x>EPA
United States
Environmental Protection
Agency
Office of Water EPA - 820-F-12-024
4305T
Phosphorus Water Quality Standards for the
Florida Everglades
Summary
EPA has promulgated a Federal rule that
identifies provisions of Florida's Water Quality
Standards for Phosphorus in the Everglades that
EPA had disapproved and that, therefore, are
not applicable water quality standards for
purposes of the Clean Water Act. The Federal
rule identifies portions of the phosphorus water
quality standards that extended the compliance
schedule for, and variances of water quality
standards from, the phosphorus water quality
standards in the Everglades.
Background
In 2009, EPA disapproved portions of Florida's
water quality standards for phosphorus in the
Everglades. This rule 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 order,
EPA directed Florida to correct deficiencies in
its Phosphorus Rule by January 1, 2011 and the
amended Everglades Forever Act (EFA) by July
1, 2011. Because the State did not complete its
rulemaking on the Phosphorus Rule or make
statutory changes to the EFA, EPA is now
promulgating a rule identifying the disapproved
provisions consistent with the Court's 2010
Order.
Florida's Everglades Forever Act
The Florida Legislature enacted the 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. That provision provided for attainment of
the phosphorus standards by December 31,
2006. The Legislature subsequently amended
the EFA in 2003 to extend the December 2006
deadline for a decade. After litigation over
whether and how EPA should act on the 2003
legislation, EPA disapproved the deadline
extension in 2009.
Florida's Phosphorus Rule
In 2005, the Florida Department of
Environmental Protection 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 Clean
Water Act section 303(c). After litigation over
whether and how EPA should act on the various
provisions of the Phosphorus Rule, EPA
disapproved the remaining provisions upon
which it had not yet acted.
Litigation and Subsequent EPA Actions
In consolidated litigation, plaintiffs challenged
EPA's decision that the EFA amendments were
not water quality standards, and EPA's 2005 and
2006 decisions regarding the Phosphorus Rule.
In a July 29, 2008 decision, the U.S. District
Court for the Southern District of Florida upheld
some portions of EPA's actions and remanded
others. 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
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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 EPA to take
further action consistent with the Court's
decision.
EPA's December 2009 Determination
On December 3, 2009, EPA issued a new Clean
Water Act determination to respond to the
Court's remand. EPA disapproved the EFA
amendments that the Court found to have been
revised water quality standards. EPA also
disapproved the provisions of the Phosphorus
Rule remanded by the Court. The provisions of
the EFA amendments and Phosphorus Rule that
EPA disapproved in December 2009 are the
subject of this rule.
Court's April 14, 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 Clean Water Act and
commit to promulgate if the State fails to act.
On April 14, 2010, the Court ordered EPA to
issue an Amended Determination by September
3, 2010, in which EPA would, among other
things, direct the State to correct deficiencies in
the EFA amendments and Phosphorus Rule.
The Court ordered that "in the event the State of
Florida fails to timely act, 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
In the Amended Determination, EPA provided
directions to the State of Florida for correcting
deficiencies in the Phosphorus Rule and
Amended EFA. Attached to the Amended
Determination were copies of the Phosphorus
Rule and EFA with strikeout markings
indicating the invalidated revised water quality
standards that continued to be published in State
law. EPA explained in the Amended
Determination that if Florida Department of
Environmental Protection did not finalize
revisions by January 1, 2011 and the legislature
did not enact amendments to the EFA by July 1,
2011, EPA would initiate rulemaking to
promulgate standards consistent with the Court
order. The Florida Environmental Regulation
Commission did initiate rulemaking to adopt the
necessary revisions to the Phosphorus Rule, but
did not complete that process by January 1,
2011, or since. The Florida legislature did not
introduce or enact any amendments to the EFA
to repeal the disapproved revisions to the
previously approved water quality standards by
July 1, 2011, or since. Therefore, EPA
promulgated federal regulations to identify the
disapproved provisions of the Phosphorus Rule
and EFA that remain in State law.
Regulatory Impacts
This final rule implements a federal court order.
The scope is limited: identifying provisions of
Florida's Phosphorus Rule and EFA that EPA
has previously disapproved and that therefore
are not applicable water quality standards for
purposes of the Clean Water Act. Hence, this
rule is not a new regulation. This final 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 rule.
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