S-EPA
United States
Environmental Protection
Agency
Office of Water   EPA- 820-F-11-010
                                                   4305T
                                                  July  2011
   Phosphorus Water Quality Standards for the Florida
                                    Everglades
Summary
EPA has proposed a Federal rule that identifies
provisions of Florida's Water Quality Standards
for Phosphorus in the Everglades Protection
Area (Phosphorus Rule) and Florida's Amended
Everglades Forever Act (EFA) that EPA has
disapproved, and that, therefore, are not
applicable water quality standards for purposes
of the Clean Water Act (CWA). The Federal rule
will eliminate portions of the EFA and
Phosphorus Rule related to a compliance
schedule for and variances of water quality
standards for phosphorus in the Everglades.
Limiting phosphorus pollution in the Everglades
is important because phosphorus causes
chemical and biological changes that degrade
natural systems and crowd out native plants
and wildlife. Excess phosphorus is being
released into the Everglades as runoff primarily
from farms to  the north.

Background
EPA issued a CWA determination in 2009 that
disapproved these same portions of both the
Phosphorus Rule and the EFA, and this
rulemaking formalizes these disapprovals in
accordance with an order from the U.S. District
Court for the Southern District of Florida
following lawsuits by the Miccosukee Tribe of
Indians and the Friends of the Everglades.
Consistent with the Court's April 14, 2010
Order, EPA directed Florida to correct
deficiencies in its Phosphorus Rule by January
1, 2011 and the EFA by July 1, 2011. The state
did not complete its rulemaking to change the
Phosphorus Rule by the deadline, and is unlikely
to amend the EFA as the Legislature has
adjourned and is not scheduled to reconvene
before July. Because the State has not completed
its rulemaking on the Rule or made statutory
changes to the EFA, EPA  is now initiating
                          rulemaking to promulgate standards pursuant to
                          CWA section 303(c) consistent with the Court's
                          2010 Order.

                          Florida's Everglades Forever Act
                          The Florida Legislature enacted the Everglades
                          Forever Act (EFA) in 1994 to maintain and
                          restore the ecosystem of the Everglades.  EPA
                          subsequently reviewed and approved one section
                          of the EFA (section 4(f)) as a new or revised
                          water quality standard in 1999. The Legislature
                          then enacted amendments to the EFA in 2003.
                          EPA reviewed the amendments and issued a
                          decision in 2003 that the  amendments were not
                          new or revised water quality standards that
                          required EPA approval/disapproval under
                          section 303(c) of the CWA.

                          Florida's Phosphorus Rule
                          In 2005, the Florida Department of
                          Environmental Protection (FDEP) submitted to
                          EPA for review "Water Quality Standards for
                          Phosphorus Within the Everglades Protection
                          Area" (Phosphorus Rule). The Phosphorus Rule
                          established a numeric water quality criterion for
                          phosphorus as well as implementing provisions
                          for the numeric criterion within the Everglades
                          Protection Area. In 2005  and 2006, EPA issued
                          a series of decisions approving certain
                          provisions of the Phosphorus Rule and
                          concluding that other provisions were not new  or
                          revised water quality standards and did not
                          require EPA approval/disapproval under CWA
                          section 303(c).

                          Litigation and Subsequent EPA Actions
                          In consolidated litigation, plaintiffs challenged
                          (1) EPA's 2003 decision that the EFA
                          amendments were not water quality standards,
                          and (2) EPA's 2005 and 2006 decisions
                          regarding the Phosphorus Rule. In a July 29,
                          2008 decision stemming from a suit brought by
                          the Miccosukee Tribe of Indians and Friends of

-------
the Everglades against EPA and FDEP, the U.S.
District Court for the Southern District of
Florida upheld and remanded EPA's decisions.
The court upheld EPA's 2005 approval of the
Phosphorus Rule's numeric phosphorus criterion
and the four-part test for determining attainment
of the criterion. The court overturned (1)  EPA's
decision that certain implementing provisions of
the Phosphorus Rule were not new or revised
water quality standards, and (2) EPA's approval
of other provisions of the Phosphorus Rule
finding EPA's approval to be arbitrary and
capricious. The court also rejected EPA's
determination that the legislative amendments to
the EFA did not constitute new or revised water
quality standards subject to EPA review.  The
court instructed to EPA to take further  action
consistent with the court's decision.

ERA'S December 2009 Determination
On December 3, 2009, EPA issued a new
Determination in response to the court's remand.
Consistent with the court's 2008  decision, EPA
disapproved certain amendments to the EFA. It
is those disapproved provisions of the EFA that
are, in part, the subject of this proposed
rulemaking. In addition, EPA reviewed the
provisions of the Phosphorus Rule that the court
either found were new and revised standards or
that the court had held EPA's prior approval
invalid. Consistent with the court's decision,
EPA disapproved certain provisions of the
Phosphorus Rule and those disapproved
provisions also are the subject of this proposed
rulemaking.

Court's ApriH0,2010 Order
The plaintiffs challenged EPA's December 2009
Determination, alleging that EPA failed to
specify the changes that Florida must make to
the Phosphorus Rule and EFA to bring them into
compliance with the CWA and commit to
promulgate if the state fails to act. On  April 10,
2010, the court remanded EPA's 2009
Determination and ordered EPA to issue  an
Amended Determination (AD) by September 3,
2010. The court ordered in the AD,  "EPA shall
require the State of Florida to commence and
complete rulemaking for the Phosphorus  Rule
within 120 days from the date of the AD  and
shall require amendments to the Amended EFA
to  be enacted by July 1, 2011." The court
further ordered that "in the event the State of
Florida fails to timely act, the EPA shall provide
timely notice, and the EPA Administrator shall
promulgate such standard[s] pursuant to 33
U.S.C. 1313(c)."

ERA'S September 2010 Amended Determination
Consistent with the April 14, 2010 court order,
EPA gave directions to the state of Florida for
correcting deficiencies in the Phosphorus Rule
and Amended EFA. EPA's AD included as
attachments, copies of the Phosphorus Rule and
EFA with strikeout markings indicating the
language that the state needed to correct. EPA's
AD stated that if FDEP has not finalized
revisions by January 1, 2011 and the legislature
has not enacted amendments to the EFA by July
1, 2011, EPA would initiate rulemaking to
promulgate standards consistent with the court
order.  FDEP initiated a rulemaking to adopt the
necessary revisions to the Phosphorus Rule
consistent with EPA's AD. However, FDEP did
not complete that process by January 1, 2011,
nor has FDEP completed its rulemaking process
since that date. The Florida legislature also did
not introduce or enact any amendments to the
EFA consistent with EPA's AD. The Florida
legislature stands adjourned and is not scheduled
to reconvene prior to July 1, 2011. Therefore,
EPA is proceeding to initiate the rulemaking
process to promulgate federal standards
addressing the deficiencies of the Phosphorus
Rule and EFA.

Regulatory Impacts
This proposed rule only seeks to implement two
orders by the U.S. District Court for the
Southern District of Florida. The scope is
limited: identifying provisions of Florida's
Phosphorus Rule and Everglades Forever Act
that EPA has previously disapproved, and that
therefore are not applicable water quality
standards for purposes of the Clean Water Act.
Hence, this proposed rule is not a new
regulation.  The proposed rule does not involve
technical standards, or impose any economic
impact burden on any small entity.

For More Information
Contact Mario Sengco at
sengco.mario(g),epa.gov or (202) 566-2676 for
more information on this proposed rule.

-------