Rule 62-302.540, F.A.C., was established effective July 15, 2004, to provide a numeric phosphorus criterion for the Everglades Protection Area. On July 29, 2008, a Federal Court ruled that portions of Rule 62-302.540, F.A.C., were inconsistent with ...

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Rule No.: RULE TITLE
62-302.540: Water Quality Standards for Phosphorus Within the Everglades Protection Area
PURPOSE AND EFFECT: Rule 62-302.540, F.A.C., was established effective July 15, 2004, to provide a numeric phosphorus criterion for the Everglades Protection Area. On July 29, 2008, a Federal Court ruled that portions of Rule 62-302.540, F.A.C., were inconsistent with the Federal Clean Water Act. Upon re-review, the U.S. Environmental Protection Agency (USEPA) disapproved those portions of Rule 62-302.540, F.A.C.
SUMMARY: The Department is amending Rule 62-302.540, F.A.C., to revise the Everglades phosphorus rule to ensure consistency with Federal Clean Water Act requirements. A number of provisions in Rule 62-302.540, F.A.C., are deleted that were disapproved by USEPA. There are no substantive additions to the existing rule text.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Costs was prepared because the rule amendments will not impact small business.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 373.043, 373.4592, 403.061 FS.
LAW IMPLEMENTED: 373.016, 373.026, 373.4592, 403.021(11), 403.061, 403.201 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Thursday, October 21, 2010, 9:00 a.m.
PLACE: Florida Department of Environmental Protection, 3900 Commonwealth Blvd., Conference Room A, Tallahassee, Florida 32399-2400
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Eric Shaw at [phone] or the below information. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Eric Shaw, Department of Environmental Protection, Bureau of Assessment and Restoration Support, MS 6511, 2600 Blair Stone Road, Tallahassee, FL 32399-2400, [phone] or e-mail: [e-mail]. Copies of the draft rule as well as further information also may be obtained from the Department’s internet site at: http://www.dep.state.fl.us/water/wqssp/everglades/index.htm. (OGC No. 10-2103)

THE FULL TEXT OF THE PROPOSED RULE IS:

62-302.540 Water Quality Standards for Phosphorus Within the Everglades Protection Area.

(1) Purpose and Scope. The water quality standards adopted by this rule include all of the following elements:

(a) The purpose of this rule is to implement the requirements of the Everglades Forever Act by utilizing the powers and duties granted the Department under the Act and other applicable provisions of Chapter 373 and 403, F.S., to establish water quality standards for phosphorus, including a numeric phosphorus criterion, within the EPA.

(b) The water quality standards adopted by this rule include all of the following elements:

(a)1. No change.

2. Establishment of moderating provisions for permits authorizing discharges into the EPA in compliance with water quality standards, including the numeric phosphorus criterion; and

(b)3. No change.

(2) Findings.

(a) No change.

(b) Best Management Practices (BMPs) have reduced phosphorus loads from the Everglades Agricultural Area to the EPA by more than twice the amount required by existing rules. Stormwater Treatment Areas (STAs) have reduced phosphorus concentrations to less than the goal of 50 ppb established in the Everglades Forever Act.

(c) While a significant percentage of the EPA currently meets the numeric phosphorus criterion, further efforts are required to achieve the criterion in the remaining impacted areas of the EPA.

(d) Even as water quality continues to improve, restoration will be a long-term process because of historic phosphorus accumulations found in sediments within impacted areas. This phosphorus can diffuse back into the water column, a phenomenon the Department recognizes as reflux.

(e) The Basin-Specific Feasibility Studies completed by the District considered environmental factors, implementation cost, scheduling, and technical factors in evaluating measures to reduce phosphorus levels entering the EPA. These studies and other information provided to the Commission show that:

1. At this time, chemical treatment technology is not cost-effective for treating discharges entering the EPA and poses the potential for adverse environmental effects.

2. Optimization of the existing STAs, in combination with BMPs, is currently the most cost-effective and environmentally preferable means to achieve further phosphorus reductions to the EPA, and to restore impacted areas. The effectiveness of such measures should be determined and maximized prior to requiring additional measures. Optimization shall take into consideration viable vegetative technologies, including Periphyton-based STAs that are found to be cost-effective and environmentally acceptable.

(f) The District and the Department recognize that STA and BMP optimization requires a sustained commitment to construct, implement, stabilize and measure phosphorus reduction benefits.

(b)(g) No change.

(h) The Long-Term Plan constitutes a comprehensive program to optimize the STAs and BMPs to achieve further phosphorus reductions and thereby accomplish implementation of Best Available Phosphorus Reduction Technology (BAPRT).

(i) through (k) renumbered (c) through (e) No change.

(l) The Commission finds that this rule must incorporate a flexible approach towards the application of the numeric phosphorus criterion for phosphorus in order to guide the implementation of phosphorus reductions in the Everglades Protection Area. Chapter 403, F.S., the Everglades Forever Act and U.S. Environmental Protection Agency regulations set forth at 40 CFR Part 131 include general policies that authorize such flexibility under appropriate circumstances, including those described in paragraphs (c) through (h) and (k) above. The Commission has exercised this authority by including in this rule both a numeric interpretation of the phosphorus criterion and the various other standard setting provisions of this rule, including the permitting and moderating provisions.

(3) Definitions.

(a) “Best Available Phosphorus Reduction Technology” (BAPRT) shall be as defined by Section 373.4592(2)(a), F.S. BMPs shall maintain and, where practicable, improve upon the performance of urban and agricultural source controls in reducing overall phosphorus levels. Agricultural BMPs within the Everglades Agricultural Area and the C-139 Basin shall be in accordance with Chapters 40E-61 and 40E-63, F.A.C. STA phosphorus reductions shall be improved through implementation of optimization measures as defined by Section 373.4592(2)(l), F.S. BAPRT may include measures intended to reduce phosphorus levels in discharges from a single basin or sub-basin, or a program designed to address discharges from multiple basins.

(b) “Long-Term Plan” shall be as defined by Section 373.4592(2)(j), F.S.

(c) through (e) renumbered (a) through (c) No change.

(f) “Optimization” shall be as defined by Section 373.4592(2)(l), F.S.

(d)(g) No change.

(h) “Technology-based effluent limitation” or “TBEL” shall be defined in Section 373.4592(2)(p), F.S.

(e)(i) No change.

(4) Phosphorus Criterion.

(a) through (c) No change.

(d) Achievement of the Criterion in WCA-1, WCA-2 and WCA-3.

1. No change.

2. Achievement of the criterion shall be determined based on data collected monthly from the network of monitoring stations in the impacted area. Impacted Areas of the water body will have achieved the criterion if the five year geometric mean averaged across all stations is less than or equal to 10 ppb. In order to provide protection against imbalances of aquatic flora or fauna, the following provisions must also be met:

a. through b. No change.

c. The annual geometric mean at all individual stations is less than or equal to 15 ppb. Individual station analyses are representative of only that station.

If these limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (6) below are met. Notwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted for purposes of this rule if the five-year geometric mean is less than or equal to 10 ppb and the annual geometric mean is less than or equal to 15 ppb.

(e) through (f) No change.

(5) Long-Term Compliance Permit Requirements for Phosphorus Discharges into the EPA.

(a) In addition to meeting all other applicable permitting criteria, an applicant must provide reasonable assurance that the discharge will comply with state water quality standards as set forth in this section.

(a)(b) Discharges into the EPA shall be deemed in compliance with state water quality standards upon a demonstration that phosphorus levels in the discharges will be at or below the phosphorus criterion set forth in this rule.:

1. Phosphorus levels in the discharges will be at or below the phosphorus criterion set forth in this rule; or

2. Discharges will not cause or contribute to exceedences of the phosphorus criterion in the receiving waters, the determination of which will take into account the phosphorus in the water column that is due to reflux; or

3. Discharges will comply with moderating provisions as provided in this rule.

(b)(c) No change.

(d) Discharge limits for permits allowing discharges into the EPA shall be based upon TBELs established through BAPRT and shall not require water quality based effluent limitations through 2016. Such TBELs shall be applied as effluent limitations as defined in subsection 62-302.200(10), F.A.C.

(6) Moderating Provisions. The following moderating provisions are established for discharges into or within the EPA as a part of state water quality standards applicable to the phosphorus criterion set forth in this rule:

(a) Net Improvement in Impacted Areas.

1. Until December 31, 2016, discharges into or within the EPA shall be permitted using net improvement as a moderating provision upon a demonstration by the applicant that:

a. The permittee will implement, or cause to be implemented, BAPRT, as defined by Section 373.4592(2)(a), F.S., and further provided in this section, which shall include a continued research and monitoring program designed to reduce outflow concentrations of phosphorus; and

b. The discharge is into or within an impacted area.

2. BAPRT shall use an adaptive management approach based on the best available information and data to develop and implement incremental phosphorus reduction measures with the goal of achieving the phosphorus criterion. BAPRT shall also include projects and strategies to accelerate restoration of natural conditions with regard to populations of native flora or fauna.

3. For purposes of this rule, the Long-Term Plan shall constitute BAPRT. The planning goal of the Long-Term Plan is to achieve compliance with the criterion set forth in subsection (4) of this rule. Implementation of BAPRT will result in net improvement in impacted areas of the EPA. The Initial Phase of the Long-Term Plan shall be implemented through 2016. Revisions to the Long-Term Plan shall be incorporated through an adaptive management approach including a Process Development and Engineering component to identify and implement incremental optimization measures for further phosphorus reductions.

4. The Department and the District shall propose amendments to the Long-Term Plan as science and environmental conditions warrant. The Department shall approve all amendments to the Long-Term Plan.

5. As part of the review of permit applications, the Department shall review proposed changes to the Long-Term Plan identified through the Process Development and Engineering component of the Long-Term Plan to evaluate changes necessary to comply with this rule, including the numeric phosphorus criterion. Those changes which the department deems necessary to comply with this rule, including the numeric phosphorus criterion, shall be included as conditions of the respective permit or permits for the structures associated with the particular basin or basins involved. Until December 31, 2016, such permits shall include technology-based effluent limitations consistent with the Long-Term Plan.

(b) Hydropattern Restoration. Discharges into or within unimpacted areas of the EPA shall be permitted for hydropattern restoration purposes upon a demonstration by the applicant that:

1. The discharge will be able to achieve compliance with the requirements of sub-subparagraph (6)(a)1.a. above;

2. The environmental benefits of establishing the discharge clearly outweigh the potential adverse impacts that may result in the event that phosphorus levels in the discharge exceed the criterion; and

3. The discharge complies with antidegradation requirements.

(c) Existing Moderating Provisions. Nothing in this rule shall eliminate the availability of moderatig provisions that may otherwise exist as a matter of law, rule or regulation.

(7) through (8) renumbered (6) through (7) No change.

Rulemaking Specific Authority 373.043, 373.4592, 403.061 FS. Law Implemented 373.016, 373.026, 373.4592, 403.021(11), 403.061, 403.201 FS. History–New 7-15-04, Amended 5-25-05,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Jerry Brooks
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Michael W. Sole
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 25, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: March 26, 2010