The department is amending Chapter 62-303, F.A.C., to update the listing methodology for assessing human health-based water quality criteria as part of the process to identify impaired surface waterbodies. This rulemaking is being conducted in ...

Notice of Proposed Rule

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62-303.310Evaluation of Aquatic Life Use Support

62-303.360Primary Contact and Recreation Use Support

62-303.370Fish and Shellfish Consumption Use Support

62-303.380Drinking Water Use Support and Protection of Human Health

62-303.390The Study List

62-303.480Drinking Water Use Support and Protection of Human Health

62-303.500Prioritization for TMDL Development

62-303.720Delisting Procedure

PURPOSE AND EFFECT: The department is amending Chapter 62-303, F.A.C., to update the listing methodology for assessing human health-based water quality criteria as part of the process to identify impaired surface waterbodies. This rulemaking is being conducted in conjunction with rulemaking to revise the human health-based criteria in Chapter 62-302, F.A.C. (noticed under a separate rulemaking notice). The proposed revisions to Chapter 62-303, F.A.C., are designed to revise the assessment methodology to be consistent with the proposed change in the expression of the human health-based water quality criteria for non-carcinogens from single sample maximums to annual averages (proposed concurrently as changes to Chapter 62-302, F.A.C.) and to add a minimum sample size for the calculation of an annual average. Additionally, in accordance with the requirements of paragraph 403.061(29)(b) and paragraphs 403.861(21)(a) and (b), Florida Statutes, enacted under Chapter 2016-01, Laws of Florida, the department is proposing to establish a new sub-classification of surface waters (Class I-Treated, Treated Potable Water Supplies), which will require minor revisions in Chapter 62-303, F.A.C. Specifically, the department plans to revise a number of rules in Chapter 62-303, F.A.C., to clarify that Class I waters include both “Class I” (existing Class I waters) and “Class I-Treated” (Treated Potable Water Supply waters).

SUMMARY: The department is proposing to update the listing methodology for assessing human health-based water quality criteria in Chapter 62-303, F.A.C., as part of the process to identify impaired surface waterbodies. The department is also amending Chapter 62-303, F.A.C., to revise the methodology for identifying impaired surface waters to provide for the assessment of a new sub-classification of waters for Treated Potable Water Supplies (Class I-Treated). The Department conducted public workshops on May 10, 11, and 12, 2016, in Stuart, Orlando, and Tallahassee, respectively.

OTHER RULES INCORPORATING THIS RULE: Chapter 62-303, F.A.C., is referenced by the following rules: 62-40.210, 62-40.430, 62-40.540, 62-302.300, 62-302.530, 62-302.531, 62-302.800, 62-303.100, 62-303.150, 62-303.200, 62-303.300, 62-303.310, 62-303.320, 62-303.330, 62-303.350, 62-303.351, 62-303.352, 62-303.353, 62-303.354, 62-303.360, 62-303.370, 62-303.380, 62-303.390, 62-303.400, 62-303.410, 62-303.420, 62-303.430, 62-303.450, 62-303.460, 62-303.470, 62-303.480, 62-303.500, 62-303.600, 62-303.700, 62-303.710, 62-303.720, 62-303.810, 62-304.100, 62-305.200, 62-672.780, F.A.C. Rule 62-303.100 is referenced by the following rules: 62-302.300, and 62-303.100, F.A.C. Rule 62-303.310 is referenced by the following rule: 62-303.310, F.A.C. Rule 62-303.360 is referenced by the following rules: 62-303.360, 62-303.390, and 62-303.720, F.A.C. Rule 62-303.370 is referenced by the following rule: 62-303.370, F.A.C. Rule 62-303.380 is referenced by the following rules: 62-303.380, 62-303.480 and 62-303.720, F.A.C. Rule 62-303.390 is referenced by the following rules: 62-302.300, 62-303.200, 62-303.390, and 62-303.450, F.A.C. Rule 62-303.480 is referenced by the following rules: 62-303.480 and 62-303.720, F.A.C. Rule 62-303.500 is referenced by the following rule: 62-303.500, F.A.C. Rule 62-303.720 is referenced by the following rule: 62-303.720, F.A.C.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Chapter 62-303 sets forth a scientific assessment methodology for the identification of impaired surface waters. The rule chapter is implemented by existing Department staff, and there is no additional cost to the public or the Department as a result of the proposed revisions. The proposed amendments to Chapter 62-303 are not anticipated to have adverse impact on economic growth, private sector job creation or employment, private sector investment, business competitiveness, or regulatory costs.

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.

RULEMAKING AUTHORITY: 403.061, 403.067 FS.

LAW IMPLEMENTED: 403.062, 403.067 FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Tuesday, July 26, 2016, 9:00 a.m.

PLACE: Florida Department of Environmental Protection, Marjory Stoneman Douglas Building, Conference Room A, 3900 Commonwealth Boulevard, Tallahassee, Florida

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, Water Quality Standards Program, MS 6511, 2600 Blair Stone Road, Tallahassee, FL 32399-2400, [phone] or e-mail: [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

CHAPTER 62-303

IDENTIFICATION OF IMPAIRED SURFACE WATERS

62-303.310 Evaluation of Aquatic Life Use Support.

A Class I, I-Treated, II, III, or III-Limited water shall be placed on the Planning List for assessment of aquatic life use support (propagation and maintenance of a healthy, well-balanced population of fish and wildlife) if, based on sufficient quality and quantity of data, the waterbody:

(1) through (3) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 7-2-12, 2-17-16,            .

 

62-303.360 Primary Contact and Recreation Use Support.

(1) A Class I, I-Treated, II, III or III-Limited (if primary contact and recreational use is not limited) water shall be placed on the Planning List for evaluating primary contact and recreation use support based on bacteriological data if:

(a) through (b) No change.

(2) A Class I, I-Treated, II, III, or III-Limited water shall be placed on the Planning List for evaluating primary contact and recreation use support based on bathing area closures, advisories, or warnings issued by a local health department or county government if:

(a) through (c) No change.

(3) through (4) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 9-4-07, 8-1-13, 2-17-16,       .

 

62-303.370 Fish and Shellfish Consumption Use Support.

(1) A Class I, I-Treated, II, III or III-Limited water shall be placed on the Planning List for fish consumption if there is either a limited or no consumption fish consumption advisory, issued by the DOH, or other authorized governmental entity, in effect for the water segment.

(2) through (3) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 9-4-07, 8-1-13, 2-17-16,        .

 

62-303.380 Drinking Water Use Support and Protection of Human Health.

(1) A Class I or Class I-Treated water shall be placed on the Planning List for potential impairment of drinking water use support and the protection of human health based on bacteriological data if:

(a) There is a sufficient number of E. coli samples from the water segment that do not meet the applicable Class I or Class I-Treated water quality criteria for bacteriological quality expressed as a Ten Percent Threshold Value (TPTV) based on the methodology described in Rule 62-303.320, F.A.C. Data must meet the requirements of subsections and paragraphs 62-303.320(2), (3), (4)(e)-(g), (8), and (9), F.A.C. Samples collected on different days will be assessed as individual samples and samples collected on the same day shall be averaged; or

(b) No change.

(2) A Class I or Class I-Treated water shall be placed on the Planning List for potential impairment of drinking water use support and the protection of human health based on information provided by public water systems if a public water system demonstrates to the Department that either:

(a) Annual treatment Treatment costs to meet applicable drinking water standards criteria have increased by at least 25% to treat contaminants, that exceed Class I criteria or to treat blue-green algae, or other nuisance algae in the source water; or

(b) No change.

(c) When determining increased treatment costs under paragraphs (2)(a) or (2)(b) above, costs due solely to new, more stringent drinking water requirements, inflation, or increases in costs of materials shall not be included.

(3) A water shall be placed on the Planning List for potential impairment of drinking water use support or the protection of assessment of the threat to human health if:

(a) through (b) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 9-4-07, 8-1-13, 2-17-16,          .

62-303.390 The Study List.

(1) No change.

(2) A Class I, I-Treated, II, III or Class III-Limited water shall be placed on the Study List if:

(a) through (h) No change.

(3) through (10) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 7-2-12, Amended 2-17-16,___        _______.

 

62-303.480 Drinking Water Use Support and Protection of Human Health.

If the water segment was listed on the Planning List due to exceedances of a human health-based water quality criterion, the Department shall re-evaluate the data using the methodology in subsections 62-303.380(1) and (3), F.A.C., and limit the analysis to data collected within 7.5 years of the time the water segment is proposed for listing on the Verified List. Data older than 7.5 years shall be used if it is demonstrated to be representative of current conditions. Any determinations to use older data shall be documented by the Department, and the documentation shall provide the basis for the decision that the data are representative of current conditions. For this analysis, the Department shall exclude any data meeting the requirements of subsection 62-303.420(5), F.A.C. The following water segments shall be listed on the Verified List:

(1)For human health-based criteria expressed as maximums, water segments that meet the requirements in subsection 62-303.420(6) (7), F.A.C., or

(2)  For human health-based criteria expressed as annual averages, water segments that have an annual average that exceeds the applicable criterion.  To calculate an annual average for the Verified List assessment, there shall be at least three samples per year, with samples from at least three different quarters of the same year.

(3) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 9-4-07, 8-1-13, 2-17-16,        .

 

62-303.500 Prioritization for TMDL Development.

(1) No change.

(2) The following waters shall be designated high priority:

(a) Water segments where the impairment poses a threat to potable water supplies, treated potable water supplies, or to human health.

(b) No change.

(3) The following waters shall be designated low priority:

(a) Man-made canals, urban drainage ditches, and other artificial water segments unless the impairment poses a threat to potable water supplies, treated potable water supplies, or to human health.

(b) No change.

(4) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 8-1-13, 2-17-16,        .

 

62-303.720 Delisting Procedure.

(1) No change.

(2) Waterbody segments shall be removed from the State’s Verified List only after adoption of a TMDL, a Department determination that pollution control programs provide reasonable assurance that water quality standards will be attained pursuant to Rule 62-303.600 F.A.C., or upon a demonstration that the waterbody meets the waterbody quality standard that was previously established as not being met.

(a) through (f) No change.

(g) For waters listed based on impacts to potable water supplies or treated potable water supplies pursuant to paragraph 62-303.380(1)(b), F.A.C., the water shall be delisted when the causes resulting in higher treatment costs have been ameliorated.

(h) through (q) No change.

(3) No change.

Rulemaking Authority 403.061, 403.067 FS. Law Implemented 403.062, 403.067 FS. History–New 6-10-02, Amended 12-11-06, 9-4-07, 7-2-12, 8-1-13, 2-17-16,         .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Tom Frick

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jonathan P. Steverson

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 17, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 25, 2016