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Appendix E
Status of Numerical Nutrient Water Quality
Criteria for the State of Florida
The federal Clean Water Act (CWA) requires all states to adopt water quality
standards (WQS) for the water bodies within their states. The U.S. Environmental
Protection Agency (EPA) is required to review and approve these water quality
standards. Under the CWA, water quality standards consist of both designated
uses (e.g., designated for drinking water, for shellfish harvesting, or to be fish-
able and swimmable) and the water quality criteria established to protect the
designated use. If a state water quality standard is determined to be inadequate
to comply with the requirements of the CWA, then EPA must disapprove the
standard, and if the state fails to adopt a standard that is adequate for EPA to
approve, then EPA must step in and adopt its own water quality standard for that
water body in that state. Many, but not all, water quality criteria are expressed
as numeric limitations on the concentration of particular pollutants that can be
in a particular water body without interfering with the designated use of that
water body. For many years the state of Florida has had a narrative water qual-
ity standard for nutrients in its water bodies. The narrative standard provides
that “in no case shall nutrient concentrations of a body of water be altered so
as to cause an imbalance in natural populations of flora or fauna.” However,
because it is difficult to enforce such a vague standard and because Florida’s
waters continue to be degraded by nutrient inputs, the Florida Department of
Environmental Protection (FDEP) has been under pressure for many years to
develop more specific numeric nutrient criteria.
In 2008, the Florida Wildlife Federation and four other environmental
organizations filed a lawsuit against EPA, asserting that because the state of
Florida had not yet adopted numeric nutrient criteria, the CWA obligated EPA to
establish them. The Florida Department of Agriculture and Consumer Services,
the South Florida Water Management District (SFWMD), and 11 trade associa-
tions intervened in the case. In 2009, EPA determined that because of the large
numbers of water bodies in Florida that are currently impaired by nutrients and
because the numbers of nutrient-impaired waters in Florida continue to grow,
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232 Appendix E
Florida’s existing narrative nutrient standards were not adequate and numeric
nutrient criteria for nitrogen and phosphorus were necessary. Accordingly,
EPA entered into a consent decree with the Florida Wildlife Federation and in
December 2010 published its rule for a numeric nutrient standard for inland
freshwater bodies in the state of Florida (excluding South Florida canals). EPA’s
rule established numeric criteria for chlorophyll a, total nitrogen (TN), and total
phosphorus (TP) for three categories of lakes (colored lakes, clear lakes with
high alkalinity, and clear lakes with low alkalinity) and TN and TP criteria for
streams, depending on the watershed in which the streams are located. EPA
has also indicated that it planned to propose a second rule in the future, which
would establish a numeric nutrient standard for estuaries, coastal waters, and
South Florida canals. Although EPA’s numeric nutrient standards will not apply
directly to the Everglades Protection Area, which already is subject to the
numeric criterion of 10 parts per billion (ppb) total phosphorus (TP), the estuary
and coastal waters numeric nutrient criteria may have significant implications
for the Everglades because run-off and discharge from both Lake Okeechobee
and the Everglades ultimately reach estuaries and coastal areas.
The state of Florida, the Florida Commissioner of Agriculture, the SFWMD,
and 22 other organizations brought legal challenges to EPA’s 2009 determina-
tion and numeric nutrient criteria rule. On February 18, 2012, the U.S. District
Court for the Northern District of Florida issued an order on these consolidated
cases, which “upholds the [EPA] Administrator’s determination that ‘numeric
nutrient criteria are necessary for Florida waters to meet the Clean Water Act’s
requirements,’ upholds the Administrator’s lake and spring criteria, invali-
dates the stream criteria, upholds the decision to adopt downstream protec-
tion criteria, upholds some but not all of the downstream protection criteria,
and upholds the Administrator’s decision to allow—and the procedures for
adopting— ite-specific alternative criteria.”1 Pursuant to the court’s order,
s
most of EPA’s rule has been determined to be valid and was to “take effect
on March 6, 2012—or an extended date approved by the court under . . . the
consent decree—unless by that date the provision has been superseded by a
Florida rule that the [EPA] Administrator has approved.” EPA has proposed an
extension of the effective date of the rule until October 6, 2012.2 With regard
to the two aspects of the rule that the court found to be invalid—numeric nutri-
ent criteria for Florida streams that are not in the South Florida Region, and
downstream protection criteria for unimpaired lakes—the EPA plans to issue
a revised rule by November 30, 2012.
1
Florida Wildlife Federation, Inc. et al., v. Lisa P. Jackson, etc., et al., Order on the Merits
(Consolidated Case No. 4:08cv324-RH/WCS, February 18, 2012.
2
See http://water.epa.gov/lawsregs/rulesregs/florida_inland.cfm.
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Appendix E 233
On April 22, 2011, FDEP petitioned EPA to withdraw its January 2009 deter-
mination that numeric nutrient criteria are necessary in Florida and to repeal
its November 2010 numeric nutrient criteria for lakes and streams. The FDEP
asserted that because it is committed to developing its own numeric criteria
for waters in Florida, the EPA criteria are not necessary. The petition stated that
FDEP was committed to develop and formally adopt its rule by January 2012,
followed by legislative ratification under Florida law. On June 13, 2011, EPA
sent an “Initial Response” to FDEP’s petition stating that “EPA is prepared to
withdraw the federal inland standards if FDEP adopts, and EPA approves, their
own protective and scientifically sound numeric standards.” On October 24,
2011, FDEP submitted its draft numeric nutrient criteria rule to EPA, and EPA
responded with support for FDEP’s efforts, stating its preliminary conclusion that
EPA would approve the October 2011 draft rule. EPA stated its belief “that the
proposed regulatory numeric criteria developed by FDEP represent very signifi-
cant progress in protecting the State’s unique aquatic resources.” EPA noted,
however, that final approval or disapproval of FDEP’s numeric nutrient criteria
rule would follow normal review of the rule and record.
On December 8, 2011, the Florida Environmental Regulation Commission
(ERC) modified and approved FDEP’s final rule for adoption (Chapters 62-302
and 62-303, F.A.C.; see Box E-1). The final rule approved by ERC incorporated
two rule provisions that were not included in the initial proposed rule submit-
ted to EPA on October 24, 2011: one exempting certain types of water bodies
and conveyances from the definition of “stream,” and another affirming that
the “rules shall be effective only if EPA approves these rules in their entirety,
concludes rulemaking that removes federal numeric nutrient criteria in response
to the approval, and determines, in accordance with 33 U.S.C. § 1313(c)(3),
that these rules sufficiently address EPA’s January 14, 2009 determination.”
Additional details on the amended rule are provided in Box E-1. Governor Scott
signed the bills into law in February 2012, and the Florida numeric nutrient
criteria were subsequently submitted to EPA for approval.
On December 1, 2012, the Florida Wildlife Federation and other environ-
mental groups filed an administrative rule challenge seeking to invalidate FDEP’s
proposed numeric nutrient rules, asserting that certain provisions of the rules are
invalid exercises of delegated legislative authority. The challenge asserted that,
“contrary to FDEP’s claims, the rules are not designed to protect state waters from
the adverse impacts of nutrient overenrichment. Instead, these rules go so far as
to prevent a finding of impairment due to nutrients until the waterbody is cov-
ered with nutrient-fueled toxic blue-green algae (cyanobacteria).” In June 2012,
the administrative law judge hearing the rule challenge upheld FDEP’s numeric
nutrient criteria rule. On June 13, 2012, FDEP submitted a letter to EPA enclos-
ing the administrative order upholding FDEP’s rule, stating that FDEP intends to
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234 Appendix E
BOX E-1
FDEP’s Proposed Numeric Nutrient Criteria
The FDEP numeric nutrient criteria final rule (F.A.C. 62-302.531) sets forth a com-
plex scheme of “numeric interpretations” of the existing narrative nutrient standard,
which will continue to apply to all water bodies in the state. A numeric interpretation
of the narrative standard and biological measurements are added for each water body
using a hierarchical approach, depending on whether and what type of site-specific
numeric thresholds have already been established for that water body. There are three
main standards under this hierarchy. Under the first standard, “where a site specific
numeric interpretation of the [narrative] criterion [. . . ] has already been established by
the Department, this numeric interpretation shall be the primary interpretation.” Where
there are multiple such interpretations for a water body, the rule dictates that FDEP’s
most recent interpretation shall apply. The rule identifies the following as the primary
site-specific interpretations: total maximum daily loads (TMDLs) “that interpret the narra-
tive water quality criterion for [. . . ] one or more nutrients or nutrient response variables”
listed in the rules; “site specific alternative criteria (SSAC) for one or more nutrients or
nutrient response variables” established in the rules; “estuary-specific umeric interpre-
n
tations of the narrative nutrient criterion established” in the rules; or “other site-specific
interpretations for one or more nutrients or nutrient response variables that are formally
established by rule or final order” by FDEP. If the first standard is not applicable for a
specific water body, under the second standard the numeric interpretation of the nar-
rative criteria would be based on “an established, quantifiable cause-and-effect rela-
tionship” between nutrient concentrations and impacts to the aquatic biology. The rule
establishes no numeric nutrient threshold for streams in the South Florida region; the
narrative criterion continues to apply to streams in this area. The FDEP rule excludes
certain man-made ditches, canals, and other conveyances, as well as wetlands, certain
non-perennial water segments, portions of streams that exhibit lake characteristics, and
tidally influenced stream segments from the definition of “stream” within the rule; as
such, the narrative standard continues to apply to these bodies until numeric interpreta-
tions can be scientifically established.
move forward to adopt numeric nutrient criteria for coastal and estuarine waters
and urging EPA to favorably consider FDEP’s petition requesting that EPA repeal
its federally promulgated rule. As of May 2012, EPA had not yet responded to
FDEP’s request. If EPA finds FDEP’s rule to be adequate and thus repeals the
federal rule, the FDEP rules will be the governing numeric nutrient criteria rule.
If EPA finds FDEP’s Rule to be inadequate and declines to repeal the federal
rule, the portions of the EPA Rule upheld by the court will go into effect. EPA
has proposed an extension of the effective date of that rule until October 2012.
