Kenny Hayman The Environmental Protection Agency (EPA) has announced its intent to adopt numeric nutrient criteria for Florida’s water bodies (lakes, streams, canals and estuaries). The criterion is unprecedented in the nation and has drawn national attention to Florida’s water quality programs. The panel will discuss the legal genesis of this proposed rule, including the most up to date developments in the state legislature and Congress; its technical aspects, including the scientific basis for the rule; implementation and relief mechanisms; and the criteria’s impact on Florida’s current permitting programs, as well as its impact on a wide variety of stakeholders in Florida.

1. Florida’s Numeric Nutrient Criteria Development Efforts By: Florida Department of Environmental Protection Kenny Hayman Senior Assistant General Counsel September, 2011

2. FDEP Petition to EPA March 16, 2011: EPA Memo outlines 8 elements of a State Framework for Nutrient Reductions April 22, 2011: FDEP Petitions EPA to Rescind Determination to Promulgate Criteria in Florida Rescind Promulgated Criteria Petition based on Florida performance against the 8 elements and includes initiation of rule development for State standards. EPA’s initial response did not grant or deny. Still lobbying EPA to grant Petition.

4. Conceptual Structure: General The narrative nutrient criteria would continue to apply to all waterbodies, and numeric interpretations would be applied based on the scientific information available The narrative would be implemented using a systematic structure that numerically interprets the narrative nutrient criteria for each waterbody in a hierarchical manner

5. Nutrients Need a New Conceptual Model Nutrients are typically not toxic, and effects on aquatic ecosystems are moderated in their expression by many natural site specific factors light penetration, hydraulic residence time, presence of grazers, and habitat considerations

6. Nutrient Expression Is Site-Specific DEP has extensively studied nutrients in Florida and found there is considerable variability and uncertainty in predicting nutrient effects in many aquatic systems Makes broad based numeric criteria development more complicated than for most pollutants (e.g., toxic substances) Only statistically weak relationships were found between nutrients and biological effects in streams Wide range of TP and TN can produce same chlorophyll response in lakes

7. Guiding Scientific and Policy Principles Numeric interpretations are most accurate when determined as a site-specific function Therefore, nutrient Total Maximum Daily Loads (TMDLs), Site Specific Alternative Criteria (SSAC), and other site specific actions written to achieve the narrative nutrient criteria should be given preference over more broadly applicable interpretations

8. Guiding Scientific and Policy Principles (cont.) Absent site-specific analyses, criteria based on a quantifiable linkage between anthropogenic nutrient enrichment and a biological response can be used to numerically interpret the narrative nutrient criteria

9. Guiding Scientific and Policy Principles (cont.) There is value in knowing whether nutrient concentrations are potentially elevated to environmentally harmful levels, but it is important to identify adverse biological effects and determine they are linked to nutrients before deciding that nutrient reductions should be pursued

10. FDEP Draft Rule Concept Hierarchy of Site Specific Numeric Interpretation of Narrative Nutrient Criterion Nutrient TMDLs, SSACs, and WQBELs Cause and Effect Relationships (Lakes & Springs) Reference-based thresholds combined with biological data to evaluate attainment Narrative standard continues where numeric interpretation is unavailable. (e.g., wetlands, intermittent streams, highly colored lakes)

11. Potential Use of Reference Values Biology (1) Healthy Not Healthy A C Does not attain Aquatic Life Use Support. Attains narrative nutrient criteria unless stressor ID links adverse effects to nutrients. Meet Threshold Attains narrative nutrient criteria. Nutrients B D Does not attain narrative nutrient criteria unless stressor ID shows nutrients are not causative pollutant. Attains narrative nutrient criteria. Exceed Threshold (1) If biological data are not available, but nutrient threshold exceeded, water placed on IWR’s “study list”.

12. Lakes and Springs Criteria Lakes criteria allows for modified criteria for TN and TP, within a specified range, if chl a is met on annual basis (with minimum data requirements. Numeric criteria for spring vents – 0.35 mg/L (same as EPA)

13. Some of the Differences Between FDEP’s Proposal and EPA’s Rule Biological confirmation component for Hierarchy 3 streams Nutrient TMDLs as site specific criteria FDEP relies solely on the narrative for high colored lakes (i.e. > 140 PCUs) DEP sets forth clear pathway for obtaining site specific alternative criteria Downstream Protection Values Concurrent amendments to Impaired Waters Rule

14. Projected Schedule Rule Development September 13 (Leesburg) and 14 (Tallahassee) – Workshops on Revised Draft Language October 4, 2011 (Naples) – Workshop on Subset of Estuaries (Clearwater Harbor, Tampa Bay, Sarasota Bay, Charlotte Harbor, the Ten Thousand Islands area, Biscayne Bay, Florida Bay, and the Florida Keys) Rule Making (Undecided) ERC Briefing - November 2011 ERC Adoption – December 2011 Legislative Ratification – 2012 Session

15. Designated Use Reclassification On Sept. 6, EPA approved new Class III – Limited In 2011, the Florida House proposed significant amendments to Florida’s current designated use structure (Did not pass Senate)

16. For More Information: FDEP’s Nutrient Numeric Criteria Development Website: http://www.dep.state.fl.us/water/wqssp/ nutrients/index.htm