Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 4174-4226 [2010-1220]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 16 (Tuesday, January 26, 2010)]
[Proposed Rules]
[Pages 4174-4226]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1220]



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Part III





Environmental Protection Agency





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40 CFR Part 131



Water Quality Standards for the State of Florida's Lakes and Flowing 
Waters; Proposed Rule

Federal Register / Vol. 75 , No. 16 / Tuesday, January 26, 2010 / 
Proposed Rules

[[Page 4174]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2009-0596; FRL-9105-1]
RIN 2040-AF11


Water Quality Standards for the State of Florida's Lakes and 
Flowing Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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.

DATES: Comments must be received on or before March 29, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
    1. www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: ow-docket@epa.gov.
    3. Mail to: Water Docket, U.S. Environmental Protection Agency, 
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention: Docket ID No. EPA-HQ-OW-2009-0596.
    4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Avenue, NW., Washington, DC 20004, Attention: Docket ID 
No. EPA-HQ-OW-2009-0596. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-
0596. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at a docket facility. The Office 
of Water (OW) Docket Center is open from 8:30 until 4:30 p.m., Monday 
through Friday, excluding legal holidays. The OW Docket Center 
telephone number is (202) 566-2426, and the Docket address is OW 
Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, 
DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744.
    Public hearings will be held in the following cities in Florida: 
Tallahassee, Orlando, and West Palm Beach. The public hearing in 
Tallahassee is scheduled for Tuesday, February 16, 2010 and will be 
held from 1 p.m. to 5 p.m. and 7 p.m. to 10 p.m. at the Holiday Inn 
Capitol East, 1355 Apalachee Parkway, Tallahassee, FL 32301. The public 
hearing in Orlando is scheduled for Wednesday, February 17, 2010 and 
will be held from 1 p.m. to 5 p.m. and 7 p.m. to 10 p.m. at the Crowne 
Plaza Orlando Universal, 7800 Universal Boulevard, Orlando, FL 32819. 
The public hearing in West Palm Beach is scheduled for Thursday, 
February 18, 2010 and will be held from 1 p.m. to 5 p.m. and 7 p.m. to 
10 p.m. at the Holiday Inn Palm Beach Airport, 1301 Belvedere Road, 
West Palm Beach, FL 33405. If you need a sign language interpreter at 
any of these hearings, you should contact Sharon Frey at 202-566-1480 
or frey.sharon@epa.gov at least ten business days prior to the meetings 
so that appropriate arrangements can be made. For further information, 
including registration information, please refer to the following Web 
site: https://www.epa.gov/waterscience/standards/rules/florida/.

FOR FURTHER INFORMATION CONTACT: Danielle Salvaterra, U.S. EPA 
Headquarters, Office of Water, Mailcode: 4305T, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460; telephone number: 202-564-1649; fax 
number: 202-566-9981; e-mail address: salvaterra.danielle@epa.gov.

SUPPLEMENTARY 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

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    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. Site-Specific 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 Low-Income 
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 over-enrichment in many of the Nation's waters is a 
widespread, persistent, and growing problem. Nutrient pollution can 
significantly impact aquatic life and long-term 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.''
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    \1\ Florida Department of Environmental Protection. 2008. 
Integrated Water Quality Assessment for Florida: 2008 305(b) Report 
and 303(d) List Update, p. 67.
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    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 
nitrite-nitrate 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 
site-specific 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 technology-based 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 resource-intensive and time-consuming site-specific 
data collection and analysis to interpret non-numeric narrative 
nutrient criteria. EPA determined that Florida's reliance on a case-by-
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.
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    \2\ https://www.census.gov/population/projections/SummaryTabA1.pdf.
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    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, peer-reviewed methodologies, 
and extensive scientific

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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 site-specific 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 site-specific 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 site-specific 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 site-specific 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 nutrient-related measurements as well as its 
analysis of stressor-response 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 stressor-response 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 long-term 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., stressor-response 
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 near-field 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 concentration-based 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

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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 technically-based 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 nitrate-nitrite 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 site-specific 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:

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                                             Examples of potentially
                Category                        affected entities
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Industry...............................  Industries discharging
                                          pollutants to lakes and
                                          flowing waters in the State of
                                          Florida.
Municipalities.........................  Publicly-owned 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.
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    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 
https://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that

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you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then 
identify electronically within the disk or CD-ROM 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 directions--The 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. EPA-HQ-OW-2009-0596. 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 202-566-1744. 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 https://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 https://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 https://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.
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    \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 nutrients--typically 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 By-Products through Ingestion, Bathing, 
Showering, and Swimming in Pools. American Journal of Epidemiology, 
165(2):148-156.
    \6\ U.S. EPA. 2009. What Is in Our Drinking Water. United States 
Environmental Protection Agency, Office of Research and Development. 
https://www.epa.gov/extrmurl/research/process/drinkingwater.html. 
Accessed December 2009.
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    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\
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    \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):656-676; 
Smith, V.H. 2003. Eutrophication of freshwater and coastal marine 
ecosystems. Environ. Sci. and Poll. Res. 10(2):126-139; 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):12-19.
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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\
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    \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. https://www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed 
December 2009.
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    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
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    \10\ NOAA. 2009. Harmful Algal Blooms: Current Programs 
Overview. National Oceanic and Atmospheric Administration. https://www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed 
December 2009.
    \11\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole 
Oceanographic Institution. https://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
    \12\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic 
Institution. https://www.whoi.edu/redtide/page.do?pid=14215. Accessed 
December 2009.
    \13\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole 
Oceanographic Institution. https://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
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    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\
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    \14\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic 
Institution. https://www.whoi.edu/redtide/page.do?pid=14215. Accessed 
December 2009.
    \15\ WHOI. 2008. Marine Mammals. Woods Hole Oceanographic 
Institution. https://www.whoi.edu/redtide/page.do?pid=14215. Accessed 
December 2009.
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    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\
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    \16\ WHOI. 2008. HAB Impacts on Wildlife. Woods Hole 
Oceanographic Institution. https://www.whoi.edu/redtide/page.do?pid=9682. Accessed December 2009.
    \17\ Falconer, I.R., A.R. Humpage. 2005. Health Risk Assessment 
of Cyanobacterial (Blue-green Algal) Toxins in Drinking Water. Int. 
J. Environ. Res. Public Health. 2(1): 43-50.
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    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\
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    \18\ NOAA. 2009. Harmful Algal Blooms: Current Programs 
Overview. National Oceanic and Atmospheric Administration. https://www.cop.noaa.gov/stressors/extremeevents/hab/welcome.html. Accessed 
December 2009.
    \19\ USGS. 2009. Hypoxia. U.S. Geological Survey. https://toxics.usgs.gov/definitions/hypoxia.html. Accessed December 2009.
    \20\ ESA. 2009. Hypoxia. Ecological Society of America. https://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-
822-R-00-012.
    \22\ Ecological Society of America. 2009. Hypoxia. Ecological 
Society of America, Washington, DC. https://www.esa.org/education/edupdfs/hypoxia.pdf. Accessed December 2009.
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    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 2004-2007 indicates that violations 
of nitrate maximum contaminant levels (MCL) ranged from 34-40 
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.
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    \23\ USEPA. 2007. Nitrates and Nitrites. U.S. Environmental 
Protection Agency. https://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. https://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, https://srwqis.tamu.edu/florida/program-information/florida-target-themes/drinking-water-and-human-health.aspx. Accessed January 2010.
    \26\ USEPA. 2009. Drinking Water Contaminants. U.S. 
Environmental Protection Agency. Accessed https://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. https://www.epa.gov/fedrgstr/EPA-WATER/2006/January/Day-04/w03.htm. 
Accessed December 2009.
    \28\ Carmichael, W.W. 2000. Assessment of Blue-Green Algal 
Toxins in Raw and Finished Drinking Water. AWWA Research Foundation, 
Denver, CO.
    \29\ NOAA. 2009. Marine Biotoxins. National Oceanic and 
Atmospheric Administration. https://www.nwfsc.noaa.gov/hab/habs_toxins/marine_biotoxins/. Accessed December 2009.
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    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 tourism-related 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 trip-related 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\
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    \30\ WHOI. 2008. Hearing on 'Harmful Algal Blooms: The 
Challenges on the Nation's Coastlines.' Woods Hole Oceanographic 
Institution. https://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):12-19.
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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.
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    \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.
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    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 well-developed 
eutrophication responses in tidal waters. Florida's warm and wet, yet 
sunny, climate further contributes to increased run-off 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\
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    \34\ U.S. Census Bureau. 2009. 2008 Population Estimates Ranked 
by State. https://factfinder.census.gov.
    \35\ Perry, W.B. 2008. Everglades restoration and water quality 
challenges in south Florida. Ecotoxicology 17:569-578.
    \36\ USGS. 2009. Florida Waters: A Water Resources Manual. 
https://sofia.usgs.gov/publications/reports/floridawaters/. Accessed 
June 9, 2009.
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    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 nutrient-rich 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.
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    \37\ Florida Department of Environmental Protection. 2008. 
Integrated Water Quality Assessment for Florida: 2008 305(b) Report 
and 303(d) List Update.
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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, Well-Balanced 
Population of Fish and Wildlife Use) water bodies pursuant to Florida 
Administrative Code (F.A.C.) Rule 62-302.400, 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 site-specific 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 peer-reviewed, 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) Stressor-response 
analysis, (2) the reference condition approach, and (3) mechanistic 
modeling. The stressor-response, or effects-based, 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 cause-effect relationship using site-specific 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.
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    \38\ U.S. EPA. 2000a. Nutrient Criteria Technical Guidance 
Manual: Lakes and Reservoirs. Office of Water, Washington, DC. EPA-
822-B-00-001.
    \39\ U.S. EPA. 2000b. Nutrient Criteria Technical Guidance 
Manual: Rivers and Streams. Office of Water, Washington, DC. EPA-
822-B-00-002.
    \40\ U.S. EPA. 2001. Nutrient Criteria Technical Manual: 
Estuarine and Coastal Marine Waters. Office of Water, Washington, 
DC. EPA-822-B-01-003, and wetlands (U.S. EPA, 2007).
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    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 EPA-recommended 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, resource-inten