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Phosphorus Pollution in Florida’s Waters 1

Florida PIRG Education Fund

Tony DutzikNina Baliga

Winter 2004

PHOSPHORUS POLLUTIONIN FLORIDA’S WATERS

The Need for Aggressive Action to Protect Florida’sRivers and Streams from Nutrient Runoff

2 Florida PIRG Education Fund

ACKNOWLEDGMENTS

The authors gratefully acknowledge Dr. Paul Parks, Lake Okeechobee Project Director ofthe Florida Wildlife Federation and David Guest, Managing Attorney of the EarthjusticeLegal Defense Fund in Tallahassee for providing editorial review of this report. Thanksalso to Mark Ferrulo, Susan Rakov, Jasmine Vasavada and Brad Heavner for their edito-rial assistance and Will Coyne for his research assistance.

The Florida PIRG Education Fund thanks the Beldon Fund, the Elizabeth Ordway DunnFoundation and the Educational Foundation of America for their generous support ofthis project.

The authors alone bear responsibility for any factual errors. The recommendations arethose of the Florida PIRG Education Fund. The views expressed in this report are those ofthe authors and do not necessarily reflect the views of our funders or those who providededitorial review.

Copyright 2004 Florida PIRG Education Fund.

The Florida Public Interest Research Group (Florida PIRG) Education Fund is a nonprofit,nonpartisan 501(c)(3) organization working for environmental protection, consumerrights, and good government throughout Florida.

For additional copies of this report, send $20 (free to nonprofits and the media) to:

Florida PIRG Education Fund704 West MadisonTallahassee, FL 32304

For more information on Florida PIRG or the Florida PIRG Education Fund, pleasecontact our office at 850-224-3321 or visit the Florida PIRG Web site atwww.floridapirg.org.

Cover Photo: Algae Bloom in Lake Okeechobee, Credit: South Florida WaterManagement District

Design by Jon Hofferman/Carissimi Publications


TABLE OF CONTENTS

EXECUTIVE SUMMARY 4

INTRODUCTION 6

PHOSPHORUS AND THE NUTRIENT POLLUTION PROBLEM IN FLORIDA 7

What Is Nutrient Pollution and Why Is It a Problem? 7The Role of Phosphorus 8How Much Phosphorus Is Too Much? 9

FLORIDA POLICY REDUCES PROTECTION OF RIVERS AND STREAMS

FROM PHOSPHORUS POLLUTION 12

Why “Impairment” Matters 12The Impaired Waters Rule: Defining Away “Impairment” 13Listed Nutrient Impairments Drop Under Impaired Waters Rule 17Phosphorus Problems in Florida Rivers and Streams: Four Examples 19

HOW FLORIDA CAN CONTROL PHOSPHORUS POLLUTION 25

Watershed-Based Solutions 25Statewide Solutions 26The Need to Act 28

METHODOLOGY 29

NOTES 30


EXECUTIVE SUMMARY

F rom the Panhandle to Florida Bay, theexcess flow of nutrients into Florida’swaterways has led to serious water

quality problems—ranging from dramaticchanges in the distribution of plant speciesin parts of the Everglades to algae bloomsand fish kills in waterways such as LakeApopka and Lake Okeechobee. But whileFlorida has made progress against nutrientpollution in some specific cases, the state’soverall response has been insufficient toensure the cleanup of already polluted wa-terways and the prevention of future nu-trient pollution problems.

Nitrogen and phosphorus are the twosubstances largely responsible for Florida’snutrient-related water quality problems.Runoff from farms and urban areas contrib-utes to the flow of both nutrients intoFlorida waterways. While aggressive ef-forts have been undertaken to reduce nu-trient levels in specific waterbodies such asLake Apopka, and while state policy en-courages the reduction of nitrogen runofffrom farms, Florida currently lacks an ef-fective, statewide policy to identify nutri-ent-impaired rivers and streams and reducerunoff of phosphorus.

The case of phosphorus pollution of riv-ers and streams provides an example ofhow the lack of an effective nutrient policycan result in long-term degradation of wa-ter quality.

Phosphorus is a key contributor to al-gae blooms and other harmful changes inFlorida waterways.

• Nutrient overenrichment hascontributed to algae blooms thathave destroyed sport fish popula-tions in Florida lakes, the growthof toxic microorganisms that havecaused fish kills and endangeredhuman health, and threats to coralreefs and underwater vegetation incoastal areas.

• Phosphorus is commonly thoughtto be the most important nutrientregulating plant growth in inlandwaterways, while nitrogen plays amore important role in estuariesand coastal waters. Within Florida,however, phosphorus often playsan important role in coastal waterswhile nitrogen plays a role in someinland waters—meaning thatefforts to restore many waterwaysmust focus on control of bothpollutants.

Several important Florida waterwayssuffer from elevated phosphorus levels,yet the Florida Department of Environ-mental Protection (DEP) has not desig-nated these waterways as “impaired” fornutrients.

• Phosphorus levels in the Fen-holloway River, the SuwanneeRiver and Ochlockonee River eachexceeded EPA’s recommendedcriteria for phosphorus pollutionmore than 80 percent of the timeduring the 1990s—indicating thepresence of potentially harmfullevels of phosphorus. Yet, the DEPdid not originally propose listingany of these three waterways asimpaired for nutrients based onthe state’s Impaired Waters Rule.(The Suwannee River was lateradded back onto the impairedwaters list for nutrients.)

• Since the adoption of the ImpairedWaters Rule—which sets stan-dards for identifying waterwaysthat are “impaired” by pollutionand eligible for waterway-specificcleanup plans—more than 60stream and estuary segments havebeen proposed for removal from


the state’s list of nutrient-impairedwaters.

Flaws in Florida’s Impaired WatersRule are likely responsible for the“delisting” of many rivers and streamswith nutrient pollution problems—mean-ing that cleanup plans for these waterwayswill not be completed.

• The Impaired Waters Rule relieson average mean levels of chloro-phyll-a (a measure of algaegrowth) to determine nutrientimpairment in streams andestuaries. Chlorophyll-a has beenshown to be an unreliable indica-tor of nutrient levels in rivers andstreams and does not measure thegrowth of all the different types ofalgae that can harm water quality.In addition, the use of annualmean concentrations of chloro-phyll-a ignores the problemscaused by seasonal spikes in chlo-rophyll concentrations in water-ways that can lead to fish kills andother negative consequences. EPAguidance recommends usingchlorophyll-a as one of severalmeasures of nutrient impair-ment—not the sole measure.

• At least five loopholes in Florida’sImpaired Waters Rule eliminateevidence that should be used todemonstrate nutrient impairmentor other water quality problems.The loopholes serve to raise thebar for demonstrating impair-ment—meaning that some pol-luted waterways will not becleaned up.

To clean up nutrient pollution, Floridamust fix the Impaired Waters Rule, adoptstrong numeric standards for phosphorus

and nitrogen levels in waterways, andtake action to prevent future nutrient pol-lution problems by reducing runoff fromagricultural and urban sources.

• Close the loopholes: Floridashould close loopholes in theImpaired Waters Rule that wouldallow some waterways withsignificant pollution problems tobe deemed “not impaired” andexempted from planning andcleanup.

• List all impaired waterways:Florida should eliminate theannual averaging requirement forchlorophyll-a from the ImpairedWaters Rule and instead requirerivers and streams that demon-strate spikes in chlorophyll-aconcentrations to be listed asimpaired. In addition, the stateshould clarify the rule to requirelisting of waterways as impaired ifnutrient-caused disruptions offlora and fauna are observed.

• Develop tight numeric standards:Florida should proceed with thedevelopment of tight, realisticnumeric standards for phosphorusand nitrogen pollution to augmenta revised chlorophyll-a standardfor rivers and streams.

• Adopt additional statewiderunoff rules: Florida should alsoconsider new statewide policies toreduce runoff from farms andurban areas. Wisconsin, whichrecently adopted new rulesrequiring the development ofnutrient management plans inagriculture and construction, is agood model for such a strategy inFlorida.


INTRODUCTION

W ater pollution comes in manyforms—the discharge of toxicchemicals and heavy metals

from industrial facilities, the deposition ofhealth-threatening mercury into waterwaysfrom smokestacks many miles away, therelease of bacteria-contaminated sewageand animal wastes.

But perhaps the most insidious and dif-ficult-to-control problems affectingFlorida’s waterways stem from the flow ofnutrients into the state’s streams, rivers,lakes, estuaries and coastal waters. Unlikemost pollutants, nutrients are actually nec-essary for the survival of healthy aquaticecosystems. Too many nutrients, however,can spawn the overabundant growth of al-gae and toxic microorganisms, potentiallycausing both short-term catastrophes—such as massive fish kills—as well as long-term ecological imbalances that can takeyears, if not decades, to make right.

Nutrient pollution has captured head-lines in Florida for its role in the degrada-tion of several of the state’s most impor-tant ecosystems. Lake Apopka, once a des-tination point for anglers from across thecountry, saw its bass population virtuallydisappear as nutrient-fueled algae growthturned the lake a mucky pea green. LakeOkeechobee has experienced lake-wideblooms of blue-green algae. Algae blooms,the death of turtle grass beds, the flight oftarpon and other fish species, and threatsto sponge and coral populations have af-flicted Florida Bay. Cattails crowd out na-tive species in parts of the Everglades. Ris-ing levels of nitrates have led to fears ofecological disruption in the SuwanneeRiver and its estuary.

Thanks to the commitment of govern-ment officials, activists, and thousands ofindividual Floridians, efforts to restoresome of these high-profile examples of nu-trient impairment are now underway.However, in many parts of Florida—andparticularly in the state’s rivers andstreams—the nutrient pollution problemreceives little attention, and the responseof government officials to it is inadequate.

The issue of nutrient pollution is a com-plex one—both in terms of the sources ofpollution and in the effects such pollutionhas on the delicate ecological balance ofFlorida waterways. Not only do the sourcesof nutrient pollution vary from watershedto watershed, but so does the degree ofpollution that can be sustained by a water-way without ecological harm.

This report offers a look at one compo-nent of the nutrient pollution problem inFlorida—phosphorus—and focuses specifi-cally on the impact of phosphorus pollu-tion in rivers and streams. In particular, thisreport examines how Florida’s policies foridentifying nutrient pollution and prevent-ing the flow of dangerous levels of phos-phorus into rivers and streams fail to ad-equately address the phosphorus pollutionproblem.

Solving the nutrient pollution problemwill not be easy, but successful models doexist. The first step in solving the problemis accurately identifying waterways that areexcessively polluted with nutrients.Florida’s current water quality policies arefailing to meet the challenge.


PHOSPHORUS AND THE NUTRIENTPOLLUTION PROBLEM IN FLORIDA

WHAT IS NUTRIENTPOLLUTION AND WHYIS IT A PROBLEM?

Nutrients are necessary for life itself.Nitrogen, for example, is used by plantsand animals to create protein. Phosphorusis key to the process of photosynthesis. Bothare vital to the process of cell division.

When nutrient levels in a waterway aretoo high, however, they can lead to exces-sive plant growth–growth that cannot bemaintained in an ecosystem. When theplants die and decompose, oxygen levelsin the water plummet, often leading to thedeath of fish. This process is calledeutrophication.

In aquatic ecosystems, the presence ofnitrogen and phosphorus—along withother factors—regulates the extent and typeof plant growth. In watersheds that areunaffected by human activities, nutrientflow to waterways is generally limited be-cause many of the nutrients are tied up inplant life along the waterway’s banks.However, when land use results in the pav-ing over of formerly vegetated areas or re-sults in increased erosion, or when nutri-ent levels are artificially increased, theamount of nutrients flowing into a water-way can increase dramatically.

Eutrophication

Eutrophication is the process by whichlakes evolve into dry land. Eutrophicationnaturally takes place over the course of cen-turies, but increased flows of nutrients towaterways can speed the process, leadingto dramatic changes in the ecological bal-ance of waterways in the course of monthsor years.

Characteristically, the pace of eutrophi-cation is limited by the relative scarcity of

one nutrient within an ecosystem—eithernitrogen or phosphorus. Nitrogen has longbeen thought to be the “limiting nutrient”in coastal ecosystems, while phosphorushas been thought to play a limiting role infreshwater ecosystems such as rivers andlakes. However, the situation is often morecomplex, with phosphorus playing a limit-ing role in some coastal ecosystems, andnitrogen and phosphorus playing a “co-limiting” role in many waterways.

When levels of the limiting nutrient ina given waterway become too high, thegrowth of algae in the waterway acceler-ates. The dramatic growth of algae in thewater column can cause the water to be-come turbid, limiting the penetration ofsunlight to underwater vegetation. As thealgae die, decomposing bacteria proliferate,consuming large amounts of oxygen andcausing fish kills. Dead algae then sink tothe bottom of the waterway, filling in thewaterway with sediment.

As the process proceeds, organisms thatcan withstand higher nutrient levels cancome to dominate the ecosystem. In theEverglades, for example, high phosphoruslevels have encouraged the growth of cat-tails, which crowd out other species andchange the complexion of the ecosystem.

The impacts of eutrophication are by nomeans limited to inland lakes. Eutrophica-tion can cause the death of aquatic plantbeds and coral reefs in ocean waters andcan create oxygen-depleted “dead zones”in coastal waters similar to the zone thatappears in the Gulf of Mexico each sum-mer.

Toxic Microorganisms

Nutrient pollution can have cata-strophic effects when it encourages thegrowth of organisms that are toxic to wild-


life or humans. Blue-green algae (alsoknown as cyanobacteria), produce toxinsthat—in the large amounts generated dur-ing an algae bloom—can kill domestic ani-mals and livestock, and cause diarrhea, skinirritation, respiratory problems, and liverdisease in humans.1 Nutrient pollution isalso suspected as a potential cause of othertypes of harmful algae blooms in coastalwaters—including those related to “redtides,” shellfish poisoning, and the spreadof the toxic dinoflagellate Pfiesteria.

THE ROLE OFPHOSPHORUS

Phosphorus is one of the two main nu-trients linked to eutrophication in Floridawaterways. As noted above, phosphorus iscommonly thought to be the limiting nu-trient in freshwater ecosystems, with nitro-gen the limiting nutrient in estuary andcoastal waters. But the relationship betweenthe two nutrients—particularly in Florida’sunique aquatic ecosystems—is often moreambiguous. For example, phosphorus iscommonly thought to be the limiting nu-trient in part, if not all, of Florida Bay.2

Meanwhile, nitrogen plays a co-limitingrole in some freshwater systems in Florida.

As a result, while the primary task forrestoring individual waterbodies to healthmay involve focusing on one particularnutrient, the interconnectedness ofFlorida’s river, stream, estuarine and coastalecosystems demands that state officials pri-oritize the reduction of both primary nu-trients—nitrogen and phosphorus—throughout the state.

This report focuses on phosphorus as anexample of the causes and impacts of thenutrient water pollution problem inFlorida. While control of nitrogen runoff isequally important, fewer controls typicallyexist on sources of phosphorus runoff to thestate’s rivers and streams.

Sources of Phosphorus

Phosphorus in Florida’s waters comesfrom a variety of sources, both natural andhuman-caused. Phosphorus enters water-ways in one of two ways. Soluble forms ofphosphorus (such as orthophosphate) canbe dissolved in water and carried directlyinto waterways, becoming immediatelyavailable for biological uptake. More typi-cally, phosphorus binds itself to soil or othersmall particles, which are then carried intowaterways as sediment.

The state of Florida has attempted toestimate the sources of phosphorus loadsin its recent assessments of the Lower St.Johns River and Ochlockonee River basins.These studies provide examples of the ma-jor sources of phosphorus in Florida inlandwaterways.

In the Lower St. Johns River, pointsources (such as wastewater treatmentplants) were estimated to be the largestsource of phosphorus, accounting for 26percent of phosphorus inflows to thebasin’s waters. Augmented nonpointsources, which include agricultural andurban runoff, accounted for 24 percent ofinflows, with upstream loading—the flowof phosphorus from further up the river—accounting for another 16 percent.3 (See Fig.1, next page.)

The Ochlockonee River basin study fo-cused only on external loadings related toland use, and did not include inflows ofphosphorus from sewage treatment plantsor other point sources. Cropland was thesingle biggest contributor of phosphorus tothe Ochlockonee River basin, responsiblefor 41 percent of land use-related phospho-rus loads to the basin. Natural nonpointsources, such as wetlands and forested ar-eas, also were significant contributors.4

While these two basins may not reflectconditions throughout Florida, they do sug-gest that agricultural and urban runoff—


along with discharge from sewage treat-ment plants—are major sources of phos-phorus pollution in Florida waterways.

HOW MUCH PHOSPHORUSIS TOO MUCH?

Determining whether phosphorus lev-els in a particular waterway represent a“problem” is a complex endeavor. Naturallevels of phosphorus in waterways varyfrom region to region within the state, andeven from waterway to waterway. Whetherphosphorus or nitrogen is the limiting nu-trient in a waterway also could have a rolein determining what levels of phosphorusmight be acceptable. Finally, one must con-sider not only the impact of phosphorus on,for example, a river or stream, but also theimpacts the nutrient might have on down-stream lakes, estuaries, or coastal waters.

Complicating matters further is the factthat nutrients can have long-term effectsthat persist well after the flow of nutrients

to a waterway is restricted. Like nitrogen,phosphorus can accumulate in sedimentsat the bottom of a waterway. These nutri-ents can, under certain circumstances, bereintroduced into the water column, creat-ing an “internal load” of nutrients to theecosystem.

Nutrient levels also do not necessarilyaffect plant growth in a linear fashion. Run-off of high levels of nitrogen or phospho-rus—such as might occur after a heavystorm—can have a long-term effect as al-gae engage in “luxury consumption” of thenutrients; in effect, storing excess nutrientswithin their cells for use in times of nutri-ent scarcity.

The presence of phosphorus in a water-way, therefore, does not necessarily indi-cate a water-quality problem. But the pres-ence of phosphorus in higher-than-ex-pected concentrations, particularly overprolonged periods of time, suggests that thethreat of ecological damage is possible andmust be investigated.

Upstream Load16%

Row Crop9%

Natural Nonpoint10%

Commercial4%

Dairy/Pasture5%

Residential5%

Augmented Nonpoint

24%

Atmospheric Deposition

1%

Point Source26%

Fig. 1. Sources of External Phosphorus Loading to Lower St. Johns River Basin


Determining the appropriate phospho-rus level for every waterway in Floridawould be a complex (and costly) endeavor.As a result, two options exist for determin-ing whether phosphorus levels in a water-way pose a threat:

1) the direct measurement of phos-phorus levels and their comparisonwith numeric criteria, or

2) the assessment of the symptoms ofphosphorus over-enrichment.

To date, the U.S. EPA has encouragedstates to take the former approach, adopt-ing recommended numeric criteria for nu-trients, while the state of Florida has takenthe latter.

EPA’s Recommendation:Numeric Nutrient Standards

The EPA has proposed numeric waterquality standards for nutrients. Acknowl-edging the differences in the environmen-tal impact of nutrients, those criteria are seton the level of “ecoregions,” of whichFlorida is divided into three—EcoregionsIX (encompassing the northern portion ofthe Panhandle), XII (including the rest ofthe state with the exception of SouthFlorida), and XIII (South Florida).

To develop its criteria, EPA used twomethods. One method involved the identi-fication of “reference” streams—those thathave been minimally impacted by human-caused pollution. Using data on nutrientlevels in these streams, the EPA judged thatnutrient levels at the 75th percentile (that

is, higher thanthree-quarters ofthe referencestreams assessed)were associatedwith minimal en-vironmental im-

pact. These nutrient levels became the pro-posed standards. In cases in which refer-ence streams were not or could not be iden-tified, the EPA used nutrient levels at the25th percentile of readings for all streams toset the standards. It is thought that the twomeasures—75th percentile of referencestreams and 25th percentile of all streams—are generally equal.5

The EPA analysis recommended the fol-lowing phosphorus criteria for rivers andstreams in each of Florida’s nutrientecoregions. (See Table 1.)

EPA has suggested that states furtherlocalize their nutrient criteria based on con-ditions at levels smaller than the ecoregionlevel. However, the EPA’s recommendedcriteria provide a basis with which to evalu-ate whether nutrient levels in a particularwaterway show the potential for environ-mental damage.

Florida’s Approach: NarrativeCriteria for Nutrients

Unlike the numeric criteria recom-mended by EPA, Florida currently relies ona vague “narrative” standard for nutrients.While efforts to develop numeric standardsare underway at the state level, Florida iscurrently limited to using proxy measuresto determine when nutrients are causingproblems in waterways.

The Florida Administrative Code statesthat:

The discharge of nutrients shall con-tinue to be limited as needed to pre-vent violations of other standards

Table 1. EPA Recommended Phosphorus Criteria for FloridaRivers and Streams (Based on 25th Percentile of All Streams)

Ecoregion IX Ecoregion XII Ecoregion XIII

Total Phosphorus(micrograms/liter)

36.6 40.0 15.0


contained in this chapter. Man-in-duced nutrient enrichment (totalnitrogen or total phosphorus) shallbe considered degradation in rela-tion to the provisions of Sections 62-302.300, 62-302.700, and 62-4.242,F.A.C.6

For Class I through III waterways, thecode further states that:

In no case shall nutrient concentra-tions of a body of water be alteredso as to cause an imbalance in natu-ral populations of aquatic flora orfauna.7

The vagueness of the nutrient standardin Florida has left the state with no clearway to measure whether Florida water-

ways do or do not meet the standard. In-stead, the state has been forced to rely onproxy measures of nutrient impairmentbased on the chemical and biological char-acteristics of waterways.

The state is moving forward with thedevelopment of numeric standards for nu-trients, which are scheduled to be proposedin late 2004 and adopted in late 2005.8 Inthe meantime, however, Florida continuesto assess whether waterways are “im-paired” for nutrients largely through theuse of proxy measures. As the next sectionwill show, the determination of “impair-ment” is critical to unlock the legal and fi-nancial resources needed to clean up wa-terways affected by nutrient pollution.


FLORIDA POLICY REDUCES PROTECTION OF RIVERSAND STREAMS FROM PHOSPHORUS POLLUTION

WHY “IMPAIRMENT”MATTERS

The determination of whether a river orstream is officially “impaired” for nutrientsmay seem like a bureaucratic decision. Andto a certain extent, it is. However, the re-sults of that decision can have serious rami-fications for a water body and its future.

Total Maximum Daily Loads

In order for state officials to focus oncleaning up a waterway, they must firstdecide that the waterway is, in fact, pol-luted. The federal Clean Water Act requiresthat states assess the quality of their water-ways and create a list of those waterwaysthat do not meet their “designated uses”—for example, fishing, swimming or use asdrinking water. For waterways that do notmeasure up, states must create waterway-specific cleanup plans, which include a de-termination of the levels of water pollutionto which a waterway may be exposed whilemaintaining its designated uses. These pol-lution limits are called Total MaximumDaily Loads, or TMDLs.

Once a TMDL is established for a wa-terway, the state must allocate portions ofthe load among the sources of pollutionalong the waterway. This includes bothpoint sources—which typically must ad-here to limits written into a discharge per-mit—and non-point sources of pollution.These allocations must incorporate a mar-gin of safety to ensure that waterways willattain their designated uses.

Florida’s TMDL Process

Florida’s TMDL process takes place infive phases:

• Phase 1: Florida DEP conducts aninitial water quality assessment ina basin and develops a “planninglist” of potentially impairedwaters.

• Phase 2: DEP conducts additionalmonitoring and develops a“verified list” of impaired waters.

• Phase 3: DEP develops TMDLs forimpaired waterways. Allocationsof permissable pollution loadsamong sources of pollution mustbe “reasonable and equitable”under Florida law, but the loadallocations are done on a water-way-by-waterway basis.

• Phase 4: DEP develops a BasinManagement Action Plan, whichincludes pollution load allocations,to implement the TMDLs. Theplan recommends actions forachieving water quality goals,assigns responsibility for imple-menting those actions, and estab-lishes a schedule for implementa-tion and the means for evaluatingprogress.

• Phase 5: DEP begins implementingthe plan, renewing or issuing newwastewater discharge permitsconsistent with the TMDLs,developing and implementing bestmanagement practices to controlrunoff pollution, and/or initiatingnew rulemakings, as required.9

Under the TMDL process in Florida,waterways are divided into five “basin


groups” depending on their location. Thefive groups then move through the processin a staggered fashion, with waterways inBasin Group 1 going through Phase 1 in thefirst year of the program, waterways inBasin Group 2 going through Phase 1 in thesecond year, and so on.

The process also calls for theprioritization of waterways for cleanupplans. High-priority waterways will haveTMDLs set for them in the first five-yearcycle, with medium-priority waters havingTMDLs set in the second cycle. As a result,all high-priority waterways in Florida thatneed TMDLs will begin to be affected bytheir provisions by 2008-09. The timeframefor actual cleanup can be much longer.

Table 2. Florida Basin Groups

Group 1 Group 2 Group 3 Group 4 Group 5

Everglades-West Coast Apalachicola-Chipola Caloosahatchee Fisheating Creek Everglades

Lake Okeechobee Charlotte Harbor Chockawatchee- Kissimmee River Florida KeysSt. Andrews

Ochlockonee-St. Marks Lower St. Johns Lk. Worth Lagoon- Nassau-St. Marys Indian RiverPalm Beach Coast Lagoon

Ocklawaha Middle St. Johns Sarasota-Peace- Pensacola PerdidoMyakka

Suwannee St. Lucie-Loxahatchee Upper St. Johns Southeast Coast Springs Coast

Tampa Bay Tampa Bay Tributaries Withlacoochee Upper East Coast

Table 3. Schedule of TMDL Development

Group 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10

Group 1 Phase 1 Phase 2 Phase 3 Phase 4 Phase 5 Phase 1 Phase 2 Phase 3 Phase 4 Phase 5

Group 2 Phase 1 Phase 2 Phase 3 Phase 4 Phase 5 Phase 1 Phase 2 Phase 3 Phase 4

Group 3 Phase 1 Phase 2 Phase 3 Phase 4 Phase 5 Phase 1 Phase 2 Phase 3

Group 4 Phase 1 Phase 2 Phase 3 Phase 4 Phase 5 Phase 1 Phase 2

Group 5 Phase 1 Phase 2 Phase 3 Phase 4 Phase 5 Phase 1

High-Priority Waters — TMDLs Set First Cycle Medium-Priority Waters — TMDLs Set Second Cycle

THE IMPAIRED WATERSRULE: DEFINING AWAY“IMPAIRMENT”

The process for determining whetherwaterways are impaired due to nutrientpollution is set forth in Florida’s ImpairedWaters Rule (IWR). The IWR requires theDEP to use the average annual concentra-tion of an indicator compound as the pri-mary means for determining impairment.For lakes, the indicator is the Trophic StateIndex—a combination of measurements ofnitrogen, phosphorus, and chlorophyll (anindicator of algal growth). For streams andestuaries, the indicator is chlorophyll-a.

In addition, the rule stipulates that nar-rative criteria of nutrient impairment “shall


also be considered,” but the rule gives onlyone specific criterion for biological imbal-ance in rivers and streams that triggers adesignation of impairment: the presence ofalgal mats “in sufficient quantities to posea nuisance or hinder reproduction of athreatened or endangered species.”10 Fi-nally, the rule allows rivers and streams tobe classified as impaired if annual meanchlorophyll-a levels exceed historical lev-els by 50 percent for two consecutive years.

A series of weaknesses in the ImpairedWaters Rule could lead—and likely alreadyhas led—to waterways with significantnutrient pollution problems being left offthe state’s impaired waters list, thus reliev-ing the state of the need to create a TMDLfor the waterway and endangering thechances for successful cleanup.

The Impaired Waters Rule suffers fromtwo sets of problems. First, the methodol-ogy for determining when a waterway is“impaired” (for any pollutant) is rife withloopholes. Second, the rule’s procedure forassessing nutrient impairment is inappro-priate for determining impairment in riv-ers and streams.

Loopholes in the ImpairedWaters Rule

The Impaired Waters Rule (IWR), in es-sence, takes an “innocent until provenguilty” approach to the determination ofimpairment. This approach may be theright one—if the standards of proof are suf-ficient to ensure that all impaired water-ways actually make the list. However, sev-eral provisions of the IWR either inordi-nately raise the bar of proof or exclude theconsideration of key pieces of evidence indetermining impairment.

There are at least five significant loop-holes that reduce the likelihood of a desig-nation of impairment for all waterbodiesin Florida. The IWR:

• Imposes labor-intensive testingrequirements—In order for awaterway to be placed on theverified list of impaired waters,investigators must collect aminimum of 20 samples for aparticular pollutant over 5 to 7.5years. A 2002 review of the Im-paired Waters Rule found thatonly one-third of all waterwayassessments conducted as of 2001contained 20 or more tests for aparticular pollutant. To achieve the20-test threshold for each of theseassessments, the state would haveneeded to conduct an additional192,000 tests.11 At a time of increas-ingly strained resources, DEP’sability to carry out such an ex-panded monitoring program isquestionable.

• May ignore seasonal impair-ments—No data can be consideredunder the IWR unless it includessamples collected in four out offour seasons. As a result, even iftests in one or more seasons showexcessive levels of pollution in awaterway, the waterway cannot beplaced on the verified list if datafrom other seasons do not exist. Inaddition, because some importantnutrient pollution parameters—such as low dissolved oxygen andhigh chlorophyll-a concentra-tions—are more prevalent in someseasons than others, this provisioncould lead to some serious pollu-tion problems being ignored.

• Sets standard of proof unreason-ably high—For a waterway to belisted as impaired, measurementsof pollution must exceed pollutionstandards in more than 10 percent


of samples with a 90 percent con-fidence level. Confidence levelsare statistical tools used to gaugehow confident a reader of the datacan be that a certain conditionexists. Because it is possible for asmall number of samples to not berepresentative of true conditions ina waterway, the establishment of ahigh confidence level means thatmore samples must be taken toprove that the 10 percent exceed-ance rate actually exists. The 90percent confidence level, therefore,dramatically increases the thresh-old for impairment. For example,with the confidence level provi-sion, a waterway that has beensampled 20 times must register5 exceedances to be classified asimpaired, rather than 2 exceed-ances (as the 10% criterion wouldhave indcated). In this case, theconfidence level provisionmore than doubles the amountof exceedances that need to bedocumented.

• Ignores pollution from spills andbypasses—The IWR excludes datathat result from violations of waterpollution laws, contaminant spills,or discharges due to upsets andbypasses from permitted facilities.The rule also excludes data col-lected in mixing zones down-stream from effluent dischargepoints. While sampling thesepollution “hot spots” might skewthe data toward a determination ofimpairment, ignoring them en-tirely could lead to an erroneousdetermination that a waterway ishealthy.

• Allows unenforceable cleanuppromises to substitute for en-

forceable plans—The IWR statesthat polluted waters will not belisted if, in the judgment of theDEP,

reasonable assurance is pro-vided that, as a result of ex-isting or proposed technol-ogy-based limitations andother pollution control pro-grams under local, state orfederal authority, they willattain water quality stan-dards in the future and rea-sonable progress toward at-tainment of water qualitystandards will be made bythe time the next 303(d) list[of impaired waters] isscheduled to be submittedto EPA.12 (303(d) lists aresubmitted every two years.)

In effect, this provision allows forwaterways to be excluded fromthe impaired waters list with noguarantee they will be cleaned upand no enforcement mechanism ifthey are not.

Measurement of NutrientsMay Mask Impairment

The IWR’s criteria for determining nu-trient impairment of rivers and streamsmay result in some rivers and streams be-ing inappropriately dropped from the listof impaired waters—and denied neededcleanup.

As noted above, the IWR uses annualmean chlorophyll-a levels as the primarymeans of determining nutrient impairmentin rivers, streams and estuaries. For lakes,the Trophic State Index—which includeschlorophyll, nitrogen and phosphorus asindicators—is used to determine impair-ment.


Relying on chlorophyll-a as the primarygauge of nutrient impairment for rivers andstreams is problematic for several reasons.

1) Chlorophyll-a measurements with-in the water column only indicatethe presence of phytoplankton—the diatoms, green algae and blue-green algae that float within thewater column. Such measurementsdo not provide a good gauge ofthe presence of periphyton (algaeattached to aquatic vegetation orunderwater structures).13

2) Chlorophyll-a is a responsevariable. By the time chlorophyll-alevels are measured that exceedstandards, unacceptable algalgrowth has already occurred. TheFlorida IWR’s provision thatnutrient impairment be judgedbased on an annual average ofchlorophyll-a readings furthercompounds the problem.

EPA guidance for the setting ofnutrient criteria for rivers andstreams suggests that statesmeasure four criteria—two causalvariables (total nitrogen and totalphosphorus) and two responsevariables (chlorophyll-a and ameasure of turbidity). EPA sug-gests that states evaluate water-ways against the criteria asfollows:

Failure to meet either of thecausal criteria should be suf-ficient to require remed-iation and typically the bio-logical response, as mea-sured by [chlorophyll-a] andturbidity, will follow thenutrient trend. Should thecausal criteria be met, but

some combination of re-sponse criteria are not met,then a decisionmaking pro-tocol should be in place toresolve the issue of whetherthe stream in question meetsthe proposed nutrient crite-ria.14

In other words, causal criteria—the direct measurement of nutrientlevels—should be the primarymeans of determining nutrientproblems in rivers and streams,not criteria based on responsevariables.

3) While chlorophyll-a can be a validmeasure of nutrient enrichment inlakes, its use in streams is moreproblematic. Relationshipsbetween chlorophyll and nutrientlevels in streams are weaker thanthey are in lakes, meaning thatchlorophyll is a less-reliableindicator of the presence ofexcessive nutrients.15 BecauseFlorida rivers frequently feed intoaquatic systems that are moresusceptible to excessive algaegrowth (lakes, estuaries), thepresence of excessive nutrientscan pose problems in receivingwaters, even if it does not sparkexcessive planktonic algae growthin the rivers and streams them-selves.

A second problem with the ImpairedWaters Rule’s treatment of nutrient pollu-tion in streams is that the threshold for chlo-rophyll-a appears to be set unreasonablyhigh.

In developing its recommended nu-meric criteria for nutrients (as described onp. 10), EPA also developed recommended


criteria for chlorophyll-a. For rivers andstreams in Ecoregion IX, the EPA recom-mended a threshold of 0.93 micrograms/liter (µg/l), based on the 25th percentile ofchlorophyll-a measurements in all streams.For Ecoregion XII, the recommended crite-rion was 0.4 µg/l.16 No criterion was rec-ommended for Ecoregion XIII.

In contrast, the chlorophyll-a thresholdfor rivers and streams set in the ImpairedWaters Rule is 20 µg/l—21 times higherthan the EPA-recommended criterion forEcoregion IX and 50 times higher than thecriterion for Ecoregion XII. Florida DEPstates that the 20 µg/l standard for chloro-phyll-a corresponds to approximately the80th percentile of readings in Floridastreams and serves as “a clear indicationthat an imbalanced situation is occurring.”17

DEP has defended this choice by notingthat, combined with other sections of therule, the chlorophyll-a level was “thoughtto be something that would hold the lineon future [nutrient] enrichment.”18

DEP’s logic that other sections of therule would allow for the appropriate de-termination of impairment for nutrient-fouled waterways is undermined by boththe text of the Impaired Waters Rule itselfand its implementation thus far. The IWRclearly states that annual mean chlorophyll-a values—not other evidence of impair-ment—“shall be the primary means for as-sessing whether a water should be assessedfurther for nutrient impairment” in the de-velopment of the planning list of impairedwaters.19 Further, only a handful of water-ways in Basin Groups 1 and 2 have thus farbeen determined to be impaired for nutri-ents based on measures other than meanaverage chlorophyll-a levels or increasesover historic chlorophyll-a levels.

The questionable accuracy of chloro-phyll-a as a measure of the threats nutri-ents pose to waterways—as well as the ap-

parently high threshold for chlorophyll-areadings in the IWR—suggest that theIWR’s approach to determining nutrientimpairment in rivers and streams may beseriously flawed. But what has been thereal-life impact on the nutrient impairmentdeterminations made to date by DEP?

LISTED NUTRIENT IMPAIR-MENTS DROP UNDERIMPAIRED WATERS RULE

Environmental advocates, many ofwhom opposed adoption of the IWR,claimed that the rule would allow dozens,perhaps hundreds, of Florida waterwayswith serious pollution problems to be“delisted” from the state’s impaired waterslist, eliminating the need for TMDL devel-opment and reducing chances for cleanup.

To date, DEP has finalized its list of im-paired waters for waterways in BasinGroup 1 and drafted verified lists of im-paired waters for waterways in BasinGroup 2. The listings shed light on the de-gree to which the IWR has caused water-ways to be delisted for nutrient impair-ment.

Florida’s list of Basin Group 1 impairedand delisted waters does not allow thestraightforward distinction of streams ver-sus estuaries and lakes. To determine theimpact of the chlorophyll-a standard, wa-terways can be broken down into two cat-egories: those for which chlorophyll-a is theprimary measure of nutrient impairment(streams and estuaries) and those for whichit is not (lakes).

Using IWR criteria to indicate impair-ment, 24 river and estuary segments weredelisted from the impaired waters list inBasin Group 1, compared to 49 segmentsthat remained listed from, or were addedto, the 1998 impaired waters list. In com-


parison, only 12 lake segments weredelisted, compared to 49 segments that re-mained on the list. Of the 12 delisted lakesegments, 9 were segments of LakeOkeechobee that were delisted due to thecompletion of a TMDL for phosphorus inthat waterway, leaving only three lake seg-ments that were truly “delisted.”20 The listof verified waterways also includes fourstream segments and one lake segment that

trients between 1998 and 2002/2003 couldtheoretically be caused by one of three fac-tors.

1) Nutrient pollution of these water-ways could have dropped signifi-cantly over the past four years.This is unlikely. Florida’s federallymandated assessment of state-wide water quality for 2002 foundthat, of those streams for whichsufficient data existed, only 14percent demonstrated improvedwater quality over a 10-yearperiod, with 82 percent demon-strating stable water quality and 4percent degraded water quality.23

It is unlikely, therefore, thatsignificant reductions in pollutionare responsible for the largenumber of rivers and streams thathave been delisted for nutrientsunder the IWR.

2) The method of determiningimpairment for streams in 1998could have been overbroad,including many waterwayswithout significant nutrientproblems. The criteria for deter-mining nutrient impairment instreams for the 1998 list weremethodologically questionable.Determinations of impairment forstreams were based in part on theWater Quality Index (WQI)—anaggregation of several measuresof water quality ranked based ontheir distribution within typicalwater quality values in Florida.One problem with the WQI is thatit does not specifically quantifynutrient impairment (althoughconcentrations of nitrogen andphosphorus are part of the mea-sure). A second problem is that it

EPA ordered be placed on the verified im-paired waters list, overruling DEP’s initialdecision to exclude the waterways.

The draft verified list for Basin Group 2waterways provides a clearer distinctionbetween streams and estuaries, which con-firms the impact of the chlorophyll-a stan-dard on the listing status of streams. On thedraft list, 41 stream segments remain listedas impaired for nutrients, while 36 streamsegments have been delisted. In compari-son, 67 lake segments remain impaired,with only 2 delisted under the IWR. Forestuaries—which also rely on chlorophyll-

Table 4. Basin Group 1 Waterways21

Ratio of DelistedVerified Delisted to Verified

Streams/Estuaries 49 24 0.49

Lakes 49 12 0.24

Table 5. Basin Group 2 Waterways22

Ratio of DelistedVerified Delisted to Verified

Streams 41 36 0.88

Estuaries 20 7 0.35

Lakes 67 2 0.03

a as a measurement of nutrient impair-ment—20 segments remained listed as im-paired, with 7 segments delisted.

The dramatic drop in the number ofstream segments listed as impaired for nu-


is a relative measure of waterquality in comparison with otherwater bodies that may not sharethe same natural characteristics.

However, for two reasons, the useof the WQI is unlikely to haveresulted in the inclusion of anoverabundance of stream seg-ments that were not actuallyimpaired. First, the relative natureof the WQI suggests that it wasjust as likely to understate thenumber of impaired waterways asto overstate them. Second, anumber of waterways that havebeen delisted under the IWRcontinue to show signs of nutrientoverabundance, suggesting thatthe former methodology was notincorrect in identifying thesestreams as impaired.

3) Finally, the current method ofdetermining nutrient impairmentin streams could be insufficient todetect true nutrient impairment ofwaterways. Given the concernsabove about the accuracy ofchlorophyll-a as a measuring toolin streams, and the EPA’s guid-ance that several causative andresult-oriented factors be consid-ered in assessing impairment, thisappears to be the most likelyoption.

PHOSPHORUS PROBLEMSIN FLORIDA RIVERS ANDSTREAMS: FOUR EXAMPLES

To determine whether a measurementerror, or a real change in conditions is thecause of the nutrient delistings under the

IWR, it is necessary to look at conditions inthe waterways themselves. A detailedanalysis of nutrient levels in Florida riversand streams is beyond the scope of this re-port. But a look at four major Florida riverssuggests that nutrient problems—particu-larly problems caused by phosphorus—inthose waterways are longstanding, andmay not be properly addressed by the IWR.

Suwannee River

The Suwannee River is one of Florida’sgreat treasures. Fed by nearly 200 freshwa-ter springs, the Suwannee has been virtu-ally unaltered in its physical form by hu-mans and hosts a wide variety of wildlife,including species such as the endangeredWest Indian manatee.24

Over the past several decades, however,levels of nitrate in the river have been ris-ing—due largely to runoff and groundwa-ter infiltration of nutrients from agriculturaloperations. Nutrient over-enrichment hasled to the development of algal mats inportions of the river. The National Oceanicand Atmospheric Administration (NOAA)assesses eutrophic conditions in theSuwannee River estuary as “moderate,”with evidence of excessive chlorophyll,macroalgae, low dissolved oxygen, andnuisance and toxic algae blooms. NOAAanticipates that symptoms of eutrophica-tion in the estuary will worsen betweennow and 2020.25

Nitrogen is thought to be the limitingnutrient in the Suwannee River and its es-tuary. However, phosphorus levels in theriver—while thought to be naturally high—have historically exceeded EPA’s recom-mended nutrient criteria.26 (See box on nextpage.)


Table 6 (next page) shows the frequencyof exceedances of EPA’s recommended nu-meric criterion for phosphorus levels inFlorida portions of the Suwannee Riverbetween 1990 and 1998. An “exceedance”in this case is defined as any sample read-ing that exceeds the EPA criterion. Whileboth the rate of exceedance and averagetotal phosphorus levels have dropped since

the early 1990s, the average phosphoruslevel in the river in 1998 remained nearlyfour times higher than the EPA’s recom-mended criterion.

Again, it is possible that the high totalphosphorus levels in the Suwannee Rivermay be due in part to natural conditions.But the high rate of exceedance of phospho-rus criteria in the river suggests that the

Unenforceable Promises for Nitrogen Cleanup in the Suwannee River

Florida’s IWR allows waterway segments to be excluded from the impaired waters list if

“reasonable assurance is provided that, as a result of existing or proposed technology-based

limitations and other pollution control programs under local, state, or federal authority, they

will attain water quality standards in the future and reasonable progress towards attainment

of water quality standards will be made by the time the next 303(d) list is scheduled to be

submitted to EPA.”27

Translated into layperson’s terms, this means that the state can define a waterway as not

impaired—regardless of how polluted it may be—if it is reasonably sure that the waterway

will get cleaned up at some point in the future.

Using this provision, DEP had proposed excluding the Suwannee River from listing as an

impaired waterway for nutrients. As a result, no TMDL for nutrients was to have been re-

quired for the waterway.

The Suwannee River Partnership is a group consisting of 24 members including federal,

state and local government agencies and private industry, whose stated goal is to “encour-

age those who would be most impacted by regulations to change how they operate in hopes

that regulations might be avoided.”28 The Partnership created a management plan for limit-

ing nitrogen inflows to the Suwannee River that, in DEP’s view, provided reasonable assur-

ance that the waterway would be cleaned up. The plan relied on agricultural Best Manage-

ment Practices (BMPs) as the primary means to reduce flows of nitrogen to ground and

surface waters in the Suwannee River basin, with the goal of getting all animal producers

and 80 percent of row crop producers in the basin to implement BMPs by 2008.29 The part-

nership anticipated that these actions would result in nitrogen levels in the Suwannee River

returning to 1979 levels by about 2028.30

The problem with the reasonable assurance approach is that there is no enforceable

guarantee that the nutrient problem will be solved, merely a voluntary commitment. More-

over, because the partners project that it will take until 2013 for significant reductions in

nitrogen loading to occur, it will be difficult to determine whether the program is making an

impact.

Voluntary projects such as the Suwannee River Partnership can be useful and beneficial as

supplements to, but not as substitutes for required anti-pollution programs, especially not when

their existence allows DEP to classify a waterway with nutrient problems as “not impaired.”

In recognition of these problems, the EPA has reversed the proposed de-listing of the

Suwannee River for nutrients, adding the waterway back to the state’s impaired waters list.

However, acknowledging support for the partnership approach—despite its unenforceable

cleanup promises—EPA has assigned a low priority to the completion of a TMDL for nutri-

ents in the waterway.31


Table 6. Suwannee River Exceedances of Recommended EPA Phosphorus Criterion

Recommended MaximumExceedance Criterion Measured Average

Year Samples Exceedances Percentage (mg/l) (mg/l) (mg/l)

1998 174 155 89% 0.04 0.81 0.15

1997 139 87 63% 0.04 1.31 0.10

1996 135 129 96% 0.04 1.17 0.21

1995 144 139 97% 0.04 1.34 0.15

1994 136 132 97% 0.04 1.84 0.22

1993 155 152 98% 0.04 1.32 0.23

1992 198 194 98% 0.04 1.58 0.22

1991 206 206 100% 0.04 3.40 0.28

1990 185 185 100% 0.04 8.90 0.49

Table 7. Fenholloway River Exceedances of Recommended EPA Phosphorus Criterion



1999 4 4 100% 0.04 4.10 1.45

1998 21 17 81% 0.04 3.00 0.65

1997 14 6 43% 0.04 2.38 0.47

1996 15 12 80% 0.04 2.54 0.86

1995 18 17 94% 0.04 2.47 1.03

1994 18 14 78% 0.04 2.59 0.85

1993 18 17 94% 0.04 2.34 0.93

1992 11 10 91% 0.04 2.32 0.87

1991 8 8 100% 0.04 2.36 0.75

1990 9 9 100% 0.04 4.80 1.99

phosphorus pollution problem cannot beignored—even if (and perhaps especiallyif) nitrogen inflows to the waterway arereduced.

Fenholloway River

As part of the Suwannee River basin, theFenholloway’s nutrient problems are some-what related to those of the Suwannee Riveritself. But the Fenholloway is also a caseunto itself due to the waterway’s historyas, for all intents and purposes, an indus-trial sewer.

In 1947 the Fenholloway was legallyclassified as an industrial use river as ameans to attract industry to the region.32 Infact, until its designation was changed in1998, the Fenholloway was the only riverin Florida to have a Class V designation,

which requires water quality to “be main-tained only at a level sufficient to supportnavigation, utility, and industrial uses.”33

Even in its historically polluted state, how-ever, the Fenholloway does have a signifi-cant role as a feeder of the Gulf of Mexico.

Under the IWR, no part of theFenholloway River is currently listed asimpaired for nutrients. The only section ofthe river to previously appear on the im-paired waters list for nutrients—the sectionof the Fenholloway River above the pulpmill—has been delisted.

However, phosphorus levels in theFenholloway River have historically beenvery high, with the waterway exceedingEPA-proposed numeric standards for phos-phorus in more than 80 percent of samplesbetween 1990 and 1999. (See Table 7.)


Table 8. Ocklockonee River Exceedances of Recommended EPA Phosphorus Criterion



1998 20 19 95% 0.04 0.19 0.1

1997 5 5 100% 0.04 0.11 0.08

1996 15 15 100% 0.04 0.23 0.14

1995 16 16 100% 0.04 0.17 0.12

1994 13 12 92% 0.04 0.19 0.11

1993 15 12 80% 0.04 0.32 0.11

1992 13 12 92% 0.04 0.8 0.22

1991 3 2 67% 0.04 0.11 0.06

1990 7 5 71% 0.04 0.14 0.08

Such high phosphorus levels also havethe potential to affect conditions in the Gulfof Mexico. In 2001, the Fenholloway wasresponsible for the loading of 135 tons ofphosphorus to the Gulf.34 Again, while ni-trogen may be the limiting nutrient in Gulfcoastal waters, phosphorus pollution can-not be safely ignored.

Ochlockonee River

The Ochlockonee River flows fromGeorgia through northwestern Florida, be-fore it empties into Ochlockonee Bay.Eutrophication has been evident at LakeTalquin, an artificial reservoir created by thedamming of the Ochlockonee.

Like the Fenholloway and theSuwannee Rivers, the Ochlockonee has his-torically registered phosphorus levels far inexceedance of the EPA’s recommendednumeric criterion. Over the 1990-1998 timeframe, measurements of phosphorus lev-els in the river exceeded the criterion morethan 90 percent of the time. (See Table 8.)

Despite these high levels of phospho-rus, no part of the Ochlockonee River iscurrently listed as impaired by nutrients.The two segments that had been listed asimpaired for nutrients on the 1998 impairedwaters list have been since been removed.

Ocklawaha and St. Johns Rivers

The Ocklawaha and St. Johns river ba-sins occupy most of the northeastern quar-ter of Florida. The Ocklawaha is a majortributary of the St. Johns, and is fed by riv-ers, streams, and a series of lakes in Cen-tral Florida. The St. Johns is an unusualhydrologic system—a north-flowing riverwith a gentle gradient that opens into a se-ries of lakes as it makes its way from In-dian River County to the Atlantic Ocean inDuval County. Tides at the mouth of the St.Johns can affect the river’s flow as far as160 miles upstream, while the river’s over-all “lazy” flow can make it difficult for thesystem to flush itself of pollutants.

The two basins demonstrate the dam-age that nutrient overenrichment—particu-larly phosphorus overenrichment—canhave on waterways, as well as the poten-tial for concerted government action to ad-dress the problem. Among the impacts ofhigh nutrient levels in the St. Johns Riverhave been algae blooms, fish kills, loss ofshoreline vegetation, low levels of dis-solved oxygen and the presence of toxicmicroorganisms. All of these problems canbe linked to eutrophication.35

Phosphorus levels in both theOcklawaha and St. Johns rivers have regu-


larly exceeded EPA’s recommended nu-meric criterion. In the Ocklawaha River,approximately 88 percent of all samplestaken between 1994 and 1999 exceeded theEPA’s recommended numeric criterion forphosphorus. (See Table 9.) Meanwhile,about 82 percent of all tests in stream seg-ments of the St. Johns River exceeded theEPA phosphorus criterion. (See Table 10.)

Unlike many other rivers and streamswith high levels of phosphorus, much ofthe St. Johns and Ocklawaha rivers remainclassified as “impaired” for nutrients un-der the Impaired Waters Rule. While assess-ments for the Upper St. Johns River basinhave not yet been completed, numeroussegments of the lower and middle St. JohnsRiver have demonstrated sufficient chloro-

Table 9. Ocklawaha River Exceedances of Recommended EPA Phosphorus Criterion



1999 3 3 100% 0.04 0.11 0.09

1998 44 38 86% 0.04 2.02 0.11

1997 20 18 90% 0.04 0.18 0.07

1996 20 19 95% 0.04 0.14 0.07

1995 16 15 94% 0.04 0.10 0.06

1994 15 11 73% 0.04 0.09 0.06

Table 10. St. Johns River Exceedances of Recommended EPA Phosphorus Criterion



2001 30 28 93% 0.04 0.19 0.10

2000 60 60 100% 0.04 0.29 0.12

1999 51 51 100% 0.04 0.32 0.11

1998 56 47 84% 0.04 0.18 0.07

1997 105 97 92% 0.04 0.26 0.09

1996 252 205 81% 0.04 0.38 0.08

1995 89 69 78% 0.04 0.27 0.07

1994 4 4 100% 0.04 0.18 0.10

1993 163 106 65% 0.04 0.22 0.06

1992 194 185 95% 0.04 0.28 0.08

1991 179 134 75% 0.04 0.22 0.07

1990 36 11 31% 0.04 0.11 0.04

phyll-a levels to be classified as impaired.It should be noted, however, that many seg-ments of the lower St. Johns are classifiedas estuaries or lakes, and are therefore sub-ject to different standards.

The Ocklawaha and St. Johns riversare prime examples of the importance ofappropriate determinations of nutrientimpairment. TMDLs for nutrients havebeen proposed for the lower St. Johns Riverand water bodies in the Ocklawaha Riverbasin.

Summary

The TMDL process offers an effectiveway of dealing with the phosphorus pollu-tion problem in Florida’s rivers and


streams. But the weaknesses and loopholesin Florida’s Impaired Waters Rule willlikely prevent many rivers and streamswith legitimate nutrient enrichment prob-lems from being listed as impaired water-ways and cleaned up.

The weakness of the IWR is apparent inthe delisting of several waterway segmentswith levels of phosphorus well over the

EPA’s recommended criterion—and in thedisproportionate delisting of rivers andstreams versus other types of waterways.While some waterways may experiencenaturally higher levels of nutrients such asphosphorus, the data presented above sug-gest that the state of Florida is failing toproperly diagnose or treat the phosphoruspollution problem.


F lorida has two avenues through whichto reduce nutrient pollution—and par-ticularly phosphorus pollution—of

state waterways.

The first avenue is through the processof creating and implementing TMDLs. Thiswatershed-specific approach requires stateofficials to accurately assess the conditionof nutrient-impaired waterways, determinethe sources of nutrient pollution, andimplement cleanup plans that will curboverall nutrient inflows to the waterways.

A second avenue is through the settingof statewide policy to reduce nutrient dis-charges at the source, particularly from ag-ricultural and urban runoff. Thelongstanding and persistent problemsposed by nutrient pollution throughoutFlorida suggest that both avenues must bepursued.

WATERSHED-BASEDSOLUTIONS

The development of effective, water-shed-based strategies to curtail nutrientrunoff into specific waterbodies dependsupon a proper understanding of the nutri-ent problem. To this end, revising the Im-paired Waters Rule’s process for identify-ing nutrient-impaired rivers and streams iscritical.

Florida should make three changes toensure that the state accurately identifieswaterways with nutrient problems:

1) The IWR should be revised to nolonger rely on mean annual chloro-phyll-a levels as the primary meansof determining nutrient impairmentin streams. At minimum, the ruleshould be revised to allow seasonalspikes of chlorophyll-a to trigger alisting of impairment, instead of

relying only on annual averaging,which can mask temporary, but stilldangerous, algal blooms.

Ideally, the IWR should also allowfor consideration of causal vari-ables—such as measured nitrogenand phosphorus levels—as anindicator of potential impairment.The EPA’s recommended numericcriteria for nutrients could be usedas the benchmark for potentialimpairment while Florida developsits own, state-specific numericstandards for nutrients.

Finally, the IWR should specificallyrequire that waterways demonstrat-ing observed imbalances of floraand fauna be listed as impaired.Currently, the IWR states thatimbalances such as

algal blooms, excessive mac-rophyte growth, decrease inthe distribution . . . of sea-grasses or other submergedaquatic vegetation, changesin algal species richness, andexcessive diel oxygenswings shall also be consid-ered.36

However, no mechanism is pro-vided for requiring waterwaysexhibiting such traits to be listed asimpaired. The presence of algalmats “in sufficient quantities to posea nuisance or hinder reproductionof a threatened or endangeredspecies” is the only observedimbalance that triggers automaticlisting on the IWR.

2) Provisions in the IWR that setunduly high thresholds for thenumber of exceedances needed to

HOW FLORIDA CAN CONTROLPHOSPHORUS POLLUTION


determine impairment, excludeevidence of impairment, imposeunreasonable seasonal averagingrequirements, or allow for “reason-able assurance” exceptions to TMDLdevelopment should be removedfrom the rule.

3) Florida should move forwardexpeditiously with the adoption ofnumeric water-quality standards fornutrients, to be implemented nolater than 2005, and revise the IWRto reflect these standards immedi-ately upon their adoption. The stateshould take local or regional envi-ronmental conditions into accountwhen setting the standards to theextent possible—including develop-ing methods to accurately measurethe presence of natural backgroundlevels of nutrients. But the stan-dards should be based primarily onreducing nutrient levels to levelsreflecting natural conditions.

Several Florida waterways that havebeen identified as suffering fromnutrient pollution have begun to becleaned up. (See “Lake Apopka: ACase Study,” next page.) And withFlorida finally moving ahead withthe development of TMDLs forimpaired waterways, the cleanup ofadditional waterways should beginsoon. But without proper proce-dures to identify nutrient-impairedwaterways, many rivers andstreams could remain polluted forthe long term.

STATEWIDE SOLUTIONS

As noted above, runoff (primarily fromagriculture but also from urban areas) is amajor source of nutrient contamination ofwaterways, along with point source dis-

charges from sewage treatment plants.Since 1994, Florida has encouraged, by stat-ute, the development and implementationof Best Management Practices (BMPs) tolimit the discharge of nitrogen by agricul-ture. The 1994 law created funding for thedevelopment of BMPs and to support cost-sharing plans with farmers. In addition, thelaw gave two regulatory incentives to farm-ers that adopted BMPs: an exemption fromthe cost of cleaning up nitrate-pollutedgroundwater and a “presumption of com-pliance” with water quality standards.39

The 1994 law did not specifically ac-knowledge the need for BMPs for phospho-rus. But BMPs for phosphorus have beenpart of the restoration plans for waterbodiessuch as Lake Okeechobee.40

While BMPs are generally undertakenvoluntarily, they have been mandated incertain instances. Landowners in the Ever-glades Agricultural Area who dischargewater to the “works” of the water manage-ment district are required to obtain a per-mit and implement BMPs. The program,which was required by the Everglades Pro-tection Act of 1991, has succeeded in sig-nificantly reducing phosphorus loads to theEverglades.41

Florida also regulates stormwater dis-charges from new developments (exceptsingle-family dwellings) through a permit-ting program implemented by water man-agement districts. Projects must implementBMPs to reduce stormwater pollution ofsuspended solids by 80 percent or by 95percent for outstanding Florida waters,waters that do not meet standards, or othersensitive waters.42

As Florida grapples with the problemof nutrient pollution, a possible model foraction can be found in Wisconsin, where thestate adopted a sweeping package of run-off management rules in 2002. Those rules:

(continued on page 28)


Table 11. Lake Apopka Exceedances of Recommended EPA Phosphorus Criterion



1998 71 59 83% 0.01 0.11 0.03

1997 108 104 96% 0.01 0.44 0.08

1996 124 124 100% 0.01 0.22 0.07

1995 89 88 99% 0.01 0.64 0.13

1994 70 70 100% 0.01 0.3 0.16

1993 34 34 100% 0.01 0.36 0.25

1992 67 67 100% 0.01 0.28 0.18

1991 160 159 99% 0.01 2.37 0.23

1990 80 79 99% 0.01 4.5 0.24

Reclaiming Lake Apopka: A Case Study

Lake Apopka in central Florida was once one of the state’s great bass fisheries, attract-

ing anglers from across the country. But, beginning in the 1940s, a series of changes around

the lake sent the waterbody into a spiral of decline. In 1947, a hurricane destroyed much of

the lake’s aquatic vegetation. At roughly the same time, agricultural development around the

lake boomed; a total of 20,000 acres of wetlands around the lake were lost to agriculture in

the 1940s. Those agricultural areas produced discharges of phosphorus that made their

way into the lake, along with phosphorus discharges from wastewater and citrus processing

plants.37

Soon, it became apparent that Lake Apopka was in trouble. Phosphorus inflows to the

lake caused algal blooms and turbid waters. Sport fish came to be replaced by shad by the

early 1960s. By the late 1960s, the lake bottom was covered with a layer of muck more than

four feet deep.38 Pollution from the lake began to move downstream throughout the Harris

Chain of Lakes, which acts as the headwaters of the Ocklawaha River.

Beginning in 1985, the St. Johns River Water Management District, working with other

government agencies, attempted to reverse Lake Apopka’s slide, by taking more than 18,000

acres around the lake out of agricultural production, replacing native vegetation, harvesting

gizzard shad, and constructing a marsh “flow-way” to filter pollutants out of lake water.

Recent measurements of phosphorus concentrations in the lake suggest that the ap-

proach is beginning to make an impact. As of 1998, phosphorus levels in the lake still regu-

larly exceeded EPA’s recommended nutrient criteria for phosphorus for lakes in Ecoregion

XII, but average phosphorus levels have dropped consistently since 1990. (See Table 11.)

The example of Lake Apopka shows that efforts to reduce phosphorus loading to water-

ways can succeed. But the intensity of effort that has been expended in the restoration of

Lake Apopka—along with other areas such as Lake Okeechobee and the Everglades—is

unlikely to be carried out statewide. To reduce nutrient-related water-quality problems across

Florida, other steps—including reducing the flow of nutrients into waterways through runoff

standards and removal of phosphorus already in aquatic systems through vegetative treat-

ment—will have to be taken to reduce levels of phosphorus in the state’s waterways.


• Impose new runoff standards foragriculture, including require-ments for the development ofnutrient management plans forfertilizer use, improved manuremanagement standards, andcropland erosion standards. Thestandards are mandatory for largeanimal feedlots that are required toobtain a state discharge permit,and for any landowner who hasbeen offered state funding equiva-lent to 70 percent of the cost ofimplementing the standards.

• Impose standards to reducesediment erosion from construc-tion sites and runoff from newtransportation and developmentprojects. The standards are manda-tory for large construction sitesand transportation projects. Manymunicipalities will be required todevelop rules that achieve certaintargeted reductions in runoff.43

While the Wisconsin standards cur-rently address only nitrogen, phosphoruswill be included once the Natural ResourcesConservation Service develops nutrientmanagement standards for phosphorus inor around 2005. Florida should consider theadoption of similar standards for both ni-trogen and phosphorus.

THE NEED TO ACT

Clean water is the economic and emo-tional heart and soul of Florida. Nutrientpollution has already shown the potential

to wreck inland fisheries, degrade the qual-ity of rivers, streams and lakes, and alterthe delicate ecological balance in one-of-a-kind ecosystems such as the Everglades andFlorida Bay. The stakes—for the health ofthe state’s tourism industry and for all Flo-ridians—are very high.

Yet, despite a growing awareness of thenutrient problem, and successful restora-tion efforts in some waterways, Florida’scurrent water policies represent an inad-equate response to the problem—particu-larly as it relates to rivers and streams. Theongoing process to develop numeric stan-dards for nutrient pollution providesFlorida with a golden opportunity to de-velop a scientifically sound methodologyfor ensuring that every waterway in thestate that is negatively impacted by nutri-ents is cleaned up.

But Florida cannot afford to wait fornew numeric standards for nutrients to takeaction on the nutrient problem. It is timefor the state to repair the obvious flaws ofthe Impaired Waters Rule, and to begin tobuild consensus behind an expanded nu-trient management strategy that will resultin significant reductions in nutrient pollu-tion of the state’s waterways within thenear term.

The examples of the Everglades, LakeApopka, Lake Okeechobee and countlessother waterways in Florida should remindus that the cost of repairing nutrient-dam-aged waterways and ecosystems is usuallyfar greater than the cost of preventing pol-lution in the first place. Florida must makethe commitment to address the nutrientpollution problem now, or it will undoubt-edly pay the price later.


METHODOLOGY

Data on phosphorus levels in Floridawaterways were derived from aquery of the EPA’s STORET data-

base performed in March 2003. For theyears 1990 through 1998, phosphorus lev-els are based on parameter number 00665.For 1999 through 2003, phosphorus levelsreported under parameters 00662 and 00665were used.

The number of “exceedances” of phos-phorus criteria was based on the highestrecommended phosphorus criterion amongFlorida’s three ecoregions as proposed byEPA. This level corresponds with 0.04 mg/l for rivers and streams.

Data from legacy STORET records withremark codes of A, C, D, L, or S, or no re-mark code were used. Data from STORET

records with remark codes I, K and M wereretained but the values used were half thevalues reported in STORET. Data with re-mark codes of B, E, F, G, H, J, N, O, P, Q, R,V, Y, and Z were deleted from the database.Entries with a remark code of T, U, or Wwere kept, but their values were replacedwith zero in the database. These proceduresare per U.S. EPA, Ambient Water CriteriaRecommendations, Information Supportingthe Development of State and Tribal NutrientCriteria, Lakes and Reservoirs in NutrientEcoregion XIII, December 2000, AppendixA.

Records indicating identical readings onthe same date from the same sampling sta-tion were determined to be duplicates andwere excluded from the results.


16. U.S. Environmental Protection Agency,Ambient Water Quality Criteria Recommenda-tions, Information Supporting the Development ofState and Tribal Nutrient Criteria, Rivers andStreams in Nutrient Ecoregion IX, December2000; U.S. Environmental Protection Agency,Ambient Water Quality Criteria Recommenda-tions, Information Supporting the Development ofState and Tribal Nutrient Criteria, Rivers andStreams in Nutrient Ecoregion XII, December2000. Note: No criterion was recommendedfor chlorophyll-a in Nutrient Ecoregion XIII(South Florida).

17. State of Florida, Division of Administra-tive Hearings, Jacqueline M. Lane, et. al. v.Department of Environmental Protection: FinalOrder, 13 May 2002, 169.

18. Ibid.

19. 62-303.351 F.A.C.

20. Based on Florida Department of Environ-mental Protection, Documentation for the 2002Update to the State of Florida’s 303(d) List, 1October 2002, Attachment A; David B. Struhs,Florida Department of EnvironmentalProtection, Order Amending 2002 Verified List ofImpaired Waters, Group 1 Basins, 11 March 2003;U.S. Environmental Protection Agency, Region4, Decision Document Regarding Department ofEnvironmental Protection’s Section 303(d) ListAmendment Submitted on October 1, 2002 andSubsequently Amended on May 12, 2003, 11 June2003.

21. Ibid.

22. Based on draft verified lists of impairedwaters and lists of delisted waters posted atFlorida Department of EnvironmentalProtection, Draft Verified Lists of ImpairedWaters for the Group 2 Basins, downloadedfrom http://www.dep.state.fl.us/water/tmdl/verified03.htm, 1 December 2003.

23. Florida Department of EnvironmentalProtection, Florida’s Water Quality Assessment,2002 305(b) Report, [undated], 5.

24. Peter Lane Taylor, Florida Department ofEnvironmental Protection, Suwannee RiverEstuary: The End of Water’s Journey, down-loaded from http://www.floridasprings.org/expedition/dispatch6/page.php?page=01, 23July 2003.

25. U.S. Department of Commerce, NationalOceanic and Atmospheric Administration,National Estuarine Eutrophication Assessment:

1. Lora E. Fleming, Wendy Stephan, Report tothe Florida Harmful Algae Bloom Taskforce: BlueGreen Algae, Their Toxins and Public HealthIssues, October 2001.

2. A. Gasc and A. Szmant, Distribution ofFlorida Bay Sediment Nutrients, 16 July 1999,downloaded from http://www.aoml.noaa.gov/ocd/sferpm/szmant/szmant_gasc.html.

3. Florida Department of EnvironmentalProtection, Division of Water ResourceManagement, Group 2 Basin Status Report:Lower St. Johns, June 2002, Appendix K.

4. Florida Department of EnvironmentalProtection, Division of Water ResourceManagement, Basin Status Report: Ochlockoneeand St. Marks, November 2001, Appendix D.

5. U.S. Environmental Protection Agency,Ambient Water Quality Criteria Recommenda-tions: Information Supporting the Development ofState and Tribal Nutrient Criteria: Rivers andStreams in Nutrient Ecoregion XII, December2000, 10.

6. 62-302.530 F.A.C.

7. Ibid.

8. Florida Department of EnvironmentalProtection, State of Florida Numeric NutrientCriteria Development Plan (draft), 14 May 2002.

9. Florida Department of EnvironmentalProtection, TMDL Development Cycle, down-loaded from http://www.dep.state.fl.us/water/tmdl/cycle.htm, 2 October 2003.

10. 62-303.350 F.A.C. and 62-303.351 F.A.C.

11. Brad Heavner, Marisa Visel, Tony Dutzik,Florida PIRG Education Fund, Cleaning UpFlorida’s Water: The Case for a Stronger ImpairedWaters Rule, February 2002.

12. 62-303.100 (5) F.A.C.

13. Florida LAKEWATCH, A Beginner’s Guideto Water Management — Nutrients, August2000.

14. U.S. Environmental Protection Agency,Nutrient Criteria Technical Guidance Memo:Rivers and Streams, July 2000, 104.

15. Walter K. Dodds, Val H. Smith, KirkLohman, “Nitrogen and Phosphorus Relation-ships to Benthic Algal Biomass in TemperateStreams,” Canadian Journal of Fisheries andAquatic Sciences, 2002, 865-874.

NOTES


Effects of Nutrient Enrichment in the Nation’sEstuaries, September 1999.

26. “...thought to be naturally high ...” basedon Lisa K. Ham, Hilda H. Hatzell, U.S.Geological Survey, Analysis of Nutrients in theSurface Waters of the Georgia-Florida CoastalPlain Study Unit 1970-1991, 1996, 35.

27. 62-303.100 (5) F.A.C.

28. Suwannee River Partnership, TMDLs andthe Suwannee River Basin, downloaded fromhttp://www.srwmd.state.fl.us/resources/tmdls+0403.pdf, 23 June 2003.

29. Suwannee River Partnership, ReasonableAssurance Documentation for the SuwanneeRiver, Santa Fe River, and the Suwannee RiverEstuary, 2 October 2002.

30. Ibid.

31. Environmental Protection Agency, Region4, Decision Document: Regarding Department ofEnvironmental Protection’s Section 303(d) ListAmendment Submitted on October 1, 2002 andSubsequently Amended on May 12, 2003, 11 June2003. In this document, the EPA also approvedthe use of mean chlorophyll-a levels instreams as a “backstop” to the assessment ofincreases over historical chlorophyll-a levelsand site specific observation of changes inflora and fauna “pending FDEP’s adoption ofstate numeric criteria for nutrients.”

32. Florida Department of EnvironmentalProtection, Planning for Fenholloway RecoveryUnderway, downloaded 24 June 2002.

33. US Environmental Protection Agency,Office of Administrative Law Judges, UnitedStates Environmental Protection Agency Beforethe Administrator, In the Matter of BuckeyeFlorida, Order Granting EPA’s Motion forSummary Determination and Denying HopesCounter-Motion, downloaded 25 June 2003,http://www.epa.gov/oalj/orders/0307.

34. Suwannee River Water ManagementDistrict, Surface Water Quality and BiologicalAnnual Report, June 2002.

35. Florida Department of EnvironmentalProtection, St. Johns River Water ManagementDistrict, Development of Total Maximum DailyLoads and Pollution Load Reduction Goals for theLower St. Johns River Basin: Plan of Study, March2002.

36. 62-303.350 (1) F.A.C.

37. St. Johns River Water ManagementDistrict, Lake Apopka: Cleaning Up Florida’sMost Polluted Large Lake, February 2001.

38. National Research Council, Restoration ofAquatic Ecosystems: Science, Technology andPublic Policy, 1992, 395.

39. Fla. Stat. Ch. 576.045

40. Fla. Stat. Ch. 373.4595

41. South Florida Water Management District,Everglades Best Management Practices Program,Annual Report: Water Year 2000, 27 November2000.

42. See note 23.

43. Wisconsin Department of NaturalResources, “Reining In Polluted Runoff:Wisconsin Moves from the Law to the Land,Wisconsin Natural Resources, June 2003.

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