x>EPA
United States
Environmental Protection
Agency
Office of Water EPA - 820-F-12-056
4305T
November 2012
Proposed Nutrients Standards for Florida's Streams and
Proposed Downstream Protection Values for Lakes
Summary
EPA has proposed numeric water quality criteria
and downstream protection values to protect
aquatic life and human health in certain streams
and lakes within the State of Florida from
nitrogen and phosphorus pollution. These
criteria, and the downstream protection values
for lakes, are intended to help reduce water
pollution that causes algal blooms.
Algal blooms can discolor water, deplete the
oxygen required for fish and shellfish survival,
smother vegetation, and produce toxins harmful
to humans, animals and ecosystems across the
state of Florida. They occur when excess
nitrogen and phosphorus, called "nutrient"
pollution, flows into waterways via wastewater
discharges, urban stormwater runoff and
fertilizer runoff.
EPA's goal is for FDEP to adopt appropriate
numeric nutrient criteria for all remaining
Florida waters that are determined to be Class I,
II, and/or III water bodies, therefore covered by
EPA's January 14, 2009 determination, thereby
eliminating the need for EPA promulgation of
federal rules. However, court orders resulting
from settlement of a 2008 lawsuit required EPA
to propose the federal rules announced today.
This proposed rule, along with criteria for
certain streams in Florida recently adopted by
Florida and approved by EPA, seeks to improve
water quality of Florida's streams and lakes, and
thereby protect public health, aquatic life and the
recreational uses of Florida's waters, which are a
critical part of the State's economy.
Background
Florida is known for its abundant and beautiful
natural resources, particularly its aquatic
resources, which are vital to Florida's economy.
However, nutrient pollution has contributed to
severe degradation of aquatic resources in
Florida.
In 2008, the Florida Wildlife Federation filed a
lawsuit against EPA, following which EPA
made a determination in January 2009 under the
Clean Water Act that numeric nutrient criteria
are needed in Florida. A December 2009 consent
decree settling the lawsuit laid out milestones for
EPA to establish criteria in two stages.
The first stage was for inland water bodies
outside of the south Florida, which EPA
promulgated in December 2010. EPA defined
"south Florida" as those areas south of Lake
Okeechobee, the Caloosahatchee River
watershed west of Lake Okeechobee, and the St.
Lucie watershed east of Lake Okeechobee.
Not long after the publication of the final rule
for inland waters, EPA received several legal
challenges to its rule. These were resolved in a
court ruling on February 18, 2012.
While upholding EPA's January 2009
determination and much of its final December
2010 rule, the court invalidated EPA's numeric
nutrient criteria for Florida's streams and EPA's
downstream protection value (DPV) for lakes
that are meeting the lake numeric criteria
established in EPA's final December 2010 rule
("unimpaired lakes").
The court ordered EPA to re-propose criteria for
these waters. Under the consent decree, EPA's
Administrator is required to sign a rule with
proposed criteria for these waters by November
30, 2012 (the current proposal) and to sign a
final rule by August 31, 2013. EPA is only
required to establish criteria in waters where
Florida has not established their own criteria.
On June 13, 2012, Florida submitted water
quality criteria that include numeric nutrient
criteria for certain streams in Florida to the EPA
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for review pursuant to section 303(c) of the
Clean Water Act, and EPA approved these
criteria on November 30, 2012. Therefore, under
the consent decree, EPA would no longer be
required to propose numeric criteria for these
waters.
However, due to a provision of Florida's law
and a recent legal challenge in Florida, it is
unclear whether Florida's streams criteria will
take effect. Therefore, EPA is proposing criteria
for streams not covered by Florida's criteria, but
may end up finalizing criteria for all streams in
Florida if Florida's criteria do not take effect.
About This Regulation
For this proposal, EPA is re-proposing the same
numeric total nitrogen (TN) and total
phosphorus (TP) criteria published in EPA's
final December 2010 rule with further
explanation on how the proposed criteria will
ensure the protection of Florida's streams. EPA
is also proposing DPVs that protect unimpaired
lakes from a harmful increase in nutrient levels.
Criteria for Florida Streams
EPA is providing evidence from the scientific
literature on streams outside of Florida that
harmful, adverse effects are likely to occur at
concentrations above EPA's proposed stream
criteria. This information provides additional
evidence that the criteria published in EPA's
final December 2010 rule are protective of
Florida's streams.
Downstream Protection for Unimpaired Lakes
EPA regulations implementing Clean Water Act
section 303(c) require that water quality
standards "provide for the attainment and
maintenance of the water quality standards of
downstream waters."
The proposed rule includes three approaches for
calculating DPVs to ensure the attainment and
maintenance of the water quality standards in
unimpaired lakes. These three approaches
supplement the two approaches EPA finalized in
the December 2010 rule for protection of
downstream lakes.
Florida's EPA-approved water quality criteria
also include provisions addressing downstream
protection that establish quantitative approaches
to ensure the attainment and maintenance of
downstream waters consistent with EPA's
regulations. However, the provisions themselves
do not consist of numeric values and the consent
decree requires EPA to sign rules proposing
numeric DPVs for Florida by November 30,
2012.
Therefore, EPA is proposing numeric DPVs to
comply with the consent decree. EPA has also
amended its January 2009 determination, and
will ask the court to modify the consent decree
to not require EPA to promulgate numeric DPVs
for Florida. If the court agrees, EPA will not
finalize the numeric DPVs proposed in this rule.
For More Information
Contact Mario Sengco at (202) 566-2676 or
sengco .marioigjepa. gov. or visit
http://water.epa.gov/lawsregs/rulesregs/florida_i
nland.cfm
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