Fla. Admin. Code R. 62-302.800

Current through Reg. 50, No. 222; November 13, 2024

Section 62-302.800 - Site Specific Alternative Criteria

(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:

1. Biological Health (subsection 62-302.530(10), F.A.C.).

2. B.O.D (subsection 62-302.530(11), F.A.C.).

3. Odor (subsections 62-302.500(1), 62-302.530(21), 62-302.530(48), paragraphs 62-302.530(49)(b) and 62-302.530(52)(a), F.A.C.).

4. Oils and Greases (subsection 62-302.530(49), F.A.C.).

5. Radioactive Substances (subsection 62-302.530(57), F.A.C.).

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.).

8. Total Dissolved Gases (subsection 62-302.530(66), 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).

(4) The Department shall modify permits of existing sources affected in a manner consistent with the Secretary's Order.

(5) Additional relief from criteria established by this Chapter may be provided through exemption pursuant to Rule 62-4.243, F.A.C., or variances as provided for by Rule 62-110.104, F.A.C.

(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	Site Specific Alternative Criteria	County(s)
(a) Marine portions of the lower St. Johns River and its tributaries between Julington Creek and the mouth of the river. Class III.	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.	Duval/Clay/St. Johns
(b) Discharge wetlands at the Orange County Eastern Water Reclamation Facility. Class III.	pH of not greater than 8.5 standard units.	Orange
(c) Fenholloway River from river mile -0.1 to river mile 3.5. Class III.	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.	Taylor
(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.	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).	Taylor
(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.	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.	Santa Rosa

Fla. Admin. Code Ann. R. 62-302.800

Rulemaking Authority 403.061, 403.062, 403.087, 403.504, 403.704, 403.804, 403.805 FS. Law Implemented 403.021(11), 403.061, 403.087, 403.088, 403.141, 403.161, 403.502 FS.

Formerly 17-3.05(4), Amended 3-1-79, 10-2-80, 2-1-83, Formerly 17-3.031, Amended 6-17-92, Formerly 17-302.800, Amended 5-15-02, 1-9-06, 6-28-06, 12-7-06, 8-5-07, 8-5-10, 7-3-12, 8-1-13, Amended by Florida Register Volume 40, Number 185, September 23, 2014 effective 10/6/2014, Amended by Florida Register Volume 42, Number 021, February 2, 2016 effective 2/17/2016.