1\ The actual number of stream miles, lake
acres, and estuarine square miles of waters impaired for nutrients in
Florida may be higher, as many waters currently are classified as ``unassessed.''
\1\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update, p. 67.
The challenge of nutrient pollution has been a top priority for Florida's Department of Environmental Protection (FDEP). Over the past decade or more, FDEP has spent over 20 million dollars collecting and analyzing data on the relationship between phosphorus, nitrogen, and nitritenitrate concentrations and the biological health of aquatic systems. Moreover, Florida is one of the few states that has in place a comprehensive framework of accountability that applies to both point and nonpoint sources and provides the enforceable authority to address nutrient reductions in impaired waters based upon the establishment of sitespecific total maximum daily loads (TMDLs).
Despite FDEP's intensive efforts to diagnose and control nutrient
pollution, substantial water quality degradation from nutrient over
enrichment remains a significant problem. On January 14, 2009, EPA
determined under CWA section 303(c)(4)(B) that new or revised WQS in
the form of numeric nutrient water quality criteria are necessary to
meet the requirements of the CWA in the State of Florida. The Agency
considered (1) the State's documented unique and threatened ecosystems,
(2) the high number of impaired waters due to existing nutrient
pollution, and (3) the challenge associated with growing nutrient
pollution resulting from expanding urbanization, continued agricultural
development, and a significantly increasing population that is expected
to grow 75% between 2000 to 2030.\2\ EPA also reviewed the State's
regulatory nutrient accountability system, which represents an
impressive synthesis of technologybased standards, point source
control authority, and authority to establish enforceable controls for
nonpoint source activities. However, the significant challenge faced by
the water quality components of this system is its dependence upon an
approach involving resourceintensive and timeconsuming sitespecific
data collection and analysis to interpret nonnumeric narrative
nutrient criteria. EPA determined that Florida's reliance on a caseby
case interpretation of its narrative nutrient criterion in implementing
an otherwise comprehensive water quality framework of enforceable
accountability was insufficient to ensure protection of applicable
designated uses. As part of the Agency's determination, EPA indicated
that it expected to propose numeric nutrient criteria for lakes and
flowing waters within 12 months, and for estuarine and coastal waters within 24 months, of the January 14, 2009 determination.
\2\ http://www.census.gov/population/projections/ SummaryTabA1.pdf.
On August 19, 2009, EPA entered into a phased Consent Decree with Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper, committing to sign a proposed rule setting forth numeric nutrient criteria for lakes and flowing waters in Florida by January 14, 2010, and for Florida's estuarine and coastal waters by January 14, 2011, unless Florida submits and EPA approves State numeric nutrient criteria before EPA's proposal. The phased Consent Decree also provides that EPA issue a final rule by October 15, 2010 for lakes and flowing water, and by October 15, 2011 for estuarine and coastal waters, unless Florida submits and EPA approves State numeric nutrient criteria before a final EPA action.
Accordingly, this proposal is part of a phased rulemaking process
in which EPA will propose and take final action in 2010 on numeric
nutrient criteria for lakes and flowing waters and for estuarine and
coastal waters in 2011. The two phases of this rulemaking are linked
because nutrient pollution in Florida's rivers and streams affects not
only instream aquatic conditions but also downstream estuarine and
coastal waters ecosystem conditions. The Agency could have waited to
propose estuarine and coastal downstream protection criteria values for
rivers and streams as part of the second phase of this rulemaking
process. However, the substantial data, peerreviewed methodologies, and extensive scientific
[[Page 4176]]
analyses available to and conducted by the Agency to date indicate that
numeric nutrient water quality criteria for estuarine and coastal
waters, when proposed and finalized in 2011, may result in the need for
more stringent rivers and streams criteria to ensure protection of
downstream water quality, particularly for the nitrogen component of
nutrient pollution. Therefore, considering the numerous requests for
the Agency to share its analysis and scientific and technical
conclusions at the earliest possible opportunity to allow for full
review and comment, EPA is including downstream protection values for
total nitrogen (TN) as proposed criteria for rivers and streams to
protect the State's estuaries and coastal waters in this notice.
As described in more detail below and in the technical support document accompanying this notice, these proposed nitrogen downstream protection values are based on substantial data, thorough scientific analysis, and extensive technical evaluation. However, EPA recognizes that additional data and analysis may be available, including data for particular estuaries, to help inform what numeric nutrient criteria are necessary to protect Florida's waters, including downstream lakes and estuaries. EPA also recognizes that substantial sitespecific work has been completed for a number of these estuaries. This notice and the proposed downstream protection values are not intended to address or be interpreted as calling into question the utility and protectiveness of these sitespecific analyses. Rather, the proposed values represent the output of a systematic and scientific approach that was developed to be generally applicable to all flowing waters in Florida that terminate in estuaries for the purpose of ensuring the protection of downstream estuaries. EPA is interested in obtaining feedback at this time on this systematic and scientific approach. EPA is also interested in feedback regarding sitespecific analyses for particular estuaries that should be used instead of this general approach for establishing final values. The Agency further recognizes that the proposed values in this notice will need to be considered in the context of the Agency's numeric nutrient criteria for estuarine and coastal waters scheduled for proposal in January of 2011.
Regarding the criteria for flowing waters for protection of downstream lakes and estuaries, at this time, EPA intends to take final action on the criteria for protection of downstream lakes as part of the first phase of this rulemaking (by October 15, 2010) and to finalize downstream protection values in flowing waters as part of the second phase of this rulemaking process (by October 15, 2011) in coordination with the proposal and finalization of numeric nutrient criteria for estuarine and coastal waters in 2011. However, if comments, data and analyses submitted as a result of this proposal support finalizing these values sooner, by October 2010, EPA may choose to proceed in this manner. To facilitate this process, EPA requests comments and welcomes thorough evaluation on the technical and scientific basis of these proposed downstream protection values, as well as information on estuaries where sitespecific analyses should be used, as part of the broader comment and evaluation process that this proposal initiates.
In accordance with the terms of EPA's January 14, 2009 determination and the Consent Decree, EPA is proposing numeric nutrient criteria for Florida's lakes and flowing waters which include the following four water body types: Lakes, streams, springs and clear streams, and canals in south Florida. In developing this proposal, EPA worked closely with FDEP staff to review and analyze the State's extensive dataset of nutrientrelated measurements as well as its analysis of stressorresponse relationships and benchmark or modified reference conditions. EPA also conducted further analyses and modeling, in addition to requesting an independent external peer review of the core methodologies and approaches that support this proposal.
For lakes, EPA is proposing a classification scheme using color and alkalinity based upon substantial data that show that lake color and alkalinity play an important role in the degree to which TN and total phosphorus (TP) concentrations result in a biological response such as elevated chlorophyll a levels. EPA found that correlations between nutrients and biological response parameters in the different types of lakes in Florida were sufficiently robust, combined with additional lines of evidence, to support stressorresponse criteria development for Florida's lakes. The Agency is also proposing an accompanying supplementary analytical approach that the State can use to adjust TN and TP criteria for a particular lake within a certain range where sufficient data on longterm ambient TN and TP levels are available to demonstrate that protective chlorophyll a criteria for a specific lake will still be maintained and attainment of the designated use will be assured. This information is presented in more detail in Section III.B below.
Regarding numeric nutrient criteria for streams and rivers, EPA considered the extensive work of FDEP to analyze the relationship between TN and TP levels and biological response in streams and rivers. EPA found that relationships between nutrients and biological response parameters in rivers and streams were affected by many factors that made derivation of a quantitative relationship between chlorophyll a levels and nutrients in streams and rivers difficult to establish in the same manner as EPA did for lakes (i.e., stressorresponse relationship). EPA considered an alternative methodology that evaluated a combination of biological information and data on the distribution of nutrients in a substantial number of healthy stream systems. Based upon a technical evaluation of the significant available data on Florida streams and related scientific analysis, the Agency concluded that reliance on a statistical distribution methodology was a stronger and a more sound approach for deriving TN and TP criteria in streams and rivers. This information is presented in more detail in Section III.C below.
In developing these proposed numeric nutrient criteria for rivers and streams, EPA also evaluated their effectiveness for assuring the protection of downstream lake and estuary designated uses pursuant to the provisions of 40 CFR 130.10(b), which requires that WQS must provide for the attainment and maintenance of the WQS of downstream waters. For rivers and streams in Florida, EPA must ensure, to the extent that available science allows, that its nutrient criteria take into account the impact of nearfield nutrient loads on aquatic life in downstream lakes and estuaries. EPA currently has evaluated the protectiveness of its rivers and streams TP criteria for lake protection and also the protectiveness of its rivers and streams TN criteria for 16 out of 26 of Florida's downstream estuaries using scientifically sound approaches for both estimating protective loads and deriving concentrationbased upstream values. Of the ten downstream estuaries not completely evaluated to date, seven are in south Florida and receive TN loads from highly managed canals and waterways and three are in low lying areas of central Florida.
As noted above, EPA used best available science and data related to
downstream waters and found that there are cases where the nutrient
criteria EPA is proposing to protect instream aquatic life may not be
stringent enough to ensure protection of aquatic life in certain
downstream lakes and estuaries. Accordingly, EPA is also proposing an [[Page 4177]]
equation that would be used to adjust stream and river TP criteria to
protect downstream lakes and a different methodology to adjust TN
criteria for streams and rivers to ensure protection of downstream
estuaries. These approaches as reflected in these proposed regulations
and the revised criteria that would result from adjusting TN criteria
for streams and rivers to ensure protection of downstream estuaries,
based on certain assumptions, are detailed in Section III.C(6)(b)
below. The Agency specifically requests comment on the available
information, analysis, and modeling used to support the approaches EPA
is proposing for addressing downstream impacts of TN and TP. EPA also
invites additional stakeholder comment, data, and analysis on
alternative technicallybased approaches that would support the
development of numeric nutrient WQS, or some other scientifically
defensible approach, for protection of downstream waters. To the degree
that substantial data and analyses are submitted that support a
significant revision to downstream protection values for TN outlined in
Section III.C(6)(b) below, EPA would intend to issue a supplemental
Federal Register Notice of Data Availability (NODA) to present the
additional data and supplemental analyses and solicit further comment
and input. EPA anticipates obtaining the necessary data and information
to compute downstream protection values for TP loads for many estuarine
water bodies in Florida in 2010 and will also make this additional
information available by issuing a supplemental Federal Register NODA.
Regarding numeric nutrient criteria for springs and clear streams, EPA is proposing a nitratenitrite criterion for springs and clear streams based on experimental laboratory data and field evaluations that document the response of nuisance algae and periphyton to nitrate nitrite concentrations. This criterion is explained in more detail in Section III.D below.
For canals in south Florida, EPA is proposing a statistical distribution approach similar to its approach for rivers and streams, and based on sites meeting designated uses with respect to nutrients identified in four canal regions to best represent the necessary criteria to protect these highly managed water bodies. This approach is presented in more detail in Section III.E below. The Agency has also considered several alternative approaches to developing numeric nutrient criteria for canals and these are described, as well, for public comment and response.
Stakeholders have expressed concerns that numeric nutrient criteria must be scientifically sound. Under the Clean Water Act and EPA's implementing regulations, numeric nutrient standards must protect the designated use of a water (as well as ensure protection of downstream uses) 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 that these proposed criteria clearly meet the regulatory standards of protection and that they are clearly based on a sound scientific rationale.
Separate from and in addition to proposing numeric nutrient criteria, EPA is also proposing a new WQS regulatory tool for Florida, referred to as ``restoration WQS'' for impaired waters. This tool will enable Florida to set incremental water quality targets (uses and criteria) for specific pollutant parameters while at the same time retaining protective criteria for all other parameters to meet the full aquatic life use. The goal is to provide a challenging but realistic incremental framework in which to establish appropriate control measures. This provision will allow Florida to retain full aquatic life protection (uses and criteria) for its water bodies while establishing a transparent phased WQS process that would result in planned implementation of enforceable measures and requirements to improve water quality over a specified time period to ultimately meet the long term designated aquatic life use. The phased numeric standards would be included in Florida's water quality regulations during the restoration period. This proposed regulatory tool is discussed in more detail in Section VI below.
Finally, EPA is including in this notice a proposed approach for deriving Federal sitespecific alternative criteria (SSAC) based upon State submissions of scientifically defensible recalculations that meet the requirements of CWA section 303(c). TMDL targets submitted to EPA by the State for consideration as new or revised WQS could be reviewed under this SSAC process. This proposed approach is discussed in more detail in Section V.C below.
Overall, EPA is soliciting comments and data regarding EPA's proposed criteria for lakes and flowing waters, the derivation of these criteria, the protectiveness of the streams and rivers criteria for downstream waters, and all associated alternative options and methodologies discussed in this proposed rulemaking.
B. What Entities May Be Affected by This Rule?
Citizens concerned with water quality in Florida may be interested
in this rulemaking. Entities discharging nitrogen or phosphorus to
lakes and flowing waters of Florida could be indirectly affected by
this rulemaking because WQS are used in determining National Pollutant
Discharge Elimination System (``NPDES'') permit limits. Stakeholders in
Florida facing obstacles in immediately achieving full aquatic life
protection in impaired waters may be interested in the restoration
standards concept outlined in this rulemaking. Categories and entities that may ultimately be affected include:
Examples of potentially
Category affected entities
Industry............................... Industries discharging
pollutants to lakes and
flowing waters in the State of Florida.
Municipalities......................... Publiclyowned treatment works
discharging pollutants to
lakes and flowing waters in
the State of Florida.
Stormwater Management Districts........ Entities responsible for
managing stormwater runoff in Florida.
This table is not intended to be exhaustive, but rather provides a guide for entities that may be directly or indirectly affected by this action. This table lists the types of entities of which EPA is now aware that potentially could be affected by this action. Other types of entities not listed in the table could also be affected, such as nonpoint source contributors to nutrient pollution in Florida's waters. Any parties or entities conducting activities within watersheds of the Florida waters covered by this rule, or who rely on, depend upon, influence, or contribute to the water quality of the lakes and flowing waters of Florida, might be affected by this rule. To determine whether your facility or activities may be affected by this action, you should examine this proposed rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. C. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk or CDROM that
[[Page 4178]]
you mail to EPA, mark the outside of the disk or CDROM as CBI and then
identify electronically within the disk or CDROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).
2. Follow directionsThe agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
D. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this action under Docket Id. No. EPAHQOW20090596. The official public docket consists of the document specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include CBI or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 2025661744. A reasonable fee will be charged for copies.
2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the ``Federal Register'' listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/
dockets.htm. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the Docket Facility identified in Section I.D(1).
II. Background
A. Nutrient Pollution
1. What Is Nutrient Pollution?
Excess anthropogenic concentrations of nitrogen (typically in
oxidized, inorganic forms, such as nitrate) \3\ and phosphorus
(typically as phosphate), commonly referred to as nutrient pollution,
in surface waters can result in excessive algal and aquatic plant
growth, referred to as eutrophication.\4\ One impact associated with
eutrophication is low dissolved oxygen, due to decomposition of the
aquatic plants and algae when these plants and algae die. As noted
above, high nitrogen and phosphorus loadings also result in HABs,
reduced spawning grounds and nursery habitats for aquatic life, and
fish kills. Public health concerns related to eutrophication include
impaired drinking water sources, increased exposure to toxic microbes
such as cyanobacteria, and possible formation of disinfection
byproducts in drinking water, some of which have been associated with
serious human illnesses such as bladder cancer.5 6 Nutrient
problems can manifest locally or much further downstream in lakes, reservoirs, and estuaries.
\3\ To be used by living organisms, nitrogen gas must be fixed
into its reactive forms; for plants, either nitrate or ammonia.
\4\ Eutrophication is defined as an increase in organic carbon
to an aquatic ecosystem caused by primary productivity stimulated by
excess nutrientstypically compounds containing nitrogen or
phosphorus. Eutrophication can adversely affect aquatic life, recreation, and human health uses of waters.
\5\ Villanueva, C.M. et al., 2006. Bladder Cancer and Exposure
to Water Disinfection ByProducts through Ingestion, Bathing,
Showering, and Swimming in Pools. American Journal of Epidemiology, 165(2):148156.
\6\ U.S. EPA. 2009. What Is in Our Drinking Water. United States
Environmental Protection Agency, Office of Research and Development.
http://www.epa.gov/extrmurl/research/process/drinkingwater.html. Accessed December 2009.
Excess nutrients in water bodies come from many sources, which can
be grouped into five major categories: (1) Sources associated with
urban land use and development, (2) municipal and industrial waste
water discharge, (3) row crop agriculture, (4) animal husbandry, and
(5) atmospheric deposition that may be increased by production of
nitrogen oxides in electric power generation and internal combustion
engines. These sources contribute significant loadings of nitrogen and
phosphorus to surface waters causing major impacts to aquatic
ecosystems and significant imbalances in the natural populations of flora and fauna.\7\
\7\ National Research Council, 2000. Clean Coastal Waters:
Understanding and Reducing the Effects of Nutrient Pollution. Report
prepared by the Ocean Study Board and Water Science and Technology
Board, Commission on Geosciences, Environment and Resources,
National Resource Council. National Academy Press, Washington, DC;
Howarth, R.W., A. Sharpley, and D. Walker. 2002. Sources of nutrient
pollution to coastal waters in the United States: Implications for
achieving coastal water quality goals. Estuaries. 25(4b):656676;
Smith, V.H. 2003. Eutrophication of freshwater and coastal marine
ecosystems. Environ. Sci. and Poll. Res. 10(2):126139; Dodds, W.K.,
W.W. Bouska, J.L. Eitzmann, T.J. Pilger, K.L. Pitts, A.J. Riley,
J.T. Schloesser, and D.J. Thornbrugh. 2009. Eutrophication of U.S.
freshwaters: Analysis of potential economic damages. Environ. Sci. Tech.. 43(1):1219.
2. Adverse Impacts of Nutrient Pollution on Aquatic Life, Human Health, and the Economy
To protect aquatic life, EPA regulates pollutants that have adverse effects on aquatic life. For most pollutants, these effects are typically negative impacts on growth, reproduction, and survival. As previously noted, excess nutrients can lead to increases in algal and other aquatic plant growth, including toxic algae that can result in HABs. Increases in algal and aquatic plant growth provide excess organic matter in a water body and can contribute to subsequent degradation of aquatic communities, human health impacts, and ultimately economic impacts.
Fish, shellfish, and wildlife require clean water for survival.
Changes in the environment resulting from elevated nutrient levels
(such as algal blooms, toxins from HABs, and hypoxia/anoxia) can cause
a variety of effects. When excessive nutrient loads change a water
body's algae and plant species, the change in habitat and available
food resources can induce changes affecting an entire food chain. Algal blooms block
[[Page 4179]]
sunlight that submerged grasses need to grow, leading to a decline of
seagrass beds and decreased habitat for juvenile organisms. Algal
blooms can also increase turbidity and impair the ability of fish and
other aquatic life to find food.\8\ Algae can also damage or clog the gills of fish and invertebrates.\9\
\8\ Hauxwell, J. C. Jacoby, T. Frazer, and J. Stevely. 2001. Nutrients and Florida's Coastal Waters. Florida Sea Grant.
\9\ NOAA. 2009. Harmful Algal Blooms: Current Programs Overview.
National Oceanic and Atmospheric Administration. http://
www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed December 2009.
HABs can form toxins that cause illness or death for some animals.
Some of the more commonly affected animals include sea lions, turtles,
seabirds, dolphins, and manatees.\10\ More than 50% of unusual marine
mortality events may be associated with HABs.\11\ Lower level
consumers, such as small fish or shellfish, may not be harmed by algal
toxins, but they bioaccumulate toxins, causing higher exposures for
higher level consumers (such as larger predator fish), resulting in health impairments and possibly death.12 13
\10\ NOAA. 2009. Harmful Algal Blooms: Current Programs
Overview. National Oceanic and Atmospheric Administration. http://
www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed December 2009.
\11\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/ page.do?pid=9682. Accessed December 2009.
\12\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic
Institution. http://www.whoi.edu/redtide/page.do?pid=14215. Accessed December 2009.
\13\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/ page.do?pid=9682. Accessed December 2009.
There are many examples of HAB toxins significantly affecting
marine animals. For example, between March and April 2003, 107
bottlenose dolphins (Tursiops truncatus) died, along with hundreds of
fish and marine invertebrates, along the Florida Panhandle.\14\ High
levels of brevetoxin (a neurotoxin), produced by a harmful species of
dinoflagellate (a type of algae), were measured in all of the stranded dolphins examined, as well as in their fish prey.\15\
\14\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic
Institution. http://www.whoi.edu/redtide/page.do?pid=14215. Accessed December 2009.
\15\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic
Institution. http://www.whoi.edu/redtide/page.do?pid=14215. Accessed December 2009.
In freshwater, cyanobacteria can produce toxins that have been
implicated as the cause of a large number of fish and bird mortalities.
These toxins have also been tied to the death of pets and livestock
that may be exposed through drinking contaminated water or grooming
themselves after bodily exposure.\16\ A recent study showed that at
least one type of cyanobacteria has been linked to cancer and tumor growth in animals.\17\
\16\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole
Oceanographic Institution. http://www.whoi.edu/redtide/ page.do?pid=9682. Accessed December 2009.
\17\ Falconer, I.R., A.R. Humpage. 2005. Health Risk Assessment
of Cyanobacterial (Bluegreen Algal) Toxins in Drinking Water. Int. J. Environ. Res. Public Health. 2(1): 4350.
Excessive algal growth contributes to increased oxygen consumption
associated with decomposition, potentially reducing oxygen to levels below that needed for aquatic life to survive and
flourish.18 19 Low oxygen, or hypoxia, often occurs in
episodic ``events,'' which sometimes develop overnight. Mobile species,
such as adult fish, can sometimes survive by moving to areas with more
oxygen. However, migration to avoid hypoxia depends on species
mobility, availability of suitable habitat, and adequate environmental
cues for migration. Less mobile or immobile species, such as oysters
and mussels, cannot move to avoid low oxygen and are often killed
during hypoxic events.\20\ While certain mature aquatic animals can
tolerate a range of dissolved oxygen levels that occur in the water,
younger life stages of species like fish and shellfish often require
higher levels of oxygen to survive.\21\ Sustained low levels of
dissolved oxygen cause a severe decrease in the amount of aquatic life
in hypoxic zones and affect the ability of aquatic organisms to find
necessary food and habitat. In extreme cases, anoxic conditions occur
when there is a complete lack of oxygen. Very few organisms can live
without oxygen (for example some microbes), hence these areas are sometimes referred to as dead zones.\22\
\18\ NOAA. 2009. Harmful Algal Blooms: Current Programs
Overview. National Oceanic and Atmospheric Administration. http://
www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed December 2009.
\19\ USGS. 2009. Hypoxia. U.S. Geological Survey. http://
toxics.usgs.gov/definitions/hypoxia.html. Accessed December 2009.
\20\ ESA. 2009. Hypoxia. Ecological Society of America. http://
www.esa.org/education_diversity/pdfDocs/hypoxia.pdf. Accessed December 2009.
\21\ USEPA. 2000. Ambient Aquatic Life Water Quality Criteria
for Dissolved Oxygen (Saltwater): Cape Cod to Cape Hattaras.
Environmental Protection Agency, Office of Water, Washington DC PA 822R00012.
\22\ Ecological Society of America. 2009. Hypoxia. Ecological
Society of America, Washington, DC. http://www.esa.org/education/ edupdfs/hypoxia.pdf. Accessed December 2009.
Primary impacts to humans result directly from elevated nutrient pollution levels and indirectly from the subsequent water body changes that occur from increased nutrients (such as algal blooms and toxins). Direct impacts include effects on human health through drinking water or consuming toxic shellfish. Indirect impacts include restrictions on recreation (such as boating, swimming, and kayaking). Algal blooms can prevent opportunities to swim and engage in other types of recreation. In areas where recreation is determined to be unsafe because of algal blooms, warning signs are often posted to discourage human use of the waters.
Highly elevated nitrogen levels, in the form of nitrate, in
drinking water supplies and private wells can cause methemoglobinemia
(blue baby syndrome, which refers to high levels of nitrate in a baby's
blood that reduce the blood's ability to deliver oxygen to the skin and
organs resulting in a bluish tinge to the skin; in severe cases
methemoglobinemia can lead to coma and death).\23\ Monitoring of
Florida Public Water Supplies from 20042007 indicates that violations
of nitrate maximum contaminant levels (MCL) ranged from 3440
violations annually.\24\ In addition, in the predominantly agricultural
regions of Florida, of 3,949 drinking water wells analyzed for nitrate
by the Florida Department of Agriculture and Consumer Services, (FDACS)
and the FDEP, 2,483 (63%) contained detectable nitrate and 584 wells
(15%) contained nitrate above the U.S. EPA MCL. Of the 584 wells
statewide that exceeded the MCL, 519 were located in the Central
Florida Ridge citrus growing region, encompassed primarily by Lake,
Polk and Highland Counties.\25\ Human health can also be impacted by
disinfection byproducts formed when disinfectants (such as chlorine)
used to treat drinking water react with organic carbon (from the algae
in source waters). Some disinfection byproducts have been linked to
rectal, bladder, and colon cancers; reproductive health risks; and liver, kidney, and central nervous
[[Page 4180]]
system problems.26 27 Humans can also be impacted by
accidentally ingesting toxins, resulting from toxic algal blooms in
water, while recreating or by consuming drinking water that still
contains toxins despite treatment. For example, cyanobacteria toxins
can sometimes pass through the normal water treatment process.\28\
After consuming seafood tainted by toxic HABs, humans can develop
gastrointestinal distress, memory loss, disorientation, confusion, and
even coma and death in extreme cases. Some toxins only require a small
dose to cause illness or death.\29\ EPA expects that by addressing
protection of aquatic life uses through the application of the proposed
numeric nutrient criteria in this rulemaking, risks to human health
will also be alleviated, as nutrient levels that represent a balance of
natural populations of flora and fauna will not produce HABs nor result in highly elevated nitrate levels.
\23\ USEPA. 2007. Nitrates and Nitrites. U.S. Environmental
Protection Agency. http://www.epa.gov/teach/chem_summ/Nitrates_ summary.pdf. Accessed December 2009.
\24\ FDEP 2009. Chemical Data for 2004, 2005, 2006, 2007 and
2008. Florida Department of Environmental Protection. http://
www.dep.state.fl.us/water/drinkingwater/chemdata.htm. Accessed January 2010.
\25\ Southern Regional Water Program. 2010. Drinking Water and
Human Health in Florida. Southern Regional Water Program, http://
srwqis.tamu.edu/florida/programinformation/floridatargetthemes/
drinkingwaterandhumanhealth.aspx. Accessed January 2010. \26\ USEPA. 2009. Drinking Water Contaminants. U.S.
Environmental Protection Agency. Accessed http://www.epa.gov/ safewater/hfacts.html. December 2009.
\27\ CFR. 2006. 40 CFR parts 9, 141, and 142: National Primary
Drinking Water Regulations: Stage 2 Disinfectants and Disinfection
Byproducts Rule. Code of Federal Regulations, Washington, DC. http:/
/www.epa.gov/fedrgstr/EPAWATER/2006/January/Day04/w03.htm. Accessed December 2009.
\28\ Carmichael, W.W. 2000. Assessment of BlueGreen Algal
Toxins in Raw and Finished Drinking Water. AWWA Research Foundation, Denver, CO.
\29\ NOAA. 2009. Marine Biotoxins. National Oceanic and
Atmospheric Administration. http://www.nwfsc.noaa.gov/hab/habs_
toxins/marine_biotoxins/index.html. Accessed December 2009.
Nutrient pollution and eutrophication can also impact the economy through additional reactive costs, such as medical treatment for humans who ingest HAB toxins, treating drinking water supplies to remove algae and organic matter, and monitoring water for shellfish and other affected resources.
Economic losses from algal blooms and HABs can include reduced
property values for lakefront areas, commercial fishery losses, and
lost revenue from recreational fishing and boating trips, as well as
other tourismrelated businesses. Commercial fishery losses occur
because of a decline in the amount of fish available for harvest due to
habitat and oxygen declines. Some HAB toxins can make seafood unsafe
for human consumption, and can reduce the amount of fish bought because
people might question if eating fish is safe after learning of the
presence of the algal bloom.\30\ To put the issue into perspective,
consider the following estimates: For freshwater lakes, losses in
fishing and boating triprelated revenues nationwide due to
eutrophication are estimated to range from $370 million to almost $1.2
billion dollars and loss of lake property values from excessive algal
growth are estimated to range from $300 million to $2.8 billion annually on a national level.\31\
\30\ WHOI. 2008. Hearing on 'Harmful Algal Blooms: The
Challenges on the Nation's Coastlines.' Woods Hole Oceanographic
Institution. http://www.whoi.edu/page.do?pid=8916&tid=282 &cid=46007. Accessed December 2009.
\31\ Dodds, W.K., W.W. Bouska, J.L. Eitzmann, T.J. Pilger, K.L.
Pitts, A.J. Riley, J.T. Schloesser, and D.J. Thornbrugh. 2009.
Eutrophication of U.S. freshwaters: analysis of potential economic damages. Environ.l Sci. Tech.y. 43(1):1219.
3. Nutrient Pollution in Florida
Water quality degradation resulting from excess nitrogen and
phosphorus loadings is a documented and significant environmental issue
in Florida. According to Florida's 2008 Integrated Report,\32\
approximately 1,000 miles of rivers and streams, 350,000 acres of
lakes, and 900 square miles of estuaries are impaired for nutrients in
the State. To put this in context, these values represent approximately
5% of the assessed river and stream miles, 23% of the assessed lake
acres, and 24% of the assessed square miles of estuaries that Florida
has listed as impaired in the 2008 Integrated Report.\33\ Nutrients are
ranked as the fourth major source of impairment for rivers and streams
in the State (after dissolved oxygen, mercury in fish, and fecal
coliforms). For lakes and estuaries, nutrients are ranked first and
second, respectively. As discussed above, impairments due to nutrient
pollution result in significant impacts to aquatic life and ecosystem
health. Nutrient pollution also represents, as mentioned above, an
increased human health risk in terms of contaminated drinking water supplies and private wells.
\32\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update.
\33\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update.
Florida is particularly vulnerable to nutrient pollution.
Historically, the State has experienced a rapidly expanding population,
which is a strong predictor of nutrient loading and associated effects,
and which combined with climate and other natural factors, make Florida
waters sensitive to nutrient effects. Florida is currently the fourth
most populous state in the nation, with an estimated 18 million
people.\34\ Population is expected to continue to grow, resulting in an
expected increase in urban development, home landscapes, and
wastewater. Florida's flat topography causes water to move slowly over
the landscape, allowing ample opportunity for eutrophication responses
to develop. Similarly, small tides in many of Florida's estuaries
(especially on the Gulf coast) also allow for welldeveloped
eutrophication responses in tidal waters. Florida's warm and wet, yet
sunny, climate further contributes to increased runoff and subsequent
eutrophication responses.\35\ Exchanges of surface water and ground
water contribute to complex relationships between nutrient sources and the location and timing of eventual impacts.\36\
\34\ U.S. Census Bureau. 2009. 2008 Population Estimates Ranked
by State. http://factfinder.census.gov.
\35\ Perry, W.B. 2008. Everglades restoration and water quality challenges in south Florida. Ecotoxicology 17:569578.
\36\ USGS. 2009. Florida Waters: A Water Resources Manual.
http://sofia.usgs.gov/publications/reports/floridawaters/. Accessed June 9, 2009.
In addition, extensive agricultural development and associated
hydrologic modifications (e.g., canals and ditches) amplify the State's
susceptibility to nutrient pollution. Many of Florida's inland areas
have extensive tracts of agricultural lands. Much of the intensive
agriculture and associated fertilizer usage takes place in locations
dominated by poorly drained sandy soils and with high annual rainfall
amounts, two conditions favoring nutrientrich runoff. These factors,
along with population increase, have contributed to a significant
upward trend in nutrient inputs to Florida's waters.\37\ High
historical water quality and the human and aquatic life uses of many
waterways in Florida often means that very low nutrients, low
productivity, and high water clarity are needed and expected to maintain uses.
\37\ Florida Department of Environmental Protection. 2008.
Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update.
B. Statutory and Regulatory Background
Section 303(c) (33 U.S.C. 1313(c)) of the CWA directs states to
adopt WQS for their navigable waters. Section 303(c)(2)(A) and EPA's
implementing regulations at 40 CFR part 131 require, among other
provisions, that state WQS include the designated use or uses to be
made of the waters and criteria that protect those uses. EPA
regulations at 40 CFR 131.11(a)(1) provide that states shall ``adopt those water quality criteria
[[Page 4181]]
that protect the designated use'' and that such criteria ``must be
based on sound scientific rationale and must contain sufficient
parameters or constituents to protect the designated use.'' As noted
above, 40 CFR 130.10(b) provides that ``In designating uses of a water
body and the appropriate criteria for those uses, the state shall take
into consideration the water quality standards of downstream waters and
ensure that its water quality standards provide for the attainment and
maintenance of the water quality standards of downstream waters.''
States are also required to review their WQS at least once every three years and, if appropriate, revise or adopt new standards (CWA section 303(c)(1)). States are required to submit these new or revised WQS for EPA review and approval or disapproval (CWA section 303(c)(2)(A)). Finally, CWA section 303(c)(4)(B) authorizes the Administrator to determine, even in the absence of a state submission, that a new or revised standard is needed to meet CWA requirements. The criteria proposed in this rulemaking apply to lakes and flowing waters of the State of Florida. EPA's proposal defines ``lakes and flowing waters'' to mean inland surface waters that have been classified by Florida as Class I (Potable Water Supplies Use) or Class III (Recreation, Propagation and Maintenance of a Healthy, WellBalanced Population of Fish and Wildlife Use) water bodies pursuant to Florida Administrative Code (F.A.C.) Rule 62302.400, excluding wetlands, and which are predominantly fresh waters.
C. Water Quality Criteria
EPA has issued guidance for use by states when developing criteria. Under CWA section 304(a), EPA periodically publishes criteria recommendations (guidance) for use by states in setting water quality criteria for particular parameters to protect recreational and aquatic life uses of waters. When EPA has published recommended criteria, states have the option of adopting water quality criteria based on EPA's CWA section 304(a) criteria guidance, section 304(a) criteria guidance modified to reflect sitespecific conditions, or other scientifically defensible methods. 40 CFR 131.11(b)(1).
For nutrients, EPA has published under CWA section 304(a) a series
of peerreviewed, national technical approaches and methods regarding
the development of numeric nutrient criteria for lakes and
reservoirs,\38\ rivers and streams,\39\ and estuaries and coastal
marine waters.\40\ Basic analytical approaches for nutrient criteria
derivation include, but are not limited to: (1) Stressorresponse
analysis, (2) the reference condition approach, and (3) mechanistic
modeling. The stressorresponse, or effectsbased, approach relates a
water body's response to nutrients and identifies adverse effect
levels. This is done by selecting a protective value based on the
relationships of nitrogen and phosphorus field measures with indicators
of biological response. This approach is empirical, and directly
relates to the designated uses. The reference condition approach derives candidate criteria from distributions of nutrient
concentrations and biological responses in a group of waters.
Measurements are made of causal and response variables and a protective
value is selected from the distribution. The mechanistic modeling
approach predicts a causeeffect relationship using sitespecific input
to equations that represent ecological processes. Mechanistic models
require calibration and validation. Each approach has peer review
support by the broader scientific community, and would provide adequate
means for any state to develop scientifically defensible numeric nutrient criteria.
\38\ U.S. EPA. 2000a. Nutrient Criteria Technical Guidance
Manual: Lakes and Reservoirs. Office of Water, Washington, DC. EPA 822B00001.
\39\ U.S. EPA. 2000b. Nutrient Criteria Technical Guidance
Manual: Rivers and Streams. Office of Water, Washington, DC. EPA 822B00002.
\40\ U.S. EPA. 2001. Nutrient Criteria Technical Manual:
Estuarine and Coastal Marine Waters. Office of Water, Washington, DC. EPA822B01003, and wetlands (U.S. EPA, 2007).
In cases where scientifically defensible numeric criteria cannot be derived, EPA regulations provide that narrative criteria should be adopted. 40 CFR 131.11(b)(2). Narrative criteria are descriptions of conditions necessary for the water body to attain its designated use. Often expressed as requirements that waters remain ``free from'' certain characteristics, narrative criteria can be the basis for controlling nuisance conditions such as floating debris or objectionable deposits. States often establish narrative criteria, such as ``no toxics in toxic amounts,'' in order to limit toxic pollutants in waters where the state has yet to adopt an EPArecommended numeric criterion and or where EPA has yet to derive a recommended numeric criterion. For nutrients, in the absence of numeric nutrient criteria, states have often established narrative criteria such as ``no nuisance algae.'' Reliance on a narrative criterion to derive NPDES permit limits, assess water bodies for listing purposes, and establish TMDL targets can often be a difficult, resourceintensive, and time consuming process that entails conducting casebycase analyses to determine the appropriate numeric target value based on a sitespecific translation of the narrative criterion. Narrative criteria are most effective when they are supported by procedures to translate them into quantitative expressions of the conditions necessary to protect the designated use.
D. Agency Determination Regarding Florida
On January 14, 2009, EPA determined under CWA section 303(c)(4)(B) that new or revised WQS in the form of numeric nutrient water quality criteria are necessary to meet the requirements of the CWA in the State of Florida. Florida's currently applicable narrative nutrient criterion provides, in part, that ``in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.'' Florida Administrative Code (F.A.C.) 62302530(47)(b). EPA determined that Florida's narrative nutrient criterion alone was insufficient to ensure protection of applicable designated uses. The determination recognized that Florida has a proactive and innovative program to address nutrient pollution through a strategy of comprehensive National Pollutant Discharge Elimination System (NPDES) permit regulations, Basin Management Action Plans (BMAPs) for implementation of TMDLs which include controls on nonpoint sources, municipal wastewater treatment technologybased requirements under the 1990 GrizzleFigg Act, and rules to limit nutrient pollution in geographically specific areas like the Indian River Lagoon System, the Everglades Protection Area, and Wekiva Springs. However, the determination noted that despite Florida's intensive efforts to diagnose and control nutrient pollution, substantial water quality degradation from nutrient overenrichment remains a significant challenge in the State and one that is likely to worsen with continued population growth and landuse changes.
Florida's implementation of its narrative water quality criterion
for nutrients is based on sitespecific detailed biological assessments
and analyses, together with sitebysite outreach and stakeholder engagement in the context of specific CWArelated
[[Page 4182]]
actions, specifically NPDES permits, TMDLs required for both permitting
and BMAP activities, and assessment and listing decisions. When
deriving NPDES water qualitybased permit limits, Florida initially
conducts a sitespecific analysis to determine whether a proposed
discharge has the reasonable potential to cause or contribute to an
exceedance of its narrative nutrient water quality criterion. The State
then determines what levels of nutrients would ``cause an imbalance in
natural populations of aquatic flora or fauna'' and translates those
levels into numeric ``targets'' for the receiving water and any other
affected waters. Determining on a waterbywater basis for thousands of
State waters the levels of nutrients that would ``cause an imbalance in
natural populations of aquatic flora or fauna'' is a difficult,
lengthy, and dataintensive undertaking. This work involves performing
detailed sitespecific analyses of the receiving water and any other
affected waters. If the State has not already completed this analysis
for a particular water, it can be very difficult to accurately
determine in the context and timeframe of the NPDES permitting process.
For example, in some cases, adequate data may take several years to
collect and therefore, may not be available for a particular water at the time of permitting issuance or reissuance.
When developing TMDLs, as it does when determining reasonable potential and deriving limits in the permitting context, Florida translates the narrative nutrient criterion into a numeric target that the State determines is necessary to meet its narrative criterion and protect applicable designated uses. This process also involves a site specific analysis to determine the nutrient levels that would ``cause an imbalance in natural populations of aquatic flora or fauna'' in a particular water. Each time a sitespecific analysis is conducted to determine what the narrative criterion means for a particular water body in developing a TMDL, the State takes sitespecific considerations into account and devises a method that works with the available data and information.
In adopting the Impaired Waters Rule (IWR), Florida took important steps toward improving implementation of its narrative nutrient criterion by establishing and publishing an assessment methodology to identify waters impaired for nutrients. This methodology includes numeric nutrient impairment ``thresholds'' above which waters are automatically deemed impaired. Even when a listing is made, however, development of a TMDL is then generally required to support issuance of a permit or development of a BMAP.
Based on the considerations outlined above, EPA concluded that numeric criteria for nutrients will enable the State to take necessary actions to protect the designated uses, in a timelier manner. The resource intensive efforts to interpret the State's narrative criterion contribute to delays in implementing the criterion and therefore, affect the State's ability to provide the needed protections for applicable designated uses. EPA, therefore, determined that numeric nutrient criteria are necessary for the State of Florida to meet the CWA requirement to have criteria that protect applicable designated uses.
The combined impacts of urban and agricultural activities, along with Florida's physical features and important and unique aquatic ecosystems, made it clear that the current use of the narrative nutrient criterion alone and the resulting delays that it entails do not ensure protection of applicable designated uses for the many State waters that are either unimpaired and need protection or have been listed as impaired and require loadings reductions. EPA determined that numeric nutrient water quality criteria would strengthen the foundation for identifying impaired waters, establishing TMDLs, and deriving water qualitybased effluent limits in NPDES permits, thus providing the necessary protection for the State's designated uses in its waters. In addition, numeric nutrient criteria will support the State's ability to effectively partner with point and nonpoint sources to control nutrients, thus further providing the necessary protection for the designated uses of the State's water bodies. EPA's determination is available at the following Web site: http://www.epa.gov/waterscience/ standards/rules/fldetermination.htm.
The January 14, 2009 determination stated EPA's intent to propose numeric nutrient criteria for lakes and flowing waters in Florida within twelve months of the January 14, 2009 determination, and for estuarine and coastal waters within 24 months of the determination. EPA has also entered into a Consent Decree with Florida Wildlife Federation, Sierra Club, Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, and St. Johns Riverkeeper, committing to the schedule stated in EPA's January 14, 2009 determination to propose numeric nutrient criteria for lakes and flowing waters in Florida by January 14, 2010, and for Florida's estuarine and coastal waters by January 14, 2011. The Consent Decree also requires that final rules be issued by October 15, 2010 for lakes and flowing waters, and by October 15, 2011 for estuarine and coastal waters.
In accordance with the determination and EPA's Consent Decree, EPA is proposing numeric nutrient criteria for Florida's lakes and flowing waters with this proposed rule. As envisioned in EPA's determination, this time frame has allowed EPA to utilize the larg
FOR FURTHER INFORMATION CONTACT
Danielle Salvaterra, U.S. EPA Headquarters, Office of Water, Mailcode: 4305T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 2025641649; fax number: 2025669981; email address: salvaterra.danielle@epa.gov.