Res 43-09RESOLUTION NO. 43-09
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, SUPPORTING THE PETITION FOR
RULE-MAKING TO AMEND FLORIDA WATER QUALITY
STANDARDS BY REVISING EXISTING WATER BODY
CLASSIFICATIONS TO PROVIDE NEW AND MORE APPROPRIATE
BENEFICIAL USES AND USE EXPECTATIONS, FILED BY THE
FLORIDA STORMWATER ASSOCIATION, INC., WITH THE FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION; AND
PROVIDING FOR AN EFFECTNE DATE.
WHEREAS, all surface waters of the State of Florida, including fresh, marine, wetland, flowing or
intermittent, natural ox manmade, pristine or impacted, are classified by only five (5) Designated Uses; and
WHEREAS, the extsting water body classification system was created in 1968 and has not been
amended since; and
WHEREAS, the Florida Department of Environmental Protection recognized in a report filed with
the Florida Legislature in February 2DD5 that the current water body classification system, developed to address
point source pollution, is too narrow to apply to the wide variety of water bodies existing throughout the State
of Florida, the natural conditions of which fluctuate over time; and
WHEREAS, the Deputy Secretary for the Florida Department of Environmental Protection stated
in an Apri12007 Letter to the Media that it is crucial that the water body classification system accurately reflect
the actual purpose of each water body; and
WHEREAS, the success of the Total Maximum Daily Loads ("TMDL") program, which utilizes
water quality standards to determine water body impairment, depends upon appropriate use designations and
expectations of water bodies; and
WHEREAS, the present water body classification system is ineffective to accurately measure water
quality such that some water bodies have been mistakenly classified as impaired, leading to the adoption of
unnecessary TMDLs and the diversion of limited resources from urgent water quality problems; and
WHEREAS, the costs to local governments statewide to implement the TMDL program are
estimated to be approximately $50 billion;
WHEREAS, in this time of great economic hardship, tax revenue must be used in the mast
efficient and effective manner; and
WHEREAS, the Designated Uses and Classification Refinement Policy Advisory Committee
("PAC"), an expert policy advisory committee, was previously convened by the Florida Department of
Environmental Protection to study and make recommendations regarding the water body classification system;
and
WHEREAS, in 2007 the PAC developed a proposed water body classification system, combining
Beneficial Use Designations and Beneficial Use Expectations, which comprise the goals and expectations to be
attained in each water body and provide a basis for deriving water quality criteria and other protections to
maintain each Beneficial Use; and
WHEREAS, the proposed water body classification system consists of seven Human Use
Designations and four Aquatic Life Use Designations as well as corresponding Beneficial Use Expectations;
and
WHEREAS, this classification system adequately addresses the goals and concerns expressed by the
Florida Department of Environmental Protection; and
WHEREAS the Florida Stormwater Association, Inc., has filed with the Florida Department of
Environmental Protection its Petition for Rule-Making to Amend Florida Water C~uality Standards by Revising
Existing Water Body Classifications to Provide New and More Appropriate Beneficial Uses and Use
Expectations.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AS FOLLC}WS:
Section 1. The Cite of Delray Beach supports the Petition for Rule-Making to Amend Florida
Water Quality Standards by Revising Existing Water Body Classifications to Provide New and More
Appropriate Beneficial Uses and Use Expectations, filed by the Florida Stormwater Association with the
Florida Department of Environmental Protection.
Section 2. The City of Delray Beach urges the Florida Department of Environmental Protection to
establish a water body classification system similar to the proposed water body classification system outlined in
the Petition for Rule-Making.
Section 3. This resolution shall take effect iintnediately upon its adoption.
PASSED AND ADOPTED in regular session on this the day of ~`?~
ATTEST:
City Clerk
2 RES. NO. 43-09
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EDELRAY BEACH
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CERT~FCATI4N
I, CHEVELLE NUBIN, City Clerk of the City of Delray Beach, do hereby
certify that the attached document is a true and correct copy of Resolution No.
43-09 as the same was passed by the Delray Beach City Commission in regular
session on the 22"d of September 2009.
IN WITNESS WHEREOF, I have hereunto set my hand and the official
seal of the City of Delray Beach, Florida, on this the 23r~ day of September,
2009.
• ~ Y
Chevelle D. Nubia, CMC
City Clerk
City of Delray Beach, Florida
{SEAL}
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Page 1 of 1
MEMORANDUM
TO: Mayor and City Commissioners
FROM: Randal L. Krejcarek, P.E., LEED AP, GI,SP, City Engineer
Richard C. Hasko, PE, Environmental Services Director
THROUGH: David T. Harden, City Manager
DATE: September 4, 2009
SUBJECT: AGENDA ITEM S.B. -REGULAR COMMISSION MEETING OF SEPTEMBER 22 2009
RESOLUTION N0.43-fl9
ITEM BEFORE COMMISSION
Consider approval of Resolution 43-09 in support of the petition by the Florida Stormwater Association.
BACKGROUND
The Florida Stormwater Association has filed a petition (see attached) to the Environmental Regulation
Commission requesting that rulemaking be initiated to revise Florida's system of classifying water
bodies and determining their use. Florida's recently-initiated rulemaking effort to adopt numeric nutrient
criteria has heightened the need for a more reasonable system of classifying waters and determining
their use.
The establishment of numeric nutrient criteria will have huge fiscal implications for the communities
that will be required (through the NPDES MS4 permits and the TMDL program) to use tax dollars to
restore water bodies. It is critical that water bodies be classified in a way that reflects the actual purpose
of the water body, whether rt is a canal, a stream, or a spring to ensure that our critical waterways are
protected and our tax dollars are well spent.
RECOMMENDATION
Staff recommends approval.
httpa/miweb001/AgendasBluesheet.aspx?ItemID=2586&MeetinglD-218 9/23/2009
RESOLUTION N0.43-09
A RESOLUTION OF THE QTY COM1VIlSSION OF THE QTY OF
DELRAY BEACH, FLORIDA, SUPPORTING THE PETITION FOR
RULE-MAKING TO AMEND FLORIDA WATER QUALITY
STANDARDS BY REVISING EXISTING WATER BODY
CLASSIFICATIONS TO PROVIDE NEW AND MORE APPROPRIATE
BENEFIQAL USES AND USE EXPECTATIONS, FILED BY THE
FLORIDA STORMWATER ASSOCIATION, INC., WITH THE FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, aIl surface waters of the State of Flarida, including fresh, marine, wet]ancl, flowing or
intermittent, natural. or manmade, pristine or impacted, are classified by anly five (5} Designated Uses; and
WHEREAS, the existing water body classification system was created in 19(S and has xrot been
arr~eruded since; and
WHEREAS, the Florida Depattcr~ent of Environmental Protection recognized in a report filed with
the Florida Legislature in February 2005 that the current water body classification system, developed to address
point source pollution, is too narrow to apply to the wide variety of water bodies existing throughout the State
of Florida, the natural conditions of which fluctuate over time; and
WHEREAS, the DeputySecr~etaryfor the Florida Dot of Environmental Protection stated
in an April 2007 Letter to the Media that it is cnx~al that the water body classification system accurately reflect
the actual purpose of each water body, and
WHEREAS, the success of the Total Ma~amum Daily Loads ("TMDL") prograrr~y which utilizes
water quality standards to determine water body impairr~it, depends upon appropriate use designations and
expectations of water bodies; and
WI~REAS, the present water body classification system is ineffective to accurately measure water
quality such that some water bodies have been mistalcer-ly classified as impaired, leading to the adoption of
unnecessary TMDLs and the diversion of lirruted resources from urgent water quality problems; and
WHEREAS, the costs to local governrnel~ts statewide to implement the TMDL program are
estimated to be approximately $50 billion;
WHEREAS, in this time of great econan~ic hardship, tax revenue must be used in the most
efficient and effective manner; and
WHEREAS, the Designated Uses and Classification Refirlert~nt Poficy Advisory Committee
("PAC"}, an expert policy advisory committee, was previously convened by the Florida Department of
Environmental Protection to study and make recommendations regarding the water body classification system;
and
WI iEREAS, in 2007 the PAC developed a proposed water body classification systerry combining
Beneficial Use Designations and Beneficial Use Expectations, which comprise the goals and expectations to be
attained in each water body anal provide a basis for deriving water quality criteria and other protections to
maintain each Beneficial Use; and
WHEREAS, the proposed water body classification system consists of seven Human Use
Designations and four Aquatic Life Use Designations as w~ as corresponding Beneficial Use Expectations;
and
WHEREAS, this classification system adequately addresses the goals anal concerns expressed by the
Florida Departrr~ent of Environmental Protection; and
WHEREAS the Florida Stormwater Association, Inc., has filed with the Florida De~rtment of
Environmental Protection its Petition for Rule-Making to Amend Florida Water Quality Standards by Revising
Existing Water Bady Classi.[ications to Provide New and More Appropriate Beneficial Uses and Use
Expectations.
NOW, THEREFORE, BE lT RESOLVED BY THE QTY CONMSSION OF THE QTY OF
DELRAY BEACH, FLORIDA, AS FOLLOVI~:
Section 1. The City of Delray Beach supports the Petition for Rule-Malting to Amend Florida
Water Quality Standards by Revising Existing Water Body Classifications to Provide New and Mare
Appropriate Beneficial Uses and Use Expectations, filed by the Florida Starmwater Association with the
Florida Department of Environmental Protection.
Section 2. The City of Delray Seach urges the Florida. Department of Environmental Protection to
establish a water body classification system similar to the proposed water body classification system outlined in
the Petition for Rule-Making.
Section 3. This resolution shall take effect inunediately upon its adoption
PASSED AND ADOPTED in regular session on this the day of 2009.
ATTEST:
City Clerk
MAYOR
2 RES. N0.43-09
STATE OF FLORIDA -ENVIRONMENTAL REGULATION COMMISSION
FLORIDA STORMWATER ASSOCIATION, INC.,
A FLORIDA NOT-FOR PROFIT CORPORATION,
Petitioner
FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Respondent
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PETITION FOR RULE-MAKING TO AMEND FLORIDA WATER QUALITY STANDARDS
BY REVISING EXISTING WATER BODY CLASSIFICATIONS TO PROVIDE NEW AND MORE
APPROPRIATE BENEFICIAL USES AND USE EXPECTATIONS
1. Petitioner, the Florida Stormwater Association, Incorporated {hereafter "FSA") is a not-for profit
Florida Corporation, a voluntary, membership based organization whose mission is to help its members
improve water quality through enhanced stormwater management practices. The association has 29S
organizational members including cities, counties, water management and other districts, academic
institutions, and consulting and engineering firms, all engaged in some aspect of stormwater
management and with an interest in water quality-related issues. Petitioner's address and phone number
are as follows:
Florida Stormwater Association, Inc.
CIO Kurt A. Spitzer, Executive Director
719 East Park Avenue
Tallahassee, FL 32301
Telephone: 8 50-5 61-0944
2. The Florida Department of Environmental Protection (hereafter the "Department" or "DEP"}, by
the Environmental Regulation Commission, is authorized by Sections 403.061, 443.804 and 443.845,
Florida Statutes, to adopt and amend Florida Water Quality Standards which include Classifications and
Designated Uses of waters that are the subject of this petition. The existing rule to be amended is
Section b2-302.400 of Chapter 62-302, Florida Administrative Code (hereafter "FAC")
3. This petition is authorized by Section 120.54, Florida Statutes, and Petitioner, FSA, has standing
to file the petition by the provisions of Section 62-302-400, FAC, and by the substantial interests of its
members in the subject matter ofthis rulemaking. City, county and other members of FSA engage in
activities that are regulated by the Department and are required to obtain Municipal Separate Storm
Sewer System permits under the National Pollution Discharge Elimination System program from the
Department.
RULEMAKTNG REQUESTED
4. This petition seeks the amendment of sub-sections (1) through (12) of Section 62-302-400, FAC,
which establish a Classification of Surface Waters according to Designated Uses. By the provisions of
existing sub-section (1) of 62-302-400, FAC, all surface waters of the State are classified by five
designated uses; which-are predominantly human or economic uses of waters in the State. Ali surface-
waters of the State, including fresh, marine, wetlands, flowing or intermittent, natural or manmade,
pristine or impacted, axe, by sub-section (10), classified as Class 111 unless otherwise included in the
Class IV exception to Class 1T1 or specifically placed in other Classes elsewhere in the Rule.
5. This petition seeks the adoption of a new water6ody classification system, similar to that as was
developed by an advisory committee to the Department known as the Designated Use and Classification
Policy Advisory Committee ("PAC") to include seven Human Uses and four Aquatic Life Uses, as
fOllOWS:
HU-1 Protection of potable water supply suitable for consumption
following conventional drinking water treatment, fish consumption,
full body contact
HU-2 Protection of shellfish harvesting for human consumption, fish
consumption, full body contact
HU-3 Protection of full body contact and possible ingestion and fish
consumption
HU~4 Protection of incidental contact and fish consumption
HU-5 Contact lzmited or restricted due to unsafe conditions, protection
offish consumption
HU-6 Protection of waters for crop irrigation or consumption by livestock
HU-7 Utility and industrial uses
AL-1 Propagation and maintenance of aquatic communities that approximate
the biological structure and function of natural background
AL-2 Propagation and maintenance of a healthy, well-balanced aquatic
community with minimal deviation of biological structure and function
relative to natural background
AL-3 Protection of an aquatic community with moderate deviation of
Biological structure and function relative to natural background
AL-4 Protection of an aquatic community with substantial deviation of
Biological structure and function relative to natural background
The term "natural background," used in the description of aquatic life uses above has the same
meaning expressed in the Definitions of existing DEP rule 62-302, P.A.C.: "the condition of waters in
the absence afhumon-induced alterations based on the best scientific information available to the
Department."
6. The Designated Uses established by a Waterbody Classification System comprise the goals or
expectations that should be attained in each waterbody and provide a basis for deriving water quality
criteria and other protections that will maintain the adopted benef cial uses. The PAC recognized that
one of the greatest deficiencies in the existing State Water Quality Standards is that no Designated Use
Expectations have been adopted. It was further the consensus of the PAC that the following Use
Expectations should be adopted together with Beneficial Use Designations:
HU-1 Maintaining a level of water quality suitable for potable water or
Intended to be suitable after receiving conventional drinking water
treatment. Also protective of HU-3 uses.
HU-2 Water shall contain no substances in concentrations that wi11 make
shellfish inedible due to undesirable tastes or would cause a hazard
to humans after consumption. Also protective of IIIJ-3 uses,
HU-3 Recreational uses may support prolonged and direct contact with the
water, involving minimal risk of ingesting water in quantities sufficient
to pose a health hazard. Fish consumption involves maintaining a
level of water quality that wi11 prevent any unpalatable flavor or
accumulation of harmfiil substances in fish tissue
HU-4 Recreational uses may result in contact with the water that is either
incidental or accidental. The probability of ingesting appreciable
quantities of water is minimal. Water depth may preclude fu11 body
immersion. Also protective of f sh consumption as in HU-3
HU-5 The activities or conditions expected in the waterbody make it unsafe or
not possible to conduct recreational activities. Also protective of
fish consumption as in HU-3.
HU-6 Maintaining a level of water quality useful for consumption of water by
livestock or surface water withdrawal fox irrigation of cropland. No
protection of recreational activities or fish consumption.
HU-7 Maintaining a level of water quality useful for utility and industrial
purposes. No protection of recreational activities or fish consumption.
AL-1 Natural structural, functional and taxonomic integrity is preserved or
approximated; structure and function similar to natural community;
ecosystem level functions are fully maintained
AL-2 Overall balanced distribution of all expected groups of taxa; ecosystem
fixnctions largely maintained. May have changes in biological structure
evidenced by the replacement of sensitive ubiquitaus taxa by more tolerant
taxa.
AL-3 Changes in biological structure and function have resulted in an altered
aquatic community. Represents the iransitian between a community
dominated by sensitive or expected taxa to one dominated by tolerant taxa.
AL-d Substantial changes in biological structure and function have
resulted in a limited aquatic community. Community consists
primarily of tolerant taxa able to survive and propagate under
severe or variable environmental conditions.
The petitioner xequests adoption of a system similar to these Beneficial Uses Expectations together with
corresponding Use Designations as proposed by the PAC.
7. In adapting these proposed Beneficial Uses and Expectations there will be a need to adopt
appropriate implementing provisions, similar to those in the existing 62-320-400, FAC, which can be
developed in the course of further rule development and adoption proceedings. These implementing
provisions may include a process for further refinement of Beneficial Uses and Expectations. Further,
the adoption of the proposed Beneficial Use Classes is the first step in three phases of rule making.
Fallowing adoption of a new Classification System, appropriate criteria for each class will be needed
and finally the designation of surface watexs to the appropriate Classification of Human and Aquatic
Life Support Uses.
WHY THE PROPOSED RULEMAKING 1S NEEDED
$. The Department's existing water classif cation system, recognizing only five Designated Uses,
was adopted by the Pollution Control Board in 1968. In the mid-1970'x, following enactment of the
Federal "Clean Water Act" in 1972, the Florida Legislature reorganized the State's environmental
agencies by creating the Department of Environmental Regulation (the precursor to DEP} and providing
the Environmental Regulation Commission with the exclusive authority to adopt water quality
standards. In 1978, the Environmental Regulation Commission adopted a major expansion of water
quality criteria, based on EPA Guidance Documents, but retained the existing Classification system with
no change from what existed in 1968. For the most part, the new water quality criteria were applied to
Class TII waters that included the great majority of all waters, of all types, in the State.
9. As noted above, the Designated Uses and corresponding Use Expectations established by a
Waterbody Classification System provide the goals that should be attained in each waterbody. EPA has
in recent years encouraged refinement of Designated Uses and the adoption of Use Expectations to mare
effectively protect the wide variety of waters as exist in Florida. EPA has also in recent years placed
more emphasis on the management of ambient water quality through the Total Maximum Daily Loads
{hereafter "TMDL") program, recognizing the lunitations of protecting waters primarily through point
source discharge controls. The Department has concluded that the existing Water Body Classification
system needs improvement as a foundation for the TMDL and other water resource management
programs.
10. In February of 2005, the Department filed a report with the Florida Legislature assessing the first
five years of the TMDL program. In that Report, the Department discussed the inadequacies of
existing Water Body Classifications in the following relevant excerpts:
In the early 1970's, there was no clear understanding of how, comprehensively, to
evaluate overall water quality or protect whole aquatic ecosystems from all sources
ofpollution, which are the exact objectives of the Watershed Restoration Act of
1999. This contradiction of alder standards and newer mandates has led to a
number of dilemmas, among them:
Most Florida waterways are identified as Class III, "fishable and swimmable."
It has become clear in recent years that this classification, which includes rivers,
streams, lakes and estuaries as well as wetlands, urban drainage ditches, urban
lakes and canal systems, is too broad. Some of these water bodies ar water
body types never did and indeed should not be expected to provide the same
quality of "swimmable or fishable" recreation as others.
• Florida's freshwater dissolved oxygen (DO} criterion requires oxygen levels in
surface waters to be at or above five milligrams per liter (5 rng/l} at all times at
all places, ostensibly in an effort to protect water quality. In fact, wetlands,
springs, drainage ditches and canals do not typically exist, whether naturally or
as artificially created, with DO levels as high as 5 mgll, often because of the
significant inflow oflow-oxygen ground water into surface waters. In effect,
some water bodies are being required to meet unnatural conditions or
conditions that are otherwise caused by pollutants.
As noted. in the introduction to this section, water quality standards were
developed primarily to address regulation of point sources of pollution and they
are applied, typically, at the end of the discharge pipe, to be met at all times.
It is not possible to apply this same logic to entire rivers, lakes, streams,
estuaries and other surface waters, the conditions of which vary naturally over
time, and which simply will not meet every water quality criterion at every
moment in every location.
Florida's existing surface water quality standards are the benchmark against which
the Department must measure water body impairment and determine whether
TMDL's, and subsequent clean-up actions, are necessary. The circumstances
outlined above have required DEP to list as impaired some water bodies that likely
are not, in fact, impaired. The result is that DEP may have to develop and adopt
unnecessary TMDLs, wasting limited resources and diverting attention from real
water quality problems.
11. Mare recently, in April of 20D7, responding to concerns expressed regarding the PAC, Mimi
Drew, Deputy Secretary of DEP wrote to the Florida Media, including the following excerpts:
All surface waters in the state are currently classified by one of five designated
uses. By far the largest number of waters in the state falls into a broad, general
category known as "Class III" waters. This includes drainage ditches, upland cut
canals and other manmade features. The Class III designation brings with it the
requirements to meet certain minimum water quality standards. In many cases, due
to the manmade nature of the waters, such standards are not attainable and are
unnecessary to support the practical use of those artif vial waters. Conversely,
waters, such a springs, require much mare stringent protection than is currently
required within our classif cation system to ensure that their fragile biological
systems are protected.
This system, used over the past 3 0 years, has been successful in addressing
regulatory actions needed to reduce pollutants, but does not effectively address
watershed restoration projects. Much has changed over that time frame -science
and technology have improved and our restoration efforts should as well.
Decisions on water quality standards have huge fiscal implications for the
communities that will be asked to use tax dollars to restore water bodies.
Therefore, it is critical that water bodies are classified in a way that reflects the
actual purpose of the water body, whether it is a ditch, a stream, ar a spring -- to
ensure that our critical waterways are protected and our tax dollars are well spent.
12. There has been a similar recognition at the national level that designated uses and expectations
rr~ust be revised in order to implement the TMDL program and related environmental management and
restoration efforts. In March of 2000 the U.S. General Accounting Off ce reported on the lack of data
and program guidance available to states that are needed to establish water quality standards, identify
impaired waters and adapt TMDLs. In October 2N0 Congress suspended EPA's implementation of
"final" TMDL program rules and later requested that the National Research Council of the National
Academy of Science assess the scientific basis of the TMDL program and availability of sufficient data
and guidance for program purposes.
13. In response to Congress's request, the "TMDL Commaittee" of the National Research Council,
chaired by Professor Kenneth H. Reckhow, Ph.D,, of Duke University, came to several broad
conclusions and made recommendations far the use of scientific data and information within the TMDL
program. For purposes of this petition, the relevant recommendations are summarized as follows:
• The success of the TMDL program should not be measured by the number of
TMDLs adopted or the numbex of NPDES permits issued but rather demonstrated
by the achievement of a water body's designated use and use expectations.
~ States should develop appropriate use designations and expectations in advance of
assessment and refne these use designations prior to TMDL development
The Clean Water Act goal of "fishable and swimmable" is too broad as an
expression of the designated use; greater stratification of designated use is needed
in order to take advantage of the best scientific data and methods of analysis.
14. The TMDL Committee recognized that the TMDL program is dependent on adopting appropriate
water quality standards which involves both technical and policy decisions. Establishing appropriate
designated uses and use expectations for a state's water bodies is primarily a policy decision that can be
"informed by technical analysis." The designated use and use expectation provides the goal for ambient
water quality conditions and should be, as the Committee recommended, as specific as possible. Rather
than limit the "use" to "recreation" as in Florida's Class TIT designated use, the more specific or stratified
uses could distinguish between beach use, primary contact and secondary contact. Likewise, rather
than a use supporting a "well balanced population of fish and wildlife," as in Class III, the more
stratif ed uses could support specific aquatic, biological communities.
15. The TMDL Committee noted the need to consider human activities that have altered aquatic
ecosystems and to recognize that an appropriate designated use may not be the aquatic condition
existing in a water body's predisturbance condition. The decision should reflect a policy consensus
based on the current condition of the water body, the predistuxbance condition and the cost of achieving
the designated use and expectation. These issues have not been addressed in Florida. Finally, the
Committee recognized that if water quality standards (including use designations, expectations and
criteria) are flawed, all steps in the TMDL process and related environmental management decisions
will be affected. An appropriate use designation and expectation together with appropriate criteria is
needed prior to TMDL development and implementation.
16. In June of 2003 the General Accounting Office {hereafter "GAO") reported to the U.S. House
Committee an Transportation and Infrastructure on the need for further EPA guidance to States for the
development of Water Quality Standards that will improve the TMDL program. In general, the GAO
concluded that more accurate water quality standards are critical in making scientifically based
determinations about water bodies most in need of further protection. Without improved standards,
including designated uses and use expectations, there is a risk of wasting valuable resources by over
protecting some waters and under protecting others.
17. Based on a survey of all 50 states and the District of Columbia, the GAO Report noted the
following responses:
• Nearly all states reported that further water body use designation changes were
needed but have not been made because of inadequate data, resistance from
interested and affected groups and uncertainty as to whether use changes will be
acceptable to EPA and as to the information needed to support the use changes.
• New data collected by states provides compelling evidence that many designated
uses are either under-or over-protective.
• EPA Headquarters officials acknowledge the needs and have formed a national
working group to develop additional guidance on designated use changes.
• Improved water quality standards, including use designations ar~d expectations,
will result in different impaired waters for TMDL development.
18. On July 7, 1998 the Environmental Protection Agency published in the Federal Register (Vol 63.
No. 129) an Advance Notice of Proposed Rule Making seeking comment on issues relating to Water
Quality Standards including Use Designations and Use Expectations. EPA noted that:
• It is in designating uses that States anal Tribes establish the environmental goals
for their water resources, and it is in designating uses that States and Tribes are
allowed to evaluate the attainability of those goals.
~o
In establishing uses and use expectations, together with appropriate criteria to
protect those uses, "a State or Tribe often weighs the environmental, social and
economic consequences of its decisions in designating uses." The regulation
allows the State or Tribe some flexibility in weighing these considerations and
adjusting these goals over time.
• Appropriate application of this process involves a balancing of environmental,
scientific, technical, and economic and social considerations as well as public
opinion and is therefore one of the most challenging areas of the current
regulation.
There is however, a need for the use designation process, whether implementing a
general ar specific classification system, to clearly articulate and differentiate
intended levels of protection with enough specificity so that decision~makers can
appropriately develop and implement the standards on a site- or watershed-
specific basis and sa that the public can understand, identify with, and influence
the goals set for the waters they care about.
Lack of precision in uses and criteria assigned to protect those uses can
inadvertently result in either a lesser or greater level of protection than was
actually intended when the water quality standards were adopted
• The Agency's current thinking is that there is a growing need to more precisely
tailor use descriptions and criteria to match site specific conditions, ensuring that
uses and criteria provide an appropriate level of protection which, to the extent
possible, is neither over nor under protective.
19. Petitioner has estimated that the {capital) costs of implementation of the TMDL program to local
governments alone is approximately $SO billion. Programs requiring expenditures of this magnitude
must be able to assure taxpayers that each dollar spent is done so in the most effective manner, resulting
in significant improvements to Florida's water bodies and the natural environment, and significant
improvements in human benefit and use.
20. There can be no doubt that Florida's Designated Use Classifications and Use Expectations da not
reflect the recommendations of many State and Federal sources summarized in this Petition nor do they
provide an adequate foundation for the difficult decisions needed to adopt numeric nutrient and other
11
criteria for Florida's waters and to fully implement the TNIDL program. The Petitioner cannot assure
the Environmental Regulation Commission that the Rulemaking proposed in this Petition will be easy.
On the other hand, the Petitioner is confident that the benefts of a solid foundation for Water Quality
Standards provided by more appropriate Designated Uses and Expectations will justify the effort. In
these times of financial stress, it is even more important to demonstrate that the expenditures that must
be incurred will be justified by cost effective progxams.
Respectfully Submitted,
The Florida Stormwater Association, Inc.
,.,
Kurt A. Spitzer, Executive Director
12