(1) Type I Site Specific Alternative
Criteria: A waterbody, or portion thereof, may not meet a particular ambient
water quality criterion specified for its classification, due to natural
background conditions or man-induced conditions which cannot be controlled or
abated. In such circumstances, and upon petition by an affected person or upon
the initiation by the Department, the Secretary may establish a site specific
alternative water quality criterion when an affirmative demonstration is made
that an alternative criterion is more appropriate for a specified portion of
waters of the state. Public notice and an opportunity for public hearing shall
be provided prior to issuing any order establishing alternative criteria.
(a) The affirmative demonstration required by
this section shall mean a documented showing that the proposed alternative
criteria would exist due to natural background conditions or man-induced
conditions which cannot be controlled or abated. Such demonstration shall be
based upon relevant factors which include:
1.
A description of the physical nature of the specified waterbody and the water
pollution sources affecting the criterion to be altered.
2. A description of the historical and
existing water quality of the parameter of concern including, spatial,
seasonal, and diurnal variations, and other parameters or conditions which may
affect it. Conditions in similar water bodies may be used for
comparison.
3. A description of the
historical and existing biology, including variations, which may be affected by
the parameter of concern. Conditions in similar water bodies may be used for
comparison.
4. A discussion of any
impacts of the proposed alternative criteria on the designated use of the
waters and adjoining waters.
(b) The Secretary shall specify, by order,
the site specific criteria for the parameters which the Secretary determines to
have been demonstrated by the preponderance of competent substantial evidence
to be more appropriate.
(2) Type II Site Specific Alternative
Criteria: In accordance with the procedures set forth below, affected persons
may petition the Department, or the Department may initiate rulemaking, to
adopt an alternative water quality criterion for a specific waterbody, or
portion thereof, on the basis of site-specific reasons other than those set
forth above in subsection
62-302.800(1),
F.A.C. The Department shall process any such petition as follows:
(a) No later than 60 days after receipt of a
petition, the Department shall review the petition and notify the petitioner of
whether the petition is sufficiently complete to enable the Department to
evaluate the proposed site-specific alternative criterion under paragraph (c)
below. If the petition is not sufficiently complete, the Department shall
request the submittal of additional information. The Department shall review
any additional information within 60 days of receipt from the applicant and may
then request only that information reasonably needed to clarify or answer new
questions directly related to the additional information, unless the Department
shows good cause for not having requested the information previously.
(b) Petitions deemed complete by the
Department shall be processed under paragraph (c). For any petition not deemed
complete, if the petitioner believes that additional information requested by
the Department under paragraph (a), is not necessary to the Department's
evaluation, the Department, at the petitioner's request, shall proceed to
process the petition under paragraph (c), below.
(c) The Department shall initiate rulemaking
for the Commission to consider approval of the proposed alternative criterion
as a rule if the petitioner meets all the requirements of this subparagraph and
its subparts. The petitioner must demonstrate that the proposed criterion would
fully maintain and protect human health, existing uses, and the level of water
quality necessary to protect human health and existing and designated
beneficial uses. If the petition fails to meet any of these requirements
(including the required demonstration), the Department shall issue an order
denying the petition. In deciding whether to initiate rulemaking or deny the
petition, the Department shall evaluate the petition and other relevant
information according to the following criteria and procedures:
1. The petition shall include all the
information required under subparagraphs (1)(a)1.-4., above.
2. In making the demonstration required by
this paragraph (c), the petition shall include an assessment of aquatic
toxicity, except on a showing that no such assessment is relevant to the
particular criterion. The assessment of aquatic toxicity shall show that
physical and chemical conditions at the site alter the toxicity or
bioavailability of the compound in question and shall meet the requirements and
follow the Indicator Species procedure set forth in Water Quality
Standards Handbook (December 1983), a publication of the United States
Environmental Protection Agency, incorporated here by reference. If, however,
the Indicator Species Procedure is not applicable to the proposed site-specific
alternative criterion, the petitioner may propose another generally accepted
scientific method or procedure to demonstrate with equal assurance that the
alternative criterion will protect the aquatic life designated use of the
waterbody.
3. The demonstration
shall also include a risk assessment that determines the human exposure and
health risk associated with the proposed alternative criterion, except on a
showing that no such assessment is relevant to the particular criterion. The
risk assessment shall include all factors and follow all procedures required by
generally accepted scientific principles for such an assessment, such as
analysis of existing water and sediment quality, potential transformation
pathways, the chemical form of the compound in question, indigenous species,
bioaccumulation and bioconcentration rates, and existing and potential rates of
human consumption of fish, shellfish, and water. If the results of the
assessments of health risks and aquatic toxicity differ, the more stringent
result shall govern.
4. The
demonstration shall include information indicating that one or more assumptions
used in the risk assessment on which the existing criterion is based are
inappropriate at the site in question and that the proposed assumptions are
more appropriate or that physical or chemical characteristics of the site alter
the toxicity or bioavailability of the compound. Such a variance of
assumptions, however, shall not be a ground for a proposed alternative
criterion unless the assumptions characterize a factor specific to the site,
such as bioaccumulation rates, rather than a generic factor, such as the cancer
potency and reference dose of the compound. Man-induced pollution that can be
controlled or abated shall not be deemed a ground for a proposed alternative
criterion.
5. The petition shall
include all information required for the Department to complete its economic
impact statement for the proposed criterion.
6. For any alternative criterion more
stringent than the existing criterion, the petition shall include an analysis
of the attainability of the alternative criterion.
7. No later than 180 days after receipt of a
complete petition or after a petitioner requests processing of a petition not
found to be complete, the Department shall notify the petitioner of its
decision on the petition. The Department shall publish in the Florida
Administrative Register either a notice of rulemaking for the proposed
alternative criterion or a notice of the denial of the petition, as
appropriate, within 30 days after notifying the petitioner of the decision. A
denial of the petition shall become final within 14 days unless timely
challenged under section
120.57, F.S.
(d) The provisions of this subsection do not
apply to criteria contained in Rule
62-302.500, F.A.C., or criteria
that apply to:
6. Substances in
concentrations that injure, are chronically toxic to, or produce adverse
physiological or behavioral response in humans, animals, or plants (subsection
62-302.530(61),
F.A.C.).
7. Substances, other than
nutrients, in concentrations that result in the dominance of nuisance species
(subsection
62-302.200(20),
F.A.C.).
9. Any criterion or
maximum concentration based on or set forth in paragraph
62-4.244(3)(b),
F.A.C.
(e) Despite any
failure of the Department to meet a deadline set forth in this subsection (2),
the grant of an alternative criterion shall not become effective unless
approved as a rule by the Commission.
(f) Nothing in this rule shall alter the
rights afforded to affected persons by chapter 120, F.S.
(3) Type III Site Specific Alternative
Criteria (SSAC) for Nutrients: Upon petition by an affected person or upon
initiation by the Department, the Department shall establish, by Secretarial
Order, site specific numeric nutrient criteria when an affirmative
demonstration is made that the proposed criteria achieve the narrative nutrient
criteria in paragraph
62-302.530(47)(b),
F.A.C., and are protective of downstream waters. Public notice and an
opportunity for public hearing shall be provided prior to adopting any order
establishing alternative criteria under this subsection.
(a) The Department shall establish
a Type III SSAC if all of the following conditions are met:
1. The petitioner demonstrates that the
waterbody achieves the narrative nutrient criteria in paragraph
62-302.530(47)(b),
F.A.C.
a. For streams, such a demonstration
shall require:
I. Information on chlorophyll
a levels, algal mats or blooms, nuisance macrophyte growth,
and changes in algal species composition indicating that there is not an
imbalance in flora; and,
II. At
least two temporally independent SCIs, conducted at a minimum of two
spatially-independent stations representative of the waterbody or water segment
for which a SSAC is requested, with an average score of 40 or higher, with
neither of the two most recent SCI scores less than 35.
b. For lakes, such a demonstration shall
require:
I. Information on chlorophyll
a levels, algal mats or blooms indicating that there is not an
imbalance in flora or fauna; and,
II. At least two temporally independent LVIs,
with an average score of 43 or above.
c. SCIs and LVIs collected at the same
location less than three months apart shall be considered to be one sample,
with the mean value used to represent the sampling period. SCIs and LVIs shall
be conducted during the water quality sampling period described in subparagraph
62-302.800(3)(a)
2., F.A.C. There shall be a minimum of two assessments per station or lake,
with at least one assessment conducted during the final
year.
2. The petitioner
provides sufficient data to characterize water quality conditions, including
temporal variability, that are representative of the biological data used to
support the SSAC. The water quality data shall be collected in the same
waterbody segment as the biological monitoring stations and at a frequency and
duration consistent with the study design concepts described in the document
titled
Development of Type III Site Specific Alternative Criteria
(SSAC) for Nutrients, (DEP-SAS-004/11), dated October 24, 2011 (
http://www.flrules.org/Gateway/reference.asp?No=Ref-06044),
which is incorporated by reference herein. Copies of this document may be
obtained by writing to the Florida Department of Environmental Protection,
Water Quality Standards Program, 2600 Blair Stone Road, MS #6511, Tallahassee,
FL 32399-2400. Water quality data associated with extreme climatic conditions,
such as floods, droughts, and hurricanes, shall be excluded from the
analysis.
3. Demonstration of
downstream protection by one of the following methods:
a. Downstream waters are attaining water
quality standards related to nutrient conditions pursuant to Chapter 62-303,
F.A.C., or
b. If the downstream
waters do not attain water quality standards related to nutrient conditions:
I. The nutrients delivered by the waterbody
subject to the Type III SSAC meet the allocations of a downstream TMDL,
or
II. The nutrients delivered by
the waterbody are shown to provide for the attainment and maintenance of water
quality standards in downstream waters.
(b) The SSAC shall be established at a level
representative of nutrient loads or concentrations that have been demonstrated
to be protective of the designated use by maintaining balanced, natural
populations of aquatic flora and fauna. This demonstration shall take into
account natural variability by using statistical methods appropriate to the
data set, as described in Development of Type III Site Specific
Alternative Criteria (SSAC) for Nutrients
(DEP-SAS-004/11).
(6) Type II site specific alternative
criteria apply to the water bodies, or portions of the water bodies, listed
below. For dissolved oxygen site specific alternative criteria, normal daily
and seasonal fluctuations above the levels listed in the table below shall be
maintained. For site specific alternative criteria with seasonal limits, the
generally applicable criteria in Rule
62-302.530, F.A.C., apply at
other times of the year.
Water Body and
Class
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Site Specific Alternative
Criteria
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County(s)
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(a) Marine portions of the lower St. Johns River and
its tributaries between Julington Creek and the mouth of the river. Class
III.
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Dissolved Oxygen not less than a minimum
concentration of 4.0 mg/L, and a Total Fractional Exposure not greater than 1.0
over an annual
Click here to view
image evaluation period as defined by the following equation:
where the number of days in an interval is based on
the daily average Dissolved Oxygen concentration.
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Duval/Clay/St. Johns
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(b) Discharge wetlands at the Orange County Eastern
Water Reclamation Facility. Class III.
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pH of not greater than 8.5 standard units.
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Orange
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(c) Fenholloway River from river mile -0.1 to river
mile 3.5. Class III.
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The annual average compensation depth for
photosynthetic activity for phytoplankton shall not be decreased greater than
44.3 percent from background conditions as determined by an annual average
compensation depth of at least 0.66 meters at river mile 0.53 (station F06).
This value must be based on a minimum of 12 measurements during times when the
average flow at Cooey Island Bridge at river mile 7.15 measures less than 200
cubic feet per second.
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Taylor
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(d) Fenholloway River coastal waters (Apalachee Bay)
as spatially defined by the coordinates (83° 49' 29.95" W, 29° 59'
38.70" N), (83° 45' 3.61" W, 29° 57' 22.10" N), (83° 47' 23.50" W,
29° 54' 5.01" N), and (83° 51' 45.47" W, 29° 56' 25.71" N). Class
III.
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The average of the growing season (May 1 - October
31) average light (as photosynthetically active radiation between 400 and 700
nm) at 1 m depth at stations F10 (83° 47' 6.60" W, 29° 57' 4.20" N) and
F11 (83° 48' 27.00" W, 29° 57' 38.40" N) shall be 36 percent or more of
surface values based on a minimum of 12 measurements and will only apply during
years in which the growing season average flow at Hampton Springs Bridge (USGS
gage 02325000 near Perry) is less than or equal to 60 cubic feet per second
(after subtracting flows from permitted point sources).
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Taylor
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(e) Pace Swamp as delineated on the map titled "Pace
Swamp pH SSAC Boundary, " dated July 1, 2014 (http://www.flrules.org/Gateway/reference.asp?No=Ref-04591),
which is incorporated by reference herein. Copies of this document may be
obtained by writing to the Florida Department of Environmental Protection, 2600
Blair Stone Road, MS #6511, Tallahassee, FL 32399-2400. Class III.
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pH shall not exceed 7.0 standard units in more than
10 percent of the measurements collected in a calendar year, nor vary below
natural background.
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Santa Rosa
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