Fla. Admin. Code Ann. R. 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) A numerical interpretation of the Class III narrative nutrient criterion for phosphorus;

(b) A method for determining achievement of the numeric phosphorus criterion, which takes into consideration spatial and temporal variability, natural background conditions and confidence in laboratory results.

(2) Findings.

(a) The Legislature, in adopting the Everglades Forever Act, recognized that the EPA must be restored both in terms of water quantity and water quality.

(b) The Comprehensive Everglades Restoration Plan (CERP) contains projects that will affect the flows and phosphorus levels entering the EPA. Achievement of water quality standards for water quality projects required under the Everglades Forever Act can be most effectively and efficiently attained when integrated with CERP projects.

(c) It is the intent of the Commission that implementation of this rule will fulfill commitments made by the State of Florida to restore and maintain water quality in the EPA, while, at the same time, fulfill the States obligations under the Settlement Agreement to achieve the long-term phosphorus concentration levels and discharge limits established in that Agreement for the Loxahatchee National Wildlife Refuge (Refuge) and the Everglades National Park (Park).

(d) Establishment of the numeric phosphorus criterion, based upon analyses conducted primarily in freshwater open water slough systems, assumed that preservation of the balance of the native flora and fauna in these open water slough systems would protect other communities of native vegetation in the EPA. Further research should be conducted in other habitat types to further evaluate the natural variability in those habitat types.

(e) The Commission has received substantial testimony regarding mercury and its impact on the EPA. The Commission encourages all interested parties to continue research efforts on the effects of mercury.

(3) Definitions.

(a) The "Everglades Protection Area" or "EPA" shall mean Water Conservation Areas 1 (Refuge), 2A, 2B, 3A and 3B, and the Everglades National Park.

(b) "Impacted Areas" shall mean areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg.

(c) "District" shall mean the South Florida Water Management District.

(d) "Settlement Agreement" shall mean the Settlement Agreement entered in Case No. 88-1886-Civ-Hoeveler, United States District Court for the Southern District of Florida, as modified by the Omnibus Order entered in the case on April 27, 2001.

(e) "Unimpacted Areas" shall mean those areas which are not "Impacted Areas."

(4) Phosphorus Criterion.

(a) The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion shall be determined by the methods in this subsection. Exceedences of the provisions of this subsection shall not be considered deviations from the criterion if they are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures or higher natural background conditions.

(b) Water Bodies. Achievement of the phosphorus criterion for waters in the EPA shall be determined separately in impacted and unimpacted areas in each of the following water bodies: Water Conservation Areas 1, 2 and 3, and the Everglades National Park.

(c) Achievement of Criterion in Everglades National Park. Achievement of the phosphorus criterion in the Park shall be based on the methods as set forth in Appendix A of the Settlement Agreement unless the Settlement Agreement is rescinded or terminated. If the Settlement Agreement is no longer in force, achievement of the criterion shall be determined based on the method provided for the remaining EPA. For the Park, the Department shall review data from inflows into the Park at locations established pursuant to Appendix A of the Settlement Agreement and shall determine that compliance is achieved if the Department concludes that phosphorus concentration limits for inflows into the Park do not result in a violation of the limits established in Appendix A.

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

1. Achievement of the criterion in unimpacted areas in each WCA shall be determined based upon data from stations that are evenly distributed and located in freshwater open water sloughs similar to the areas from which data were obtained to derive the phosphorus criterion. Achievement of the criterion shall be determined based on data collected monthly from the network of monitoring stations in the unimpacted area. 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. The annual geometric mean averaged across all stations is less than or equal to 10 ppb for three of five years,

b. The annual geometric mean averaged across all stations is less than or equal to 11 ppb; and,

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.

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. The annual geometric mean averaged across all stations is less than or equal to 10 ppb for three of five years,

b. The annual geometric mean averaged across all stations is less than or equal to 11 ppb; and,

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.

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) Adjustment of Achievement Methods. The Department shall complete a technical review of the achievement methods set forth in this subsection at a minimum of five year intervals and will report to the ERC on changes as needed. Data will be collected as necessary at stations that are evenly distributed and representative of major natural habitat types to further define the natural spatial and temporal variability and natural background of phosphorus concentrations in the EPA. As a part of the review, the Department may propose amendments to the achievement method provisions of this rule to include:

1. A hydrologic variability algorithm in a manner similar to the Settlement Agreement; and,

2. Implementing adjustment factors that take into account water body specific variability, including the effect of habitat types.

The hydrologic variability evaluation shall be based on data from at least one climatic drought cycle and data reflecting the average interior stage of the water body on the dates of sample collection.

(f) Data Screening. Data from each monitoring station shall be evaluated prior to being used for the purposes of determining achievement of the criterion. Data shall be excluded from calculations for the purpose of determining achievement of the criterion if such data:

1. Do not comply with the requirements of Chapter 62-160, F.A.C., or

2. Are excluded through the screening protocol set forth in the Data Quality Screening Protocol, or

3. Were collected from sites affected by extreme events such as fire, flood, drought or hurricanes, until normal conditions are restored, or

4. Were affected by localized activities caused by temporary human or natural disturbances such as airboat traffic, authorized (permitted or exempt) restoration activities, alligator holes, or bird rookeries.

5. Were sampled in years where hydrologic conditions (e.g., rainfall amount, water levels and water deliveries) were outside the range that occurred during the period (calendar years 1978 - 2001) used to set the phosphorus criterion.

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

(a) Phosphorus discharge levels into the EPA shall be deemed in compliance with this rule upon a demonstration that those levels in the discharges will be at or below a water quality based effluent limit calculated pursuant to Chapter 62-650, F.A.C., to achieve the phosphorus criterion set forth in this rule.

(b) Discharges into the Park must not result in a violation of the concentration limits established for the Park in Appendix A of the Settlement Agreement as determined through the methodology set forth in subsection (4).

(6) Document Incorporated by Reference. The following document is referenced elsewhere in this section and is hereby incorporated by reference:

Data Quality Screening Protocol, dated 7-15-04.

(7) Contingencies. In the event any provision of this rule is challenged in any proceeding, the Commission shall immediately be notified. In the event any provision of this rule:

(a) Is determined to be invalid under applicable laws, or

(b) Is disapproved by the U.S. Environmental Protection Agency under the Clean Water Act, the Department shall bring the matter back before the Commission at the earliest practicable date for reconsideration.

Notes

Fla. Admin. Code Ann. R. 62-302.540

Rulemaking Authority 373.043, 373.4592, 403.061 FS. Law Implemented 373.016, 373.026, 373.4592, 403.021(11), 403.061, 403.201 FS.

New 7-15-04, Amended 5-25-05, Amended by Florida Register Volume 43, Number 050, March 14, 2017 effective 3/28/2017.

New 7-15-04, Amended 5-25-05, 3-28-17.