Process for Reclassifying the Designated Uses of Florida Surface Waters and Conducting Use Attainability Analyses

Requirements for Reclassifying the Designated Uses of Florida Surface Waters andConducting Use Attainability AnalysesRuss Frydenborg Nia WellendorfDEP Standards and Assessment SectionPublic Workshop 11-18-09Document DescriptionDescribes the requirements and process for entities to petition DEP to change the designated use of a waterbodyChanges in use expectations require a structured scientific assessment of the factors affecting the attainment of the waterbodys designated uses, which DEP refers to as a Use Attainability Analysis (UAA)What Is a UAA?A structured assessment, including appropriate and scientifically defensible studies:water quality, biological, hydrological, and habitat environmental, social, and economic information, as described in Rule 62-302.400(11) (par. 10 in document), F.A.C., and the federal regulations at 40 CFR 131 10(g) to determine the present and future most beneficial use that can reasonably be attained in a waterbody.ContentsIntroductionChapter 2: Determining if a Use Change is AppropriateChapter 3: The Use Attainability AnalysisChapter 4: Economic Analyses for UAAsChapter 5: Use-specific Guidance for UAAs Appendix 1: Examples of Aquatic Life Use changesAppendix 2: Examples of Human Use changes Document PurposeHelp petitioners determine whether a use change is appropriate for a specific waterbody; The specific information that the petitioner must provide to DEP in UAA; A project planning checklist of the types of data, discussion of indicators, and discussion of data sources to assure that the UAA contains relevant information of sufficient quality for potential rulemaking; The process that DEP follows when reviewing final UAA studies, including required public participation. 5Overview of Steps1. Determine if a UAA is appropriate for your site and situation (Chapter 2). 2.Research the information needed for DEP and EPA to properly evaluate a use change (Chapter 3). 3.Contact the DEP Standards and Assessment Section to discuss the UAA approach as it applies to a specific waterbody. Overview of Steps (cont.)4. If establishing a more stringent designated use (addition of a use), appropriate and scientifically defensible information must demonstrate that:The proposed reclassification will establish the present and future most beneficial use of the waters; The proposed use is clearly in the public interest; andThe proposed use is attainable [Rule 62-302.400(11)(c)].4. If establishing a less stringent use (removal of a use), appropriate and scientifically defensible information must be presented to also demonstrate that: None of the uses being removed are existing uses;The uses to be removed would not be attained by implementing effluent limits and best management requirements for nonpoint source pollution control; andOne or more of the criteria from Rule 62-302.400(11)(c), F.A.C., apply (next slide):Overview of Steps (cont.)Rule 62-302.400(11)(c) (paraphrased)1. Naturally occurring pollutant concentrations; or2. Natural, ephemeral, intermittent or low flow conditions or water levels , or3. Non-abatable human caused conditions or sources of pollution ; or4. Hydrologic modifications, and it is not feasible to restore the waterbody to its original condition ; or5. Physical features (habitat, aquatic substrate, etc.), unrelated to water quality; or6. More stringent controls would result in substantial and widespread economic and social impact.

Overview of Steps (cont.)4 (cont.). The applicant should consult with DEP to develop the proper approach for the UAA. Local government agencies should be involved, as well as the local public, interest groups, agencies, and interested tribes. 5.Perform necessary studies to complete the UAA. Overview of Steps (cont.)6. Assemble and submit the UAA to DEP. 7.DEP reviews the UAA. In this step, DEP determines whether the UAA supports a rule change. If appropriate, DEP will proceed with the formal rulemaking process, which is subject to Environmental Regulation Commission and EPA approval.

Changing Designated UseA change in the designated use classification is undertaken only when the designated use for a waterbody is suspected to be inaccurate or unattainable. A designated use cannot be removed if it is an existing use. Site Specific Alternative Criteria and variances are other administrative options.Note that human uses and aquatic life uses are assessed independently.

UAAs Must Address These Items:Identify the current designated use;Identify the desired use and defined geographic reach for use change petition;Identify the existing use;Identify the highest attainable use If making a use less stringent, demonstrate that one or more of the 6 factors in Rule 62-302.400(10)(c) applies.If making a use more stringent, demonstrate that the use is attainable after consideration of those 6 factors; UAAs Must Address These Items:Conduct an economic analysis (if applicable);Solicit and consider public input; andDemonstrate protection of downstream waters.Changing to More Stringent UsesCredible information showing the existence or attainability of the higher use is required. Determine whether the use is representative of the area, and whether other issues may interfere with changing the designated use. Attainability of the use shall include consideration of the factors in Rule 62-302.400(11). F.A.C. Potential Criteria Changes for more Stringent UsesHU-3 (default) to HU 1 (drinking water supply): All applicable criteria for drinking water uses.HU-3 to HU-2 (shellfish harvesting waters): All applicable criteria for shellfish harvesting use.

AL-2 (default) to AL -1 (exceptional): Biological health criteria, and any key parameters needed to protect exceptional aquatic communities (likely limited to alkalinity, color, specific conductance, dissolved oxygen, nutrients, pH, turbidity, and transparency.) Any criteria demonstrated to be required to protect exceptional communities may be made more stringent.Potential Criteria Changes for more Stringent UsesChanging to Less Stringent Uses (Additional Requirements)Information must be developed to demonstrate that the use is not existing (not attained since November 28, 1975) and is not attainable. Demonstrate that one or more of the 6 factors in Rule 62-302.400(11)(c) applies. Must be approved by the ERC and EPA . Potential Criteria Changes Associated with a Less Stringent UseHU-3 (default) to HU-4 (incidental recreational contact): Bacteria only, all other fish consumption criteria continue to apply.HU-3 to HU-5 (systems where recreational contact is not permitted due to physical dangers): Bacteria only, all other fish consumption criteria continue to apply.HU-3 to HU-6 (agricultural water supply): Those criteria needed for protection of waters for crop irrigation or consumption by livestock will apply.Potential Criteria Changes Associated with a Less Stringent UseHU-3 to HU-7 (industrial uses): No HU-7 waters currently exist and no HU-7 downgrades are anticipated.Potential Criteria Changes Associated with a Less Stringent UseAL-2 (default) to AL- 3 (biological communities with moderate changes due to habitat and hydrology): Biological health criteria, and selected parameters (likely limited to alkalinity, color, specific conductance, dissolved oxygen, nutrients, pH, turbidity, and transparency). All AL-2 criteria to protect against toxicity or adverse physiological or behavioral responses will remain in effect.Potential Criteria Changes associated with a less Stringent UseAL-2 to AL-4 (biological communities with substantial changes due to habitat and hydrology): Biological health criteria, and selected parameters (likely limited to alkalinity, color, specific conductance, dissolved oxygen, nutrients, pH, turbidity, and transparency). All AL-2 criteria to protect against toxicity or adverse physiological or behavioral responses will remain in effect.Components of a UAA1. A waterbody survey and assessment which examines the physical, chemical, and biological characteristics of the waterbody to identify and define the existing and attainable uses of the waterbody. 2. A wasteload allocation may be appropriate for waterbodies with significant point source loads. 3. An economic analysis to determine if the use change would cause substantial and widespread economic and social impacts (if necessary).Protection of Downstream WatersWhenever a waterbody is reclassified to a less stringent use, the removal of the use must not result in the nonattainment of the beneficial uses of downstream waters:Determine the criteria and the extent to which downstream uses may be put at risk by the new criteria, and Use modeling, or other procedures (such as empirical evidence), to ensure that downstream uses will be protected and criteria will be met. Economics and UAAsEconomic considerations are taken into account when a UAA is based on provisions in Rule 62-302.400(11)(c)4 and 6., F.A.C.: 4. Physical/hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the waterbody to its original condition 6. Controls more stringent than those required by 301(b) and 306 of the Act would result in substantial and widespread economic and social hardship.Economics and UAAsIf attaining the use would result in substantial and widespread economic and social hardship, the CWA allows for non-attainment (unless it is an existing use). Analyses are described in USEPA (1995) Interim Economic Guidance for Water Quality StandardsA Statement of Estimated Regulatory Cost (SERC) is also required. Petitioner provides the information, and DEP conducts the analysis.Aquatic Life Use ChangesExamine biological communities (such as algae, plants, invertebrates, and fish), and their degree of deviation from natural background conditionsDetermine the physical or water quality cause for the deviationDetermine if the physical or water quality factors can be controlled or abated.

Aquatic Life Use CategoriesAL-1 Propagation and maintenance of exceptional aquatic communities. AL-2 Propagation and maintenance of healthy, well-balanced aquatic community. AL-3Protection of an aquatic community with moderate deviation of biological structure and function. AL-4Protection of an aquatic community with substantial deviation of biological structure and function . AL Indicators ChecklistPhysical IndicatorsEcoregion, Soils, Slopes, Physiography, Habitat, etc.Chemical/Water Quality IndicatorsOrganic contaminants, Inorganic contaminantsPhysical/chemical parameters (e.g., pH, DO, etc.)Biological IndicatorsAlgae composition and biomassMacrophyte community structure and function Invertebrate community structure and function Vertebrate (fish and other) community structure and function.

Example: Changing Use from AL-2 to AL-1

Example: Changing Use from AL-2 to AL-1 A group wants to reclassify a river in the Florida panhandle from AL-2 to AL-1, to provide enhanced protection Following the UAA Process document, the group collects water quality, biological, hydrological, and habitat data, as well as environmental, social, and economic information, intended to demonstrate that:The proposed reclassification establishes the present and future most beneficial use of the waters; The proposed reclassification is in the public interest; andThe proposed use is attainable.

FindingsEight sites studied, 4 samplings per siteSCI data (except site 8) were above the threshold of 64 for exceptional biological communities,Low levels of algae were present (based on RPS results). Habitat quality was routinely in the optimal category (>120), Nutrients were moderate, the DO was routinely higher than 5.0 mg/L, and conductivity was below 100 mhos/cm (except at site 8, which was subjected to urban stormwater runoff). DEP determined that the river , except site 8 , supported increasing the use to an AL-1 classification, based on:Existing use: Exceptional aquatic life use (exceptional SCI scores and low RPS ranks).Highest attainable use: Data show that the AL-1 use is currently attained. Water quality data suggest that DO and conductivity supported an exceptional community.Economic analysis: The higher use is already being met, so it will not cause any economic hardship .Public input: Majority of the public supported the use change. The County commission passed a resolution supporting the reclassification.Protection of downstream waters: Downstream waters are inherently protected by a higher use designation

Example: Changing Use from AL-2 to AL-3

Example: Changing Use from AL-2 to AL-3A group petitioned DEP to reclassify a set of canals with similar characteristics, from AL-2 to AL-3. The submittal included information intended to demonstrate that:The proposed reclassification establishes the present and future most beneficial use of the waters; The proposed reclassification is in the public interest; The proposed use is attainable;None of the uses being removed are existing uses;The uses to be removed will not be attained by implementing effluent limits and reasonable BMPs for nonpoint sources;One or more of the criteria from Rule 62-302.400(11)(c), F.A.C., apply

Findings:Sampling was conducted at 12 locations representative of canals in the area, on 4 occasions. SCI routinely failed the healthy threshold of 40. Priority pollutant data did not show any water quality problems. Low SCI scores were a direct result of marginal habitat quality . The canals are channelized, created from uplands, and are maintained for flood control purposes. Habitat (aquatic vegetation, trees) is purposely removed. Findings (cont.)Substantial hydrologic modification occurred. Fish data indicated that several age classes of largemouth bass and sunfish lived in the canals. No information indicated that the canals ever supported an aquatic community of higher quality than what currently occurs.

DEP determined that the submittal supported a decrease in use to an AL-3 , based on:Current designated use: AL-2, Desired use: AL-3. Existing use: Although the SCI scores were failing, the macroinvertebrate collections and thriving fishery indicate a moderate rather than substantial deviation from background, so an AL-4 classification is not warranted. These waterways were created from uplands for flood control prior to 1975, and there was no evidence suggesting that a higher aquatic life use has ever been attained in these canals.Highest attainable use: Maintenance of the canals for flood control preclude the presence of the good habitat and hydrology necessary to support an AL-2 use. Water quality is sufficient to meet AL-3. Subparagraphs 3, 4, and 5 from Rule 62-302.400(11)(c), F.A.C., apply.Economic analysis: The cost to alter these canals to support aquatic life of AL-2 is prohibitive, as is the potential cost to homeowners if the flood control function of the canals is not maintained.Public input: Flood control from this waterway is critical to the public. Members of the public also are very interested in maintaining the current fishery, which would be protected by AL-3 criteria and there would be no change to the human use. The county passed a resolution supporting the change.Protection of downstream waters: Modeling indicated that water quality treatment works located downstream of the reclassified canals would completely protect downstream uses.Human Use ChangesDocument discusses specific information needs for each human use categoryWater quality criteria protective of drinking water source and shellfish harvesting must be met to add those usesUse water quality data, photos, testimonials, survey data, to document existing and attainable recreational use

Human UsesHuman Use 1- Protection of potable water supply Human Use 2- Protection of shellfish harvesting. Human Use 3- Protection of fish consumption and full body contact.Human Use 4- Protection of fish consumption and incidental human contact. Human Use 5 - Protection of fish consumption, but human contact limited or restricted due to unsafe physical conditions. Human Use 6- Protection of waters for crop irrigation or consumption by livestock. Human Use 7- Utility and industrial uses. Example: Changing Use from HU-3 to HU-2

Example: Changing Use from HU-3 to HU-2DEP received a request from DACS to reclassify an estuarine bay from HU-3 to HU-2. The submittal included water quality, biological data and analyses, as well as environmental, social, and economic information, intended to demonstrate that:The proposed reclassification establishes the present and future most beneficial use of the waters; The proposed reclassification is in the public interest; andThe proposed use is attainable

Example: Changing Use from HU-3 to HU-2A change from HU-3 to HU-2 only involves the addition of shellfish harvesting. The potential ingestion of raw shellfish justifies a more stringent bacteriological criteria.Sampling for bacterial indicated that HU-2 criteria were routinely being met.DEP determined that the submittal supported the use change to an HU-2 classification, based on:Existing use: Swimming and fishing are existing uses, and protected under both HU-2 and HU-3. Shellfish harvesting has been discouraged in this bay since 1975 because of bacteria concerns, but septic tanks have recently been removed. Highest attainable use: The bay can meet the criteria that protect HU-2 waters. Shellfish populations are suitable for consumption in the bay, so the HU-2 classification is attainable, except in excluded areas around the marinas where dredging is permitted.

Economic analysis: Shellfishing capability would benefit the region , and would not be costly because the bay has already been restored.Public interest: Once the marinas were considered, there was no public opposition. County passed resolution supporting the reclassification.Protection of downstream waters: Downstream waters are inherently protected by a higher use designation.

Example: Changing Use from HU-3 to HU-4

Example: Changing Use from HU-3 to HU-4A city petitioned DEP to reclassify a group of concrete lined, urban drainage ditches with similar characteristics, within city limits, from HU-3 to HU-4. The submittal included information intended to demonstrate that:The proposed reclassification establishes the present and future most beneficial use of the waters; The proposed reclassification is in the public interest; The proposed use is attainable;None of the uses being removed are existing uses;The uses to be removed will not be attained by implementing effluent limits and reasonable BMPs for nonpoint sources;One or more of the criteria from Rule 62-302.400(11)(c), F.A.C., applyExample: Changing Use from HU-3 to HU-4A change from HU-3 to HU-4 only involves a change from full body contact recreation to incidental contact recreation. The reduced risk of ingestion of water with incidental contact justifies a less stringent bacteriological criteria.DEP determined that the submittal supported use change to an HU-4 classification, based on:Existing use: The primary use of these ditches is flood control. Fishing is protected under both HU-3 and HU-4. Public surveys revealed that people may have waded in these ditches, but there is no evidence of swimming either now or since 1975. Highest attainable use: Full body contact use is not attainable, given the shallow and intermittent flow. Incidental recreation could occur, and the criteria for HU-4 are attainable.

Economic analysis: Attempting to achieve HU3 bacteriological criteria would cost the city $8 million that could have been used to benefit downstream lakes.Public input: Several members of the public were initially against the idea of changing the classification, but agreed that they did not want to spend public money to protect swimming in ditches where swimming cannot occur.Protection of downstream waters: The city allocated funds to construct treatment facilities to treat the water to HU-3 criteria before it reaches downstream waters.Example: Changing Use from HU-3 to HU-5A potential new discharger petitioned DEP to reclassify a canal from HU-3 to HU-5. The petitioner was concerned that several of the fish consumption-based water quality criteria could not be achieved in their discharge. DEP notified the discharger that the HU-5 classification required all HU-3 human health criteria to be met.DEP received evidence from area residents that fishing was common in the canal, and the waterbody attained HU-3 criteria. Since existing uses cannot be removed and the fish consumption criteria are equivalent, DEP denied the request. Summary of Steps to Change a Designated Use1. An acceptable UAA must be submitted to DEP which demonstrates that he proposed reclassification:Establishes the present and future most beneficial use of the waters; Is in the public interest; andWould not remove existing uses and protects downstream waters ;Addresses the factors in Rule 62-302.400(11). F.A.C. 2. DEP must modify the designated use in the water quality standards through a formal rule revision process, including public input and approval by the ERC3. EPA must approve the ruleCommentsPlease send written comments to Eric ShawEric.shaw@dep.state.fl.us