Transcript EPA’s proposed numeric nutrient criteria for Florida: How

Some Context behind the
Implementation of Numeric
Nutrient Criteria
or
Why do we have these Water
Quality Regulations?
Mark W. Clark and Thomas Obreza
Soil and Water Science Department
University of Florida, Gainesville
April 20, 2012
Overview




Federal Clean Water Act
State Designated Uses
Protective Criteria
Implications of Impairment
Water Quality Issues of the Past
Cuyahoga River 1969
Clean Water Act 1972

As part of the Federal Clean Water Act
1972, USEPA requested states develop:



Designated uses for waters of the state (lakes,
reservoirs, rivers, streams, estuaries and
wetlands),
Criteria that would protect designated uses,
Corrective process that would be implemented if
a designated use was not being met (i.e. if the
waterbody was determine to be “impaired”)
Designated Uses for
Florida Waterbodies






Class I – Potable Water Supplies
Class II – Shellfish Propagation or Harvesting
Class III – Recreation, Propagation and Maintenance
of a Healthy, Well-Balanced Population of Fish and
Wildlife
Class III-Limited – Fish Consumption; Recreation or
Limited Recreation; and/or Propagation and
Maintenance of a Limited Population of Fish and
Wildlife
Class IV – Agricultural Water Supplies
Class V – Navigation, Utility and Industrial Use
F.A.C. Chapter 62-302 Surface Water Quality Standards
http://www.dep.state.fl.us/legal/rules/shared/62-302.pdf
Approaches to Protect Designated
Use

Criteria



A standard, rule, or test on which a
judgment or decision can be based
Concentration or measurement that is
protective of the intended uses of the
water
Types of Criteria:


Numeric
Narrative
Example of Numeric Criteria
Dissolved Oxygen Criteria (Current)

Class I


Class II


Shall not average less than 5.0 in a 24-hr period
and shall never be less than 4.0.
Class III



Shall not be less than 5.0.
Fresh-Shall not be less than 5.0.
Marine-Shall not average less than 5.0 in a 24-hr
period and shall never be less than 4.0.
Class IV

Shall not average less than 4.0 in a 24-hr period
and shall never be less than 3.0.
Example of “Narrative” Nutrient
Standard

Rule 2-302.530 FAC

“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”
Assessment and Reporting of
State Water Quality



Continuous monitoring of state waters
Biannual reporting of state water
quality referenced against standards
for specific designated use.
305(b) list sent to USEPA indicating
those water bodies that “potentially do
not attain” designated use.
Motivation for “Numeric” Criteria National Water Quality Assessment

The National Water Quality Inventory (1996 report to
congress) cites nutrients (nitrogen and phosphorus) as one
of the leading causes of water quality impairment in our
Nation's rivers, lakes and estuaries.




40% of the rivers were impaired due to nutrient enrichment;
51% percent of the surveyed lakes, and
57% of the surveyed estuaries were similarly adversely affected.
Nutrients have also been implicated with both the large
hypoxic zone in the Gulf of Mexico, hypoxia observed in
several East Coast States, and Pfiesteria-induced fish kills
and human health problems in the coastal waters of several
East Coast and Gulf States.
EPA’s National Strategy for the
Development of Regional Nutrient Criteria



In 1998 EPA rolled out the National Strategy
for Development of Regional Nutrient Criteria
to encourage all states and tribes to adopt
numeric nutrient water quality criteria.
2002 FDEP and EPA agreed on plan to
establish numeric nutrient criteria.
Between 2002 and 2009 FDEP spent over 20
million dollars developing numeric criteria.
Quality of State Waters
Florida Water Quality Assessment 2002 305(b) report
Estuary Impacts
Florida Water Quality Assessment 2002 305(b) report
Lake Impacts
Florida Water Quality Assessment 2002 305(b) report
Stream Impacts
Florida Water Quality Assessment 2002 305(b) report
Quality of Florida Waters 2010
1,9180 miles of rivers and streams (8%)
 378,435 acres of lakes (26%)

2010 Integrated Water Quality Assessment for Florida Report
Nutrients were the first and second reason for listing
lakes and estuaries as impaired (based on narrative
standard) and the fourth reason for listing streams
(after Dissolved Oxygen, mercury and fecal coliform)

549 nutrient related TMDL’s
Lawsuit from Earthjustice

On behalf of several environmental
organizations of Florida, a suit in July 2008
claimed that:



There was an unacceptable delay by the federal
government to set limits for nutrient pollution.
Claimed that EPA had previously determined the
need for numeric criteria under the CWA.
Argued that EPA was obligated to promptly
propose criteria for Florida.
Timeline of EPA NNC
Implementation in Florida

January 26, 2010



EPA published Proposed “Water Quality
Standards for the State of Florida’s Lakes
and Flowing Waters” (75 FR 4173).
EPA conducted 13 public hearing
sessions in six cities in Florida and held a
90-day public comment period following
publication of the proposed rule.
22,000 public comments on the proposed
rule
EPA Final Rule

November 14, 2010


February 4, 2011


Implementation of Site-Specific Alternative Criteria (SSAC)
provision
March 6, 2012


EPA Administrator signed Final “Water Quality Standards for
the State of Florida’s Lakes and Flowing Waters.” (did not
include S. Florida flowing waters)
Initial Implementation date of final rule extended for 15
months to allow cities, towns, businesses and other
stakeholders as well as the State of Florida a full opportunity
to review the standards and develop flexible strategies for
implementation.
March 5, 2012

EPA promulgated an extension of the effective date of this
rule by 4 months to July 6, 2012
Florida’s Alternative Rule

April 22, 2011


November 10, 2011


FDEP asked EPA to withdraw the
determination. EPA did not approve or
deny request, June 13, 2011
FDEP proposes alternative rule
December 8, 2011

Alternative rule approved by Florida
Environmental Regulation Commission
(Adoption of Nutrient Standards)
Florida’s Alternative Criteria
Passed into Law

December 9, 2012


January 24, 2012


FDEP submits amendments to chapters 62-302 and 62303, F.A.C. (numeric nutrient standards)
Florida House approves amendments
February 10, 2012

Florida Senate approves amendments

February 16, 2012
 Governor signs Water Quality Criteria into law

Pending EPA approval
Is this the end?



That was just for inland waters north of
Lake Okechobee
Rule for estuaries, coastal waters and
flowing waters in the South Florida
Region is currently due to be proposed
by EPA May 21, 2012.
Rule for wetlands has not even been
discussed.
Some Pro’s and Con’s of
Narrative vs Numeric Criteria

Narrative criteria

Pro’s


Con’s



Allows for site specific interpretation
Waterbody is already impaired by the time narrative criteria
of impairment is met
Threshold of impairment is somewhat subjective
Numeric Criteria

Pro’s



Threshold of impairment is a “bright line”
Makes establishing TMDL easier if impairment occurs
Con’s

Initial criteria determination is rarely site specific and prone
to under or over protection of waterbody.
New Numeric Nutrient Criteria





New criteria will not automatically restrict the use of
fertilizer.
New criteria will not change the designated use of a
water body.
New criteria will establish a “brighter line” to evaluate
potential nutrient impacts to state waters.
New criteria will likely be used to establish discharge
permit levels for point sources.
New criteria will increase the number of water bodies
listed as impaired
Impaired Waterbody



What if a water body does not meet protective
criteria – i.e. “potentially does not attain
designated use”?
Section 303(d) of the Clean Water Act (CWA)
requires states to submit lists of surface waters
that do not meet applicable water quality
standards (impaired waters)
The Florida Watershed Restoration Act (1999)
clarified FDEP’s authority for the TMDL
program and directed the Department to
develop a methodology, to implement.
How do you know if you are in a
TMDL watershed?
http://www.dep.state.fl.us/water/tmdl/index.htm
FDEP’s Watershed Management
Approach - Five Phase Cycle

Phase 1: Watershed Evaluation, evaluate status of the quality of
surface water and groundwater to identify potentially impaired
waters for which TMDL’s may be needed.

Phase 2: Strategic Monitoring, verification of listing as impaired
and to collect data for TMDL development

Phase 3: Developing and Adopting TMDL’s, prioritization of
impaired waters then development and adoption of TMDL for basin.

Phase 4: Developing Watershed Management Plans, plan
specifying how pollutant loadings from point and nonpoint sources
of pollution will be allocated and reduced in order to meet TMDL
requirements. (BMAP)

Phase 5: Implementing Watershed Management Plans,
implementation of Phase 4
Basin
Rotation
What if a Waterbody is
Verified Impaired?
1.
2.
3.
Determine source of Impairment
low dissolved oxygen level
excessive algae growth
excess nutrient load
Determine threshold concentration or load of
pollutant that will still maintain waterbody
designated use (assimilative capacity or Total
Maximum Daily Load)
Determine existing load to waterbody
Example relationship
between limiting nutrient
(P)and chlorophyll-a
Mean TP vs. Algal blooms over 40ug/L (Walker and Havens 1995)
Determine Nutrient Budget
How much can be added and
still maintain target water
column concentration?
Surface Inputs
How much is
presently being
added?
Atmospheric
Inputs
Water Column
target concentration
(100ppb
ppb)
40
Internal Loading
(recycling)
Sediment
Surface Outflows
TMDL includes a Margin of Safety

A margin of safety (MOS) is required as part of a TMDL in
recognition that there are many uncertainties in scientific
and technical understanding of the chemical and biological
processes that occur.

The MOS is intended to account for such uncertainties in a
conservative manner that protects the environment.

According to EPA’s guidance, a MOS can be achieved
through reserving a portion of the load for the future, or
using conservative assumptions in calculating the load.

TMDL = ∑Point Sources + ∑Nonpoint Sources + Margin of
Safety
Nutrient Load Reduction



TMDL is the assimilative capacity of a
watershed and waterbody while still
protecting the designated use.
The Difference between actual loading
and TMDL is the load that needs to be
reduced.
Load reduction required needs to be
allocated among stakeholders.
Basin Management Action Plan



A Basin Management Action Plan (BMAP) is the
primary tool to go about implementing the Total
Maximum Daily Load (TMDL)
The process for BMAP development involves
collaboration among local stakeholders and
FDEP staff.
Once consensus among stakeholders over the
BMAP has been achieved, it is adopted by
Secretarial Order and enforced.
Recommended Guidelines
for TMDL Allocations

FDEP Formed Allocation Technical Advisory
Committee (ATAC)

First step to achieve equity was to “level the playing
field” in treatment effort between point and nonpoint
sources. Point source are already required to provide, at
a minimum, technology based treatment levels.

ATAC felt nonpoint sources should be expected to
provide comparable minimum levels of treatment,
before additional reductions were expected of point
sources.

The ATAC subsequently decided that the comparable
minimum treatment for nonpoint sources should be
the Best Management Practice (BMPs) developed and
adopted for that activity.
TMDL Allocation Example
Maximum
load
allowed
(TMDL)
Allocation
process
address
this excess
load
Step 1

Calculate the amount of pollutant reductions that would be
achieved if:
 a) 45% of all agricultural and silviculture operations in
the basin and in upstream watersheds implemented the
appropriate BMPs
 b) 45% of urban areas met stormwater treatment
requirements for new development, and
 c) 45% of the homes with septic tanks within the 100year floodplain were hooked up to a regional sewer
system.
Effect of Step 1 Reductions
40,000 pounds short
Step 2

If step 1 was not sufficient to meet the TMDL, then calculate
if
 a) 90% of all agricultural and silviculture operations in the
basin implemented the BMPs,
 b) 90% of urban areas met stormwater treatment
requirements for new development, and
 c) 90% of the homes with septic tanks within the 100-year
floodplain were hooked up to a regional sewer system.
Effect of Step 2 Reduction
22,000 pounds short
Step 3

If the reductions for step 2 are not sufficient to meet the
TMDL, the third recommended step is to allocate
reductions to all sources except those where loading is
at background levels or those that have provided
treatment beyond BAT levels, in increments of 10% until
the TMDL is met.
Effect of Step 3 Reductions
Step 1
Step 2
Step 3
10,000 lbs
28,000 lbs
15,000 lbs
53,000 lbs
Only need an 8% reduction in step 3, not 10 % reduction to meet TMDL target
Iterative Process



Continuous monitoring required to determine progress
toward TMDL target
Use attainability is evaluated biannually
Revisit TMDL target if use attainment is not met


Change TMDL or allocation if necessary
Efficacy of BMPs may be revised with more data
which may require reassessment of load allocation
How Does this Relate to
GIBMP’s?




These Policies are the underlying driver to
regulate water quality in the State of Florida
Ultimate goal is not to create condition of
impairment that results in triggering
TMDL/BMAP process.
Implementation of GI BMPs will reducing the
likelihood of triggering impairment condition.
GI BMP’s provide tools that reduce loads in
TMDL watersheds and are part of urban
BMAP load reduction strategy.
Don’t want this.