

                                       

                       EPA Responses to Public Comments
"Effective Date for the Water Quality Standards for the State of Florida's Lakes and Flowing Waters"

This document is a compilation of the public comments received by the Environmental Protection Agency (EPA) from its proposed rule entitled, "Effective Date for the Water Quality Standards for the State of Florida's Lakes and Flowing Waters" (inland waters rule), which was published in the Federal Register (Volume 76, Number 246) on December 22, 2012.  The 30-day public comment period ended on January 23, 2012.  The EPA's responses have been inserted directly into each comment letter.  The original comments letters and any supporting documentation submitted by the public can be found in the official docket for this rulemaking at http://www.regulations.gov/ under Docket ID EPA-HQ-OW-2009-0596.

FLORIDA ELECTRIC POWER COORDINATING GROUP, INC. (FCG)
1408 N. WESTSHORE BLVD., SUITE 1002
TAMPA, FLORIDA 33607-4512
(813) 289·5644· FAX (813) 289·5646

[Logo]
_____________________________________________________________________



January 20, 2012

Water Docket, U. S. Environmental Protection Agency
Mail Code: 28221T
1200 Pennsylvania Avenue NW
Washington, D.C. 20460

Attention: Docket ID No.: EPA-HQ-OW-2009-0596

Re: 	Comments Provided by the Florida Electric Power Coordinating Group, Inc. Environmental Committee in response to EPA's December 22,2011 Notice: Effective Date for Water Quality Standards for the State of Florida 's Lakes and Flowing Waters

To Whom It May Concern:

The Florida Electric Power Coordinating Group, Inc., Environmental Committee (FCG) provides the following comments in response to EPA's notice of proposed agency action, published in the Federal Register on December 22, 2011, to delay the implementation of EPA's numeric nutrient criteria for Florida lakes and flowing waters from March 6, 2011 to June 4, 2012.

The FCG supports EPA's proposal to delay the effective date of its criteria, as published in the Federal Register on December 6, 2011, and agrees with EPA that extending the effective data [sic] to June 4, 2012 (and perhaps beyond) is appropriate.

 	EPA agrees with the comment supporting the proposed extension of the effective date and has promulgated an extension in the final rule.

The FCG, through its Environmental Committee, represents investor-owned electric utilities, rural electric cooperatives, and municipal electric utilities on environmental issues affecting Florida's electric utility industry. FCG was established in 1976 and currently has twenty-eight (28) members. FCG members provide electricity to nearly 5 million customers in Florida, which represents over half of the State's electrical energy supply. Many FCG members discharge treated wastewater to Florida surface waters under the authority of state discharge permits issued by the Florida Department of Environmental Protection (DEP or Department) consistent with the State's EPA-approved National Pollutant Discharge elimination System (NPDES) permit program. Permit conditions imposed by DEP are derived from, based upon, and implement, the State's federally approved Water Quality Standards Program and Total Maximum Daily Load
(TMDL) program.

The FCG has actively participated as an interested stakeholder in Florida's development of its numeric nutrient criteria. The FCG has consistently taken the position, in comment letters and through court filings, that EPA was premature in issuing its January 14, 2009 necessity determination and developing federal numeric nutrient criteria for Florida waters. The FCG is pleased to see that EPA is proposing to recognize the State's efforts in developing its own 

Water Docket
U. S. Environmental Protection Agency
January 20, 2012
Page 2

comprehensive nutrient rule and supports EPA's proposal to delay implementation of the federal criteria to allow the State time to complete its administrative process and submit its rule to EPA for review under § 303 of the Clean Water Act.

	EPA agrees with the comment supporting the proposed extension of the effective date and has promulgated an extension in the final rule.

As noted in EPA's December 22, 2011 proposal, an additional time period, beyond June 4, 2012 may be necessary to accommodate the Department's submission, and EPA's review, of the State rule. Petitions have been filed with the Florida Division of Administrative Hearings (DOAH) challenging the State rule; these petitions have been filed by the same parties who initially sued EPA in 2008 to force EPA to establish numeric nutrient criteria for Florida waters.  These advocacy groups have pursued a "shotgun approach" in their attack on the State rule and have filed lengthy meandering petitions attacking all aspects of the State rule-including provisions and concepts which also serve as the basis for EPA's criteria as finalized on December 6, 2011.

      EPA agrees that an extension of the effective date longer than the proposed 90- day extension is needed to allow enough time for the State's rulemaking process to conclude. EPA is promulgating a slightly longer extension (four months) than was proposed (90 days) in order to provide sufficient time to allow the State rulemaking process to come to completion. As discussed in the preamble to the final rule, Florida DEP and the Florida legislature have continued to make progress in their rulemaking process. EPA is finalizing an extension of the March 6, 2012 effective date of the "Water Quality Standards for the State of Florida's Lakes and Flowing Waters; Final Rule" (inland waters rule) for four months to July 6, 2012. 
      
      If FDEP has formally adopted its final rule before July 6, 2012, EPA will consider proposing a further extension of the effective date of the inland waters rule to allow FDEP to submit the rule to EPA for review and action under section 303(c) of the CWA, for EPA to complete its review of and take action on the State rule, and for EPA to withdraw any Federal numeric nutrient criteria corresponding to any State-adopted numeric nutrient criteria that have been approved by EPA, as appropriate.
      

On January 9, 2012, counsel for these same organizations appeared in federal court attacking elements of EPA's final rule as arbitrary and capricious; in that same hearing, counsel for the advocacy groups criticized EPA's December 22nd proposal to delay implementation of the federal criteria to accommodate the State's administrative process.

The advocacy groups should not be allowed to cause the delay with their dilatory petitions and then cry foul when EPA offers time to allow cooperative federalism to work and for the State to complete its rulemaking process-which includes defending the very rule challenges filed by the petitioners. 
	
As noted by EPA in its December 22nd notice, the proposed extension of the implementation date "would avoid the confusion and inefficiency that may occur should Federal criteria become effective while state criteria are being finalized by the State and reviewed by EPA." The FCG fully supports EPA's rationale and indeed encouraged DEP to include language in the State rule consistent with EPA's goal of avoiding redundant and inconsistent state and federal regulatory programs.

The FCG appreciates the opportunity to provide these comments and supports EPA's proposal as published December 22, 2011.

		Florida Electric Power Coordinating Group
		Environmental Committee

		[Signature]

		Winston K. Borkowski
		Hopping Green & Sams
		On behalf of the FCG Environmental Committee

Copy to:    Tanya Portillo, Director of Environmental Affairs
         James S. Alves, Esquire
--------------------------------------------------------------------------------

--------------------------------------------------------------------------------

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                             Florida Department of
                           Environmental Protection
                       Marjory Stoneman Douglas Building
                          3900 Commonwealth Boulevard
                        Tallahassee, Florida 32399-3000
[Logo]								
                                                                     Rick Scott
                                                                       Governor
                                                                               
                                                               Jennifer Carroll
                                                                   Lt. Governor
                                                                               
                                                        Herschel T. Vinyard Jr.
                                                                      Secretary
January 20, 2012

Jeff Lape, Acting Director
Office of Science and Technology
Environmental Protection Agency
Mail code: 4301T
1200 Pennsylvania Avenue NW.
Washington, DC 20460

Attention: Docket ID No. EPA-HQ-OW-2009-0596.

Dear Mr. Lape:

The Florida Department of Environmental Protection (DEP) is pleased to see that the
U.S. Environmental Protection Agency (EPA) proposed a delay in the implementation
of the federally promulgated nutrient criteria for Florida's lakes and flowing waters,
acknowledging that the Florida Environmental Regulation Commission recently
approved for adoption numeric nutrient standards for Florida's streams, lakes, springs,
and southern Florida estuaries. The Division of Environmental Assessment and
Restoration (Division) is writing this letter on behalf of DEP to inform you of critical
factors to consider when making the final decision on a new effective date, and to
discuss the upcoming deadline for EPA to propose additional criteria.

EPA proposed a delay in the effective date of the federal nutrient criteria until June 6,
2012 to avoid the confusion and inefficiency that would occur should Federal criteria
become effective while criteria are being finalized by the State and reviewed by EPA.
This June 6 date may not give EPA sufficient time to approve these rules. DEP believes
this may not be sufficient time because third parties have challenged the proposed
water quality improvement rules which delay the effective date of those rules. The trial
date has already been moved back twice and DEP does not know when the final order
for the hearing will be issued. In addition, DEP also recognizes that EPA will need
some time to review the adopted rules once they are submitted to EPA for formal
approval as changes to Florida's surface water quality standards. DEP would also like
to note that the state's rules will not go into effect until after EPA formally approves
them and concludes its own rulemaking to repeal its numeric nutrient criteria for
Florida.

      EPA agrees that an extension of the effective date longer than the proposed 90- day extension is needed to allow enough time for the State's rulemaking process to conclude. EPA is promulgating a slightly longer extension (four months) than was proposed (90 days) in order to provide sufficient time to allow the State rulemaking process to come to completion. As discussed in the preamble to the final rule, Florida DEP and the Florida legislature have continued to make progress in their rulemaking process. EPA is finalizing an extension of the March 6, 2012 effective date of the "Water Quality Standards for the State of Florida's Lakes and Flowing Waters; Final Rule" (inland waters rule) for four months to July 6, 2012. 
      
      If FDEP has formally adopted its final rule before July 6, 2012, EPA will consider proposing a further extension of the effective date of the inland waters rule to allow FDEP to submit the rule to EPA for review and action under section 303(c) of the CWA, for EPA to complete its review of and take action on the State rule, and for EPA to withdraw any Federal numeric nutrient criteria corresponding to any State-adopted numeric nutrient criteria that have been approved by EPA, as appropriate.


Assuming that DEP submits a final rule and supporting documentation to EPA on April
1, 2012, EPA follows the 60-day Clean Water Act timeframe to approve the rules, and
                                       
                              www.dep.state.f/.us

Water Docket ID No. EPA-HQ-OW-2009-0596.
Page 2
January 20, 2012

EPA takes 120 days to conclude rulemaking in response to their approval, the State rule
would then take effect around October 1, 2012. These are ambitious timeframes given
our experience in these matters. EPA may want to reconsider whether a 90-day
extension is sufficient time if the Agency wants to avoid the complications that would
be created by temporary federal rules.

DEP also requests that EPA observe our commitment in the proposed rules for the
establishment of estuary criteria and postpone its proposal of criteria for marine waters.
Quite simply, this is not a good and proper use of State and Federal resources to invest
in two parallel government procedures that ultimately have the same goal. If both
agencies instead could continue to work together on one process, it would eliminate
unnecessary burden on our agencies. A single rulemaking effort would also ease the
burden on those stakeholders that engage in this rulemaking and generally avoid
confusion for the public. Should EPA feel compelled to propose criteria for marine
waters under the Consent Decree, DEP respectfully requests that EPA not propose
criteria for the estuaries that are already covered under DEP's approved rules,
including those based on Total Maximum Daily Loads.

      EPA requested comment on and is limiting this final action to only the issue of extending the effective date of the inland waters rule (except for the site-specific alternative criteria provision, which became effective on February 4, 2011). This comment on another EPA rulemaking concerning waters not covered under the inland waters rule is outside the scope of this action.

Furthermore, upon EPA approval of DEP's estuary criteria, which include regulatory
timeframes to establish criteria for all remaining estuaries, DEP asks that EPA also
conclude that these rules have sufficiently addressed the January 9, 2009, determination
that numeric nutrient criteria are necessary and discontinue further rulemaking in the
state. Once that occurs, both Agencies will be able to concentrate on one State level
rulemaking procedure, and adoption and approval of State water quality standards can
resume as envisioned by the authors of the Clean Water Act.

      EPA requested comment on and is limiting this final action to only the issue of extending the effective date of the inland waters rule (except for the site-specific alternative criteria provision, which became effective on February 4, 2011). This comment on another EPA rulemaking concerning waters not covered under the inland waters rule is outside the scope of this action.
      
DEP looks forward to continuing to work with EPA to advance the most comprehensive
nutrient pollution program in the nation. Accordingly, DEP will keep you apprised of
any developments regarding the administrative challenge and legislative ratification.


Sincerely,

[Signature]

Drew Bartlett
Director, Division of Environmental Assessment and Restoration

cc: James D. Giattina, EPA Region 4
   
------------------------------------------------------------------------------------------------------------

                                                                               
                                                            Georgia-Pacific LLC
                                                               Traylor Champion
                                          Vice President, Environmental Affairs
                                                        133 Peachtree Street NE
                                                         Atlanta, Georgia 30303
                                                             btchampi@gapac.com
                                                                 (404) 652-4776

January 19, 2012
EPA Docket Center (EPA/DC)
Environmental Protection Agency
Mail Code: 28221T
1200 Pennsylvania Ave., NW
Washington, DC 20460

Subject: 	Comments on Proposed Rule to Extend the Effective Date for the Water Quality Standards for the State of Florida's Lakes and Flowing Waters Docket ID No. EPA-HQ-OW-2009-0596

To those concerned:

Georgia-Pacific LLC (GP) appreciates the opportunity to submit the following comments on the U. S. Environmental Protection Agency's (EPA) proposal to extend the effective date for the Water Quality Standards (WQS) for the State of Florida's Lakes and Flowing Waters (40 CFR 131, Subpart D, Section 131.43).

Georgia-Pacific is one of the world's leading manufacturers of tissue, pulp, paper, packaging, consumer products, building products and related chemicals. GP has over 300 manufacturing facilities across North America, South America and Europe, ranging from large facilities, such as pulp, paper and tissue operations; to moderately sized facilities, such as gypsum plants, chemical plants, and building products complexes; to small facilities, such as Dixie(R) product plants and box plants. Georgia-Pacific has several operating facilities in Florida including a major pulp and paper mill, woodyards, wood products plants, and a chip mill. GP also operates pulp and paper mills in Georgia and Alabama that discharge into water bodies that flow into Florida waters. Many of these facilities possess NPDES permits and will be affected by implemented numeric
nutrient water quality criteria for the State of Florida.

Georgia-Pacific strongly supports the efforts by the State of Florida and specifically, the Florida Department of Environmental Protection (DEP) in developing a state regulatory program for numeric nutrient criteria (NNC). The DEP has worked diligently in 2011 to develop a sound program that has involved substantial technical and regulatory input from affected stakeholders and EPA. However, although the Environmental Regulation Commission has voted to adopt the state NNC rule, the state rule has been challenged and cannot go into effect until the challenge is resolved. GP is supporting the DEP in that process. Likewise, due to its cost, the state NNC rule requires legislative ratification and has been submitted to the legislature for that purpose. GP supports the ratification.

EPA has proposed a 90 day extension of the effective date of the EPA regulations. Georgia- Pacific fully supports an extension, but instead of 90 days, we suggest and support a 180 day extension of the effective date of the EPA regulations to allow ample time for the rulemaking process to be completed: 90 days is a relatively short time for rules that have generated such a high level of interest and involvement from stakeholders, regulators and legislators. The 

                                                                         Page 2

necessary discussions, procedures and votes must be completed. In addition, the  challenge to the rule is set to go to hearing in early February. The Administrative Law Judge will need time to complete his review and prepare an issuance of a final order. Time is also required for submittal of the state rule to EPA, EPA's review and then action on that review. A rule of this significance and scope should not be rushed.

      
      EPA agrees that an extension of the effective date longer than the proposed 90- day extension is needed to allow enough time for the State's rulemaking process to conclude. EPA is promulgating a slightly longer extension (four months) than was proposed (90 days) in order to provide sufficient time to allow the State rulemaking process to come to completion. As discussed in the preamble to the final rule, Florida DEP and the Florida legislature have continued to make progress in their rulemaking process. EPA is finalizing an extension of the March 6, 2012 effective date of the "Water Quality Standards for the State of Florida's Lakes and Flowing Waters; Final Rule" (inland waters rule) for four months to July 6, 2012. 
      
      If FDEP has formally adopted its final rule before July 6, 2012, EPA will consider proposing a further extension of the effective date of the inland waters rule to allow FDEP to submit the rule to EPA for review and action under section 303(c) of the CWA, for EPA to complete its review of and take action on the State rule, and for EPA to withdraw any Federal numeric nutrient criteria corresponding to any State-adopted numeric nutrient criteria that have been approved by EPA, as appropriate.
      

We again appreciate the opportunity to submit comments on the above proposed amendments. If you have any questions regarding our comments, please contact me at (404) 652-4776.

Sincerely,



B. Traylor Champion
Vice President  -  Environmental Affairs
Georgia-Pacific LLC


------------------------------------------------------------------------------------------------------------




      
                                  January 23, 2012
                                          
      Water Docket 
      U.S. Environmental Protection Agency 
      Mail Code 2822T 
      1200 Pennsylvania Avenue, N.W. 
      Washington, DC 20460 
      Attn: Docket ID No. EPA-HQ-OW-2009-0596 
      
	Re: AF&PA Comments on Comments on Proposed Rule to Extend the Effective Date for the Water Quality Standards for the State of Florida's Lakes and Flowing Waters (Docket ID No. EPA-HQ-OW-2009-0596) (76 FR 79604) 

      
      Dear Sir or Madam: 
      
      We appreciate the opportunity to provide comments on EPA's proposal to extend the effective date for the federal water quality standards for certain Florida waters (the ("Proposal"). The American Forest & Paper Association is the national trade association of the forest products industry, representing pulp, paper, packaging and wood products manufacturers, and forest landowners. Our companies make products essential for everyday life from renewable and recyclable resources that sustain the environment. The forest products industry accounts for approximately 5 percent of the total U.S. manufacturing GDP. Industry companies produce about $175 billion in products annually and employ nearly 900,000 men and women, exceeding employment levels in the automotive, chemicals and plastics industries. The industry meets a payroll of approximately $50 billion annually and is among the top 10 manufacturing sector employers in 47 states. AF&PA recently established a new initiative, Better Practices, Better Planet 2020, the next phase in the forest products industry's efforts to build on our legacy as a leader in sustainability. The initiative includes one of the most extensive set of quantifiable sustainability goals for a major U.S. manufacturing industry, with a commitment to transparently report progress towards achieving those goals. 
      
      AF&PA members own and operate facilities subject to Clean Water Act permits in the State of Florida. AF&PA, therefore, has a direct interest in this rulemaking. 
      
      AF&PA strongly supports the efforts by the State of Florida to develop a state regulatory program for numeric nutrient criteria (NNC). The Florida Department of Environmental Protection (DEP) has been one of the leaders in the nation addressing nutrient issues, spending several years and millions of dollars to collect and analyze nutrient data in order to establish a sound scientific basis for establishing NNC.
      
      1111 Nineteenth Street, NW, Suite 800 ▪ Washington, DC 20036 ▪ 202 463-2700 Fax: 202 463-2785 ▪ www.afandpa.org
      
      January 23, 2012 
      Page 2 
      
      
      The State of Florida is now in the final stages of its regulatory and legislative process for adopting NNC. In 2011, this process included a rigorous program of technical and regulatory input from affected stakeholders and EPA. However, while substantial progress has been made, additional steps remain (i.e., resolution of a challenge to the Environmental Regulation Commission's adoption of the state NNC rule and ratification by the state legislature). 
      
      EPA has indicated in a November, 2011 letter to DEP that it was inclined to approve the draft NNC rules DEP had developed. EPA also indicated that if it approved the final DEP rules, the agency would initiative a subsequent rulemaking to withdraw the federal rule which is the subject of the Proposal. 
      
      AF&PA supports EPA providing sufficient time for this process to reach an orderly conclusion. The pending Proposal includes only a 90-day extension of the effective date of the underlying EPA rule. While we support an extension of the effective date, we believe it should be 180 days to allow the time needed for the State of Florida to complete the administrative review of the legal challenge, action by the Florida legislature, and an EPA rulemaking to withdraw the underlying federal rule. It would be a better use of resources and prevent further confusion if EPA provided extra time now, instead of the agency having to initiate another rulemaking to extend the effective date because the 90-day extension did not provide sufficient time to complete these remaining steps. We note that DEP has raised the same issue in its comments on the Proposal. 
      
             EPA agrees that an extension of the effective date longer than the proposed 90- day extension is needed to allow enough time for the State's rulemaking process to conclude. EPA is promulgating a slightly longer extension (four months) than was proposed (90 days) in order to provide sufficient time to allow the State rulemaking process to come to completion. As discussed in the preamble to the final rule, Florida DEP and the Florida legislature have continued to make progress in their rulemaking process. EPA is finalizing an extension of the March 6, 2012 effective date of the "Water Quality Standards for the State of Florida's Lakes and Flowing Waters; Final Rule" (inland waters rule) for four months to July 6, 2012. 
            
            If FDEP has formally adopted its final rule before July 6, 2012, EPA will consider proposing a further extension of the effective date of the inland waters rule to allow FDEP to submit the rule to EPA for review and action under section 303(c) of the CWA, for EPA to complete its review of and take action on the State rule, and for EPA to withdraw any Federal numeric nutrient criteria corresponding to any State-adopted numeric nutrient criteria that have been approved by EPA, as appropriate.
            
      
      
      If you have any questions about this request, please contact me at 202/463-2581 or jerryschwartz@afandpa.org. 
      
      
      					Respectfully, 
      
      					
      
      
      					Jerry Schwartz 
      					Senior Director, Energy and Environmental 						Policy
      
      
      
_______________________________________________________________________				

									CF Industries, Inc.
									Phosphate Operations
									PO Drawer L
									Plant City, FL 33564
									813-782-1591
[Logo]

January 20, 2012



Water Docket
U. S. Environmental Protection Agency
Mail Code: 28221T
1200 Pennsylvania Avenue NW
Washington, D.C. 20460

Attention: Docket 10 No.: EPA-HQ-OW-2009-0596

Re: Effective Date for the Water Quality Standards for the State of Florida's
	Lakes and Flowing Waters - Comments Submitted by CF Industries
	
To Whom It May Concern:

CF Industries appreciates the opportunity to provide comments in response to EPA's  notice of proposed agency action, published in the Federal Register December 22, 2011, that would delay the implementation of EPA's numeric nutrient criteria for Florida lakes and flowing waters from March 6, 2011 to June 4, 2012.

CF Industries is an industry leader in fertilizer manufacturing and distribution, the largest
nitrogen fertilizer producer in North America, the second largest nitrogen fertilizer producer in the world and the third largest phosphate fertilizer producer among public companies. The Company strives to conduct its business and operate its facilities in a manner designed to protect the environment, the health and safety of its employees, and the communities where its facilities are located. We are committed to compliance with all applicable environmental laws, rules and regulations; continuous improvement in its environmental, health and safety programs; and to pollution prevention, energy efficiency, and conservation of natural resources as fundamental requirements of all its operations. CF Industries is a long-term participant stakeholder in both the Tampa Bay Estuary Program and the Charlotte Harbor National Estuary Program and is a founding member of the Tampa Bay Nitrogen Management Consortium.

EPA Water Docket ID No.: EPA-HQ-OW-2009-0596
January 20, 2012
Page 2

CF Industries supports EPA's proposal to delay the effective date of its criteria, as published in the Federal Register on December 6, 2011, and agrees with EPA that extending the effective data [sic] to June 4, 2012 (and perhaps beyond) "would avoid the confusion and inefficiency that may occur should Federal criteria become effective while state criteria are being finalized by the State and reviewed by EPA." The Company supports scientifically sound environmental regulations and policies that will protect and restore Florida waters. As detailed in comments submitted to this docket and in court filings, CF Industries has expressed serious concerns regarding EPA's Water Quality
Standards for the State of Florida's Lakes and Flowing Waters as published in the
Federal Register on December 6, 2011.

      EPA agrees with the comment supporting the proposed extension of the effective date and has promulgated an extension in the final rule.


The State rules approved by the ERC and forwarded to the Florida Legislature for ratification incorporate the EPA criteria as thresholds but attempt to bridge some of the gaps in science and implementation issues not addressed in the EPA rule but well known to State scientists, policy makers and the regulated community.

In the interest of avoiding unnecessary and undesirable regulatory uncertainty and conflicts referenced in EPA's notice of December 22, 2011, CF Industries supports the
Agency's delay in implementing the federal criteria in order to allow the State to complete its administrative process and forward the rule to EPA for review under § 303(c) of the Clean Water Act.

CF Industries notes that substantial uncertainty surrounds when the State will be able to submit its new nutrient rules to EPA for review. The same parties who filed the original suit against EPA also have filed petitions with Florida's Division of Administrative Hearings (DOAH) challenging the State rules. It appears evident that the intent of these parties is to delay the State process in order to force implementation of the EPA criteria; although as recently as January 9, 2012, associated counsel appeared in the U.S. District Court for the Northern District of Florida arguing that EPA's criteria were deficient and should be selectively remanded back to the federal agency. We urge EPA to not reward such tactics and to further extend its implementation deadline beyond June 4, 2012, if necessary to accommodate the legal proceedings impeding the State's progress in submitting its rules to EPA for formal review.

       EPA agrees that an extension of the effective date longer than the proposed 90- day extension is needed to allow enough time for the State's rulemaking process to conclude. EPA is promulgating a slightly longer extension (four months) than was proposed (90 days) in order to provide sufficient time to allow the State rulemaking process to come to completion. As discussed in the preamble to the final rule, Florida DEP and the Florida legislature have continued to make progress in their rulemaking process. EPA is finalizing an extension of the March 6, 2012 effective date of the "Water Quality Standards for the State of Florida's Lakes and Flowing Waters; Final Rule" (inland waters rule) for four months to July 6, 2012. 
      
      If FDEP has formally adopted its final rule before July 6, 2012, EPA will consider proposing a further extension of the effective date of the inland waters rule to allow FDEP to submit the rule to EPA for review and action under section 303(c) of the CWA, for EPA to complete its review of and take action on the State rule, and for EPA to withdraw any Federal numeric nutrient criteria corresponding to any State-adopted numeric nutrient criteria that have been approved by EPA, as appropriate.
      
      
Again, CF Industries appreciates the opportunity to provide these comments and fully supports EPA's December 22, 2011, proposal to delay implementation of the Agency's numeric nutrient criteria for Florida lakes and flowing waters.

                                 	  Sincerely,
                                       
                                 		[Signature]
                                       
                                       
						Craig A. Kovach, P.G.
						Director, Environmental Affairs
						Phosphate Operations
________________________________________________________________________



                           COMMENTS BY EARTHJUSTICE
       ON BEHALF OF FLORIDA WILDLIFE FEDERATION, ST. JOHNS RIVERKEEPER,
              SIERRA CLUB, CONSERVANCY OF SOUTHWEST FLORIDA, AND
               ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA
                                      ON
                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
             PROPOSED RULE ON EFFECTIVE DATE FOR THE WATER QUALITY
                          STANDARDS FOR THE STATE OF
                     FLORIDA'S LAKES AND FLOWING WATERS
                                       
                EPA Docket I.D. No. EPA - HQ - OW - 2009 - 0596
                                       
Proposed Rule Published: 76 Federal Register 79604 (Thursday, December 22, 2011)
                                       
     Amended Comments With Appendices Submitted January 23, 2012 via Email
                                       
I. 	INTRODUCTION

	This letter and its attachments contain the comments of Earthjustice on behalf of Florida Wildlife Federation, St. Johns Riverkeeper, Sierra Club, Conservancy of Southwest Florida and Environmental Confederation of Southwest Florida on the proposed rule on the Effective Date for the Water Quality Standards for the State of Florida`s Lakes and Flowing Waters. 76 Fed. Reg. 79604-79607. Earthjustice represented these organizations in the lawsuit that resulted in the Consent Decree which required the proposal and finalization of the rule for which EPA seeks to extend the effective date.

II. 	GENERAL COMMENTS

A.  EXTENSION OF THE RULE'S EFFECTIVE DATE IS INCONSISTENT WITH EPA'S DETERMINATION THAT NUMERIC NUTRIENT CRITERIA ARE NECESSARY FOR FLORIDA

	Many members of the organizations Earthjustice represented are personally and economically adversely affected by the eutrophication of Florida`s waters caused by nitrogen and phosphorus pollution.[1] The pollution has resulted in the greening of Florida`s waters to the detriment of Florida`s public drinking water sources, its tourism industry, and its waterfront based property values all of which has been acknowledged by EPA during this rulemaking process.2 That state itself has identified --major issues of concern with regard to the following nutrient related degradation of Florida`s waters:
______________________
[1] Appendix 1: Standing Affidavits from EPA Rule Challenge Proceeding.
2 Commentators incorporate by reference all comments they have previously submitted during this rulemaking..

                                       1

      :: Since the 1970s, scientists have documented increasing levels of nutrients in surface water.

	:: Water quality has declined in most springs since the 1970s; in particular, levels 	of nitrate (a nutrient) have increased.

      :: Freshwater harmful algal blooms (HABs) are increasing in frequency, duration, and magnitude and therefore may be a significant threat to surface drinking water resources and recreational areas. Abundant populations of blue-green algae, some of them potentially toxigenic, have been found statewide in numerous lakes and rivers. In addition, measured concentrations of cyanotoxins -- a few of them above the suggested guideline levels -- have been reported in finished water from some drinking water facilities.

2008 Integrated Report at p. 37.3

	The most vivid expression of the adverse effects of excessive nutrient pollution are the toxic algae outbreaks that now plague Florida`s rivers and lake and, most particularly, its springs and spring fed rivers. An Assessment of Cyanotoxins in Florida's Lakes, Reservoirs, and River produced by a team of scientists for the Florida Department of Environmental Protection in 2000 found that these outbreaks indicate the potential for a significant threat to public health:

      During the summer of 1999, the Cyanobacteria Survey Project at the SJRWMD collected a total of 167 water samples from sites throughout the state of Florida. Eighty-eight of these samples, representing 75 individual water bodies, were found to contain significant levels of toxin- producing blue-green algae. Thus far, algal toxins (particularly liver toxins) have been positively identified in all 88 of these water samples, and 80% of these samples have been shown to be lethally toxic to mice.
      
      The widespread distribution and relatively high levels of toxin-producing blue-green algae in Florida's waters, in addition to the demonstrated acute toxicity of the algal toxins, indicate the potential for a significant threat to public health from a poisonous HAB event. Algal toxins were found in water bodies that are presently being used as drinking water resources, which is of particular concern as these chemicals are highly toxic to humans and yet are virtually unnoticeable (no smell, discoloration, or off-flavor). 

As reported by FDEP in its 2008 Integrated Report to EPA:

      Over the last several years, concern has grown in Florida about the potential public health threat from harmful algal blooms (HABs). In general, researchers believe that freshwater algal blooms are increasing in frequency, duration, and magnitude and therefore may be a significant threat to surface drinking water resources and recreational sites (Williams, April 14, 2004). Typically caused by excess nutrients, these blooms may produce toxins 
__________________________________
[3] The 2008 Integrated Report is already part of the record of this rulemaking. See footnote 1 at 75 Fed. Reg. 4175.

                                       2

      that can harm humans through exposure to contaminated fish, dermal contact, and even the inhalation of aerosols.

	A Florida laboratory which performs testing for cyanotoxins (toxins produced by bluegreen algae), has photographs of algae outbreaks and accompanying toxin levels. See http://www.greenwaterlab.com/photo_bloom_020410.htm. One of those photograph shows a toxic algae bloom on Christopher Point Creek off the St. Johns River that was taken on July 31, 2009. The toxin concentration level of 800 ug/L for that bloom was 800 times above the WHO drinking standard of 1 ug/L and 40 times above WHO`s recreational standard of 20 ug/L. 


			

			Microcystis Algae: Christopher Point Canal (July 31, 2009)

	Recent algae outbreaks evidence the fact that the necessity for implementation of numeric nutrient criteria for Florida`s freshwater flowing waters, springs, and lakes has not abated. For example, in June 2011, a part of the Caloosahatchee River which is designated as a Class I waterbody (potable water supply) was subjected to a massive algae outbreak which again shut down the Olga Drinking Water Treatment Plant. The River, which smelled like an open septic tank, was posted with signs reading: WARNING: ALGAE ALERT  -  STAY OUT OF WATER. NO DRINKING BY HUMANS OR ANIMALS. NO EATING FISH. The signs also warned against fishing and swimming. 

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		Warning Sign: Caloosahatchee River, June, 2011

	Also, during the summer of 2010, the St. Johns River suffered a massive toxic algae outbreak and a related 100-mile fish kill in which the fish died from destroyed red blood cells believed to be related to algae toxins.[4]

	Florida's springs also continue to be infested with thick algal mats of Lyngbya wollei (Plectonema wollei). This organism is a type of blue-green algae known to produce neurotoxins, dermatoxins, and other toxins that can cause severe neurological and dermatological damage in humans. Recreational spring users have reported rashes, believed to be caused by elevated levels of cyanotoxins from Lyngbya wollei to the Florida Department of Health's Harmful Algal Bloom Illness-Related Surveillance System. Seven incidents were reported at Wakulla Springs between 2007 and 2011. Between June 2002 and August 2006, over 20 similar incidents were reported at Ichetucknee Springs, located northwest of Fort White. According to the Florida Department of Health`s surveillance system, another 20 incidents were reported at Ichetucknee Springs between 2007 and 2011. Similar incidents were reported in seven other springs around the state during the 2007 to 2011 time period[5]

      EPA agrees with the commenter that a significant number of Florida's lakes and flowing waters are impaired by excessive levels of nutrients.  EPA agrees with the commenter that the current levels of nutrients found in many of Florida's lakes and flowing waters adversely affect the economy and people of Florida.  EPA also agrees that excess nutrient concentrations pose a serious risk to public drinking water sources, tourism and waterfront property values as well as many other public health, environmental and economic issues.  EPA discussed its concerns at length in the preamble to the rule promulgating the  numeric water quality criteria for nitrogen/phosphorus pollution to protect aquatic life in lakes, flowing waters, and springs within the State of Florida (75 FR 75762).  
      
      However, EPA does not agree that the extension of the effective date is inconsistent with EPA's determination that the numeric nutrient criteria are necessary for Florida. As EPA stated in the preamble to the final inland waters rule, the opportunity that is presented by numeric nutrient criteria -- for substantial nitrogen and phosphorus loadings reductions in the State -- "would be greatly facilitated and expedited by strongly coordinated and well-informed stakeholder engagement, planning, and support before a rule of this significance and broad scope begins to take effect and be implemented through the State's regulatory programs."  75 FR 75787.  Florida has continued to make progress in their water quality standards process and development of numeric nutrient criteria, and therefore, EPA believes that a four-month extension is warranted to allow the State rulemaking process to come to completion.  EPA has extended the effective date of the inland waters rule to allow the State time to finish its process to develop its own numeric criteria for nutrients and to avoid the administrative inefficiency and confusion that would occur if federal criteria took effect in March 2012 but then State criteria took effect several months later.
      
      
	B.	 EPA'S EXTENSION OF THE RULE'S EFFECTIVE DATE IS
		INCONSISTENT WITH THE CLEAN WATER ACT

	Once EPA makes a determination that revised water quality criteria are necessary for a state to meet the requirements of the Clean Water Act, EPA has a mandatory duty to act promptly in establishing the criteria that satisfy the Clean Water Act`s requirements. EPA cites 
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[4] Appendix 2: FWC PowerPoint on 2010 St. Johns River Fish Kill.
[5] Appendix 3: FDOH, HAB Illness Data 2007-11 Final

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deference to the state`s rulemaking process as the basis for its decision to delay implementation of its numeric nutrient criteria rule. Clean Water Act section 303(c)(2)(4) does not give EPA the authority to delay implementation of rules it has found necessity under the Clean Water Act based on its desire to defer to the state`s rulemaking process.

      EPA disagrees with the commenter that the extension of the effective date is inconsistent with the Clean Water Act.  Clean Water Act section 303(c)(4)(B) directs  EPA to "promptly" propose and then promulgate new or revised WQS where the Administrator has determined that such WQS are necessary to meet CWA requirements.  EPA laid out its plans to "promptly" propose numeric nutrient criteria in its determination, which dates were later memorialized (among others) in a consent decree entered into with commenters and entered by the district court.  EPA has met those dates by proposing and signing a notice of final rulemaking for such criteria on time, consistent with CWA requirements. 


	C. 	EPA'S EXTENSION OF THE RULE'S EFFECTIVE DATE IS
ARBITRARY AND CAPRICIOUS BECAUSE EPA DOES NOT KNOW WHEN, IF EVER, THE STATE'S RULES WILL BECOME EFFECTIVE

	EPA arbitrarily and capriciously fails to consider (or for that matter even mention) the existing proposed rule challenge filed by petitioners which challenges the validity of the proposed rules under state law. See Docket for Consolidated Case No. 11-6137, Florida Division of Administrative Hearings. Unlike federal law, Florida law allows challenges to proposed rules which by law cannot be adopted if an administrative law judge determines that they are an invalid exercise of delegated statutory authority under Florida law. EPA also arbitrarily and capriciously fails to consider that one of the amendments to the proposed rules adopted at the December 8, 2012 Environmental Regulation Commission meeting prohibits the entirety of the state`s rules from being implemented should "any provision" of the state`s proposed rules be determined to be invalid in an administrative proceeding. Rule 62-302.531(9), F.A.C.6 This same rule halts effectiveness of the state`s rules unless EPA withdraws its necessity determination.

      EPA disagrees with the commenter that promulgating this extension is arbitrary and capricious because it is unknown when the State's rules will become effective. EPA stated in the proposed rule (75 FR 79606) that  "Should the State decide not to proceed with final numeric nutrient criteria after the ninety-day extension is finalized, EPA anticipates the inland waters rule would become effective at the end of the ninety days, on June 4, 2012."  EPA reiterates this principle in this final rule in that should the State decide not to proceed with final numeric nutrient criteria after the four-month extension, EPA anticipates the inland waters rule would become effective at the end of the four months, on July 6, 2012.  The purpose of the extension is to allow time for the State rulemaking process to come to an end, including the resolution of any administrative challenge to the State rule filed by commenters.  Also, EPA will only "withdraw any Federal numeric nutrient criteria corresponding to any State-adopted numeric nutrient criteria that have been approved by EPA."  Therefore the federal numeric nutrient criteria will remain in place if there are no approved State numeric nutrient criteria for the corresponding waters. 
      
      As EPA stated in the preamble to the final inland waters rule, the opportunity that is presented by numeric nutrient criteria -- for substantial nitrogen and phosphorus loadings reductions in the State -- "would be greatly facilitated and expedited by strongly coordinated and well-informed stakeholder engagement, planning, and support before a rule of this significance and broad scope begins to take effect and be implemented through the State's regulatory programs."  75 FR 75787.  
      

      D. 	EPA'S EXTENSION OF THE EFFECTIVE DATE IS ARBITRARY AND CAPRICIOUS AND A VIOLATION OF STATUTORY AUTHORITY BECAUSE IT VIOLATES THE PROVISIONS OF THE CONSENT DECREE WHICH REQUIRES IMPLEMENTATION OF EPA'S DUTIES UNDER THE CLEAN WATER ACT

	EPA`s rulemaking was undertaken pursuant to a Consent Decree that EPA lawfully entered into with commentators.[7] The basis for that Consent Decree was EPA`s "explicit and unequivocal" determination that "the existing Florida nutrient standard was inadequate and that a revised or new standard was necessary to meet the Clean Water Act`s requirements."  [D.E. 152: Order Approving Consent Decree, p. 13, Case No. 08-324, Northern District of Florida]. The Clean Water Act "mandates `prompt' action when a state standard is determined to be inadequate. The Consent Decree sets deadlines for EPA`s execution of its nondiscretionary duty which is to promulgate" any new or revised standard.  "Promulgation" is defined as setting out a rule with the force of law. An unimplemented law lacks force of law and violates EPA`s non-discretionary duty under both the Consent Decree and the Clean Water Act.

      EPA disagrees that the extension of the effective date violates the provisions of the consent decree.  The consent decree does not address the effective date of the rule. Rather, the consent decree specified a date by which EPA must "sign for publication in the Federal Register a notice(s) of final rulemaking".  Furthermore, this commenter was involved with the negotiation of the consent decree and did not challenge the initial effective date of March 6, 2012 for the final inland waters rule.


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[6] Commentators incorporate by reference Florida`s proposed rules which are published on DEP`s website at http://www.dep.state.fl.us/water/wqssp/nutrients/.

[7] Appendix 4: Order Approving Consent Decree and Consent Decree, FWF, et al, v. Lisa P. Jackson, et al., Case No. 08-334, Northern District of Florida. 



III. 	CONCLUSION

	Commentators have not agreed to EPA`s proposal to delay implementation of EPA's rules to await the uncertain outcome of the state`s rulemaking process. As set forth in the attached standing declarations, commentators are prejudiced and adversely affected by EPA`s unwarranted delay. As EPA stated in its motion to extend one of the Consent Decree deadlines, the rule at issue "is for the protection of human health, aquatic life, and the long-term recreational uses of Florida`s waters." EPA lacks the discretion to not carry through with its agreement under the Consent Decree or its Clean Water Act obligations.


				
				___________________________
				Monica K. Reimer on Behalf of
				Florida Wildlife Federation, St. Johns
				Riverkeeper, Sierra Club, Conservancy of 
				Southwest Florida, and Environmental
				Confederation of Southwest Florida





                                       
