UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON D.C. 20460

OFFICE OF THE ADMINISTRATOR SCIENCE ADVISORY BOARD

April 27, 2010 EPA-SAB-10-006 The Honorable Lisa P. Jackson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 Subject: SAB Review of Empirical Approaches for Nutrient Criteria Derivation Dear Administrator Jackson: EPA’s Office of Water (OW) requested that the Science Advisory Board (SAB) review the Agency’s draft guidance document titled Empirical Approaches for Nutrient Criteria Derivation (“Guidance”). The Guidance is one of a series of technical documents developed by OW to describe approaches and methods for developing numeric criteria for nutrients. The Guidance specifically focuses on empirical approaches for determining stressor-response relationships to derive numeric nutrient criteria. In response to the Agency’s advisory request, the SAB Ecological Processes and Effects Committee, augmented with additional experts, met on September 9-11, 2009 to conduct a peer review of the Guidance. OW requested that the SAB: 1) comment on the technical merit of the methods and approaches described in the Guidance; 2) suggest approaches that might be considered to improve the Guidance; and 3) offer suggestions to improve the utility of the Guidance for state and tribal water quality scientists and resource managers. The enclosed advisory report provides the advice and recommendations of the Committee. The SAB commends EPA for addressing nutrient issues. Nutrients (nitrogen and phosphorus) are a major cause of impairment in the quality of the Nation’s waters, and the SAB recognizes the importance of EPA’s efforts to develop numeric nutrient criteria. The stressor-response approach is a legitimate, scientifically based method for developing numeric nutrient criteria if the approach is appropriately applied (i.e., not used in isolation but as part of a weight-of-evidence approach). We encourage the Agency to continue this important work. EPA’s draft Guidance provides a primer on a limited set of statistical methods that could be used in deriving nutrient criteria based on stressor-response relationships. However, in its present form, the Guidance does not present a complete or balanced view of using the statistical

methods to develop criteria. Restructuring and substantial revision of the Guidance is needed prior to its release to make the document more useful to state and tribal water quality scientists and resource managers. In general, we find that the scope and intended use of the Guidance should be more clearly identified. The empirical stressor-response framework described in the Guidance is one possible approach for deriving numeric nutrient criteria, but the uncertainty associated with estimated stressor-response relationships would be problematic if this approach were used as a “stand alone” method because statistical associations do not prove cause and effect. We therefore recommend that the stressor-response approach be used with other available methodologies in the context of a tiered approach where uncertainties in different approaches are recognized, and weight-of-evidence is used to establish the likelihood of causal relationships between nutrients and their effects for criteria derivation. In this regard, we recommend that EPA more clearly articulate how this particular guidance fits within the Agency’s decision-making and regulatory processes and, specifically, how it relates to and complements EPA’s other nutrient criteria approaches, technical guidance manuals, and documents. The SAB also recognizes that methods in the Guidance do not address downstream impacts of excess nutrients. The SAB has provided many recommendations to improve the Guidance and strongly recommends that they be incorporated into the final document. These recommendations focus on revising the document to address: cause and effect; the utility and limitations of the statistical methods and approaches in the document; the supporting analyses and data needed to correctly identify predictive relationships; the need for more guidance and examples to describe when and how to use various methods and approaches; linkages among designated uses and stressors; and the need for a more specific and descriptive framework outlining the steps in the criteria development process. Finally, the SAB strongly recommends that EPA invest in providing the technical support and training needed to make the approaches and methods in the final Guidance more useful to state and tribal water resource managers. Thank you for the opportunity to review this important guidance document. The SAB looks forward to receiving the Agency’s response to this advisory report and stands ready to provide additional advice as EPA continues to develop nutrient criteria guidance.

Sincerely,

/Signed/ /Signed/ Dr. Deborah L. Swackhamer, Chair Dr. Judith L. Meyer, Chair Science Advisory Board Ecological Processes and Effects Committee

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NOTICE

This report has been written as part of the activities of the EPA Science Advisory Board, a public advisory group providing extramural scientific information and advice to the Administrator and other officials of the Environmental Protection Agency. The Board is structured to provide balanced, expert assessment of scientific matters related to the problems facing the Agency. This report has not been reviewed for approval by the Agency and, hence, the contents of this report do not necessarily represent the views and policies of the Environmental Protection Agency, nor of other agencies in the Executive Branch of the Federal government, nor does mention of trade names or commercial products constitute a recommendation for use. Reports of the EPA Science Advisory Board are posted on the EPA website at http://www.epa.gov/sab.

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U.S. Environmental Protection Agency Science Advisory Board

Ecological Processes and Effects Committee (FY 2009) Augmented for Review of Nutrient Criteria Guidance

CHAIR Dr. Judith L. Meyer, Distinguished Research Professor Emeritus, University of Georgia, Lopez Island, WA MEMBERS Dr. Richelle Allen-King, Professor and Chair, Department of Geology, University at Buffalo, Buffalo, NY Dr. Ernest F. Benfield, Professor of Ecology, Department of Biological Sciences, Virginia Tech, Blacksburg, VA Dr. G. Allen Burton, Professor and Director, Cooperative Institute for Limnology and Ecosystems Research, School of Natural Resources and Environment, University of Michigan, Ann Arbor, MI Dr. Peter M. Chapman, Principal and Senior Environmental Scientist, Environmental Sciences Group, Golder Associates Ltd, Burnaby, BC, Canada Dr. Loveday Conquest, Professor, School of Aquatic and Fishery Sciences, University of Washington, Seattle, WA Dr. Wayne Landis, Professor and Director, Department of Environmental Toxicology, Institute of Environmental Toxicology, Huxley College of the Environment , Western Washington University, Bellingham, WA Dr. James Oris, Professor, Department of Zoology, Miami University, Oxford, OH Dr. Amanda Rodewald, Associate Professor of Wildlife Ecology, School of Environment and Natural Resources, The Ohio State University, Columbus, OH Dr. James Sanders, Director and Professor, Skidaway Institute of Oceanography, Savannah, GA Mr. Timothy Thompson, Senior Environmental Scientist, Science and Engineering for the Environment, LLC, Seattle, WA

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CONSULTANTS Dr. Victor Bierman, Senior Scientist, LimnoTech, Oak Ridge, NC Dr. Elizabeth Boyer, Associate Professor, School of Forest Resources and Assistant Director, Pennsylvania State Institutes of Energy & the Environment, and Director, Pennsylvania Water Resources Research Center, Pennsylvania State University, University Park, PA Dr. Mark David, Professor, Natural Resources & Environmental Sciences, University of Illinois, Urbana, IL Dr. Douglas McLaughlin, Principal Research Scientist, National Council for Air and Stream Improvement, Inc., Western Michigan University, Kalamazoo, MI Dr. Patrick J. Mulholland, Distinguished Research Staff Member, Carbon & Nutrient Biogeochemistry Group, Environmental Sciences Division, Oak Ridge National Laboratory, Oak Ridge, TN Dr. Andrew N. Sharpley, Professor, Department of Crop, Soil and Environmental Sciences, Division of Agriculture, University of Arkansas, Fayetteville, AR SCIENCE ADVISORY BOARD STAFF Dr. Thomas Armitage, Designated Federal Officer, U.S. Environmental Protection Agency, Washington, DC

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U.S. Environmental Protection Agency Science Advisory Board

CHAIR Dr. Deborah L. Swackhamer, Professor and Charles M. Denny, Jr., Chair in Science, Technology and Public Policy and Co-Director of the Water Resources Center, Hubert H. Humphrey Institute of Public Affairs, University of Minnesota, St. Paul, MN SAB MEMBERS Dr. David T. Allen, Professor, Department of Chemical Engineering, University of Texas, Austin, TX Dr. Claudia Benitez-Nelson, Associate Professor, Department of Earth and Ocean Sciences and Marine Science Program, University of South Carolina, Columbia, SC Dr. Timothy Buckley, Associate Professor and Chair, Division of Environmental Health Sciences, College of Public Health, The Ohio State University, Columbus, OH Dr. Thomas Burke, Professor, Department of Health Policy and Management, Johns Hopkins Bloomberg School of Public Health, Johns Hopkins University, Baltimore, MD Dr. Deborah Cory-Slechta, Professor, Department of Environmental Medicine, School of Medicine and Dentistry, University of Rochester, Rochester, NY Dr. Terry Daniel, Professor of Psychology and Natural Resources, Department of Psychology, School of Natural Resources, University of Arizona, Tucson, AZ Dr. George Daston, Victor Mills Society Research Fellow, Product Safety and Regulatory Affairs, Procter & Gamble, Cincinnati, OH Dr. Costel Denson, Managing Member, Costech Technologies, LLC, Newark, DE Dr. Otto C. Doering III, Professor, Department of Agricultural Economics, Purdue University, W. Lafayette, IN Dr. David A. Dzombak, Walter J. Blenko Sr. Professor, Department of Civil and Environmental Engineering, College of Engineering, Carnegie Mellon University, Pittsburgh, PA Dr. T. Taylor Eighmy, Vice President for Research, Office of the Vice President for Research, Texas Tech University, Lubbock, TX Dr. Elaine Faustman, Professor, Department of Environmental and Occupational Health Sciences, School of Public Health and Community Medicine, University of Washington, Seattle, WA

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Dr. John P. Giesy, Professor and Canada Research Chair, Veterinary Biomedical Sciences and Toxicology Centre, University of Saskatchewan, Saskatoon, Saskatchewan, Canada Dr. Jeffrey Griffiths, Associate Professor, Department of Public Health and Community Medicine, School of Medicine, Tufts University, Boston, MA Dr. James K. Hammitt, Professor, Center for Risk Analysis, Harvard University, Boston, MA Dr. Rogene Henderson, Senior Scientist Emeritus, Lovelace Respiratory Research Institute, Albuquerque, NM Dr. Bernd Kahn, Professor Emeritus and Associate Director, Environmental Radiation Center, School of Mechanical Engineering, Georgia Institute of Technology, Atlanta, GA Dr. Agnes Kane, Professor and Chair, Department of Pathology and Laboratory Medicine, Brown University, Providence, RI Dr. Nancy K. Kim, Senior Executive, New York State Department of Health, Troy, NY Dr. Catherine Kling, Professor, Department of Economics, Iowa State University, Ames, IA Dr. Kai Lee, Program Officer, Conservation and Science Program, David & Lucile Packard Foundation, Los Altos, CA Dr. Cecil Lue-Hing, President, Cecil Lue-Hing & Assoc. Inc., Burr Ridge, IL Dr. Floyd Malveaux, Executive Director, Merck Childhood Asthma Network, Inc., Washington, DC Dr. Lee D. McMullen, Water Resources Practice Leader, Snyder & Associates, Inc., Ankeny, IA Dr. Judith L. Meyer, Distinguished Research Professor Emeritus, Odum School of Ecology, University of Georgia, Lopez Island, WA Dr. Jana Milford, Professor, Department of Mechanical Engineering, University of Colorado, Boulder, CO Dr. Christine Moe, Eugene J. Gangarosa Professor, Hubert Department of Global Health, Rollins School of Public Health, Emory University, Atlanta, GA Dr. Eileen Murphy, Manager, Division of Water Supply, New Jersey Department of Environmental Protection, Trenton, NJ

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Dr. Duncan Patten, Research Professor, Department of Land Resources and Environmental Sciences, Montana State University, Bozeman, MT Dr. Stephen Polasky, Fesler-Lampert Professor of Ecological/Environmental Economics, Department of Applied Economics, University of Minnesota, St. Paul, MN Dr. Stephen M. Roberts, Professor, Department of Physiological Sciences, Director, Center for Environmental and Human Toxicology, University of Florida, Gainesville, FL Dr. Amanda Rodewald, Associate Professor, School of Environment and Natural Resources, The Ohio State University, Columbus, OH Dr. Joan B. Rose, Professor and Homer Nowlin Chair for Water Research, Department of Fisheries and Wildlife, Michigan State University, East Lansing, MI Dr. Jonathan M. Samet, Professor and Flora L. Thornton Chair, Department of Preventive Medicine, University of Southern California, Los Angeles, CA Dr. James Sanders, Director and Professor, Skidaway Institute of Oceanography, Savannah, GA Dr. Jerald Schnoor, Allen S. Henry Chair Professor, Department of Civil and Environmental Engineering, Co-Director, Center for Global and Regional Environmental Research, University of Iowa, Iowa City, IA Dr. Kathleen Segerson, Professor, Department of Economics, University of Connecticut, Storrs, CT Dr. V. Kerry Smith, W.P. Carey Professor of Economics , Department of Economics, W.P Carey School of Business, Arizona State University, Tempe, AZ Dr. Herman Taylor, Professor, School of Medicine, University of Mississippi Medical Center, Jackson, MS Dr. Barton H. (Buzz) Thompson, Jr., Robert E. Paradise Professor of Natural Resources Law at the Stanford Law School and Perry L. McCarty Director, Woods Institute for the Environment, Stanford University, Stanford, CA Dr. Paige Tolbert, Associate Professor, Department of Environmental and Occupational Health, Rollins School of Public Health, Emory University, Atlanta, GA Dr. Thomas S. Wallsten, Professor and Chair, Department of Psychology, University of Maryland, College Park, MD Dr. Robert Watts, Professor of Mechanical Engineering Emeritus, Tulane University, Annapolis, MD

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SCIENCE ADVISORY BOARD STAFF Dr. Angela Nugent, Designated Federal Officer, U.S. Environmental Protection Agency, Washington, DC

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TABLE OF CONTENTS

1. EXECUTIVE SUMMARY ................................................................................................. xi

2. INTRODUCTION................................................................................................................. 1

3. RESPONSE TO CHARGE QUESTIONS.......................................................................... 3

3.1. Charge Question 1. Improving the utility of the Guidance.............................................................................4

3.2. Charge Question 2. Selecting stressor and response variables .....................................................................10

3.3. Charge Question 3. Approaches to demonstrate the distribution of and relationships among variables............................................................................................................15

3.4. Charge Question 4. Methods for assessing the strength of the cause-effect relationship .............................20

3.5. Charge Question 5. Statistical methods to analyze the data .........................................................................22

3.6. Charge Question 6. Evaluating the predictive accuracy of stressor-response relationships .........................31

3.7. Charge Question 7. Evaluating candidate stressor-response criteria ............................................................37

4. REFERENCES.................................................................................................................... 43

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1. EXECUTIVE SUMMARY EPA’s Office of Water (OW) requested that the Science Advisory Board (SAB) conduct a peer review of Agency’s draft guidance document, Empirical Approaches for Nutrient Criteria Derivation (the “Guidance”). The Guidance was developed by OW to provide information for state and tribal water resource managers on empirical stressor-response approaches for developing numeric nutrient criteria. In response to the Agency’s advisory request, the SAB Ecological Processes and Effects Committee reviewed the Guidance. To augment the expertise on the Committee for this advisory activity, several additional scientists with specific knowledge and expertise in assessing the effects of nutrient enrichment in aquatic systems also participated in the review. EPA’s Office of Water develops ambient water quality criteria that serve as guidance to states and tribes for adoption of water quality standards. The water quality standards include designated uses, such as aquatic life protection and recreation, and criteria that define levels of water quality variables protective of the designated uses. Because nutrients (nitrogen and phosphorus) are a major cause of impairment in the quality of the Nation’s waters, state adoption of numeric nutrient criteria in water quality standards has been a high priority for OW. To assist the states and tribes in developing numeric nutrient criteria, OW published technical guidance manuals for developing nutrient criteria for lakes and reservoirs (U.S. EPA, 2000a), rivers and streams (U.S. EPA, 2000b), estuaries and coastal marine waters (U.S. EPA, 2001), and wetlands (U.S. EPA, 2008). These technical guidance manuals focus primarily on describing a reference condition approach for deriving criteria from distributions of nutrient concentrations and biological responses in minimally disturbed reference waterbodies. Other basic analytical approaches for nutrient criteria derivation recognized in the manuals include mechanistic modeling (i.e., predicting the effects of changes in nutrient concentrations using site-specific parameters and equations that represent ecological processes), which EPA intends to address as the subject of a later document, the stressor-response approach (discussed in the Guidance and considered in this advisory report), and the application and/or modification of established nutrient/algal thresholds. The stressor-response approach involves quantifying the relationship between nutrient concentrations and biological response measures related to the designated use of a waterbody. The Guidance outlines a five-step process for developing numeric nutrient criteria. It describes data analysis methods and approaches that could be used in each of these steps. Step one involves the use of exploratory analysis and data visualization tools to select variables that appropriately quantify the stressor (i.e., excess nutrients) and the response. Step two involves the use of conceptual models, existing literature, and other methods to assess the strength of the relationship represented in the stressor-response linkage. Step three involves the use of various statistical methods to analyze data, estimate stressor-response relationships, and identify thresholds that may be used to derive water quality criteria. Step four involves the evaluation of estimated stressor-response relationships (including validation of predictive performance for a stressor-response model, and selecting a model that best represents the data). Step five involves evaluating candidate nutrient criteria by predicting conditions that might be expected after implementing different criteria. The Guidance contains five sections, each addressing one of the proposed steps in the criteria development process. In its charge to the SAB, EPA requested that

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the Committee comment on the methods and approaches described in each section of the Guidance, recommend other approaches that might be considered, and offer suggestions to improve the utility of the Guidance for state and tribal water quality scientists and resource managers. In its responses to the charge questions, the Committee provides comments and recommendations to improve the Guidance and assist EPA in its efforts to support the development of numeric nutrient criteria. General comments on the Guidance The Committee recognizes the importance of EPA’s efforts to support numeric nutrient criteria development and encourages the Agency to continue this important work. In addition, we recognize the stressor-response approach as a legitimate, scientifically based method for developing numeric nutrient criteria if it is appropriately applied (i.e, not used in isolation but as part of a tiered weight-of-evidence approach using individual lines of evidence as discussed here). The draft Guidance provides a primer on a limited set of statistical methods that could be used in deriving numeric nutrient criteria. However, we find that improvements in the Guidance are needed prior to its release to make the document more useful to state and tribal water quality scientists and resource managers. In general, we find that the scope, limitations, and intended use of the Guidance should be more clearly described. The Guidance addresses only one type of “empirical” approach for derivation of numeric nutrient criteria (i.e., the stressor-response framework). As illustrated in many of the examples in the Guidance, considerable unexplained variation can be encountered when attempting to use the empirical stressor-response approach to develop nutrient criteria. The final Guidance should clearly indicate that such unexplained variation presents significant problems in the use of this approach. Further, the final document should clearly state that statistical associations may not be biologically relevant and do not prove cause and effect. However, when properly developed, biologically relevant statistical associations can be useful arguments as part of a weight-of-evidence approach (further discussed in Section 3.3, recommendation #7 of this advisory report) to criteria derivation. Therefore, the final Guidance should provide more information on the supporting analyses needed to improve the basis for conclusions that specific stressor-response associations can predict nutrient responses with an acceptable degree of uncertainty. Such predictive relationships can then be used with mechanistic or other approaches in a tiered weight-of-evidence assessment including cause and effect relationships to develop nutrient criteria.

Tiered environmental assessment is iterative. The initial assessment is the simplest (e.g., minimal ecosystem specific data) and most conservative (i.e., risks must be assumed in the absence of system-specific information), and thus, will not always provide sufficient certainty for decision-making. Cause and effect relationships would be inferred but not demonstrated; only a few lines of evidence would be available and the corresponding uncertainty great. At the highest tier, there would be several lines of evidence and factors that would confound the prediction of effects, such as other stressors or the morphology of the waterbody, and these need to be understood and considered. Successive tiers involve more focused (e.g., specific for particular ecosystem types) investigations, based on the results of the previous tier. Data needs are relatively few at the initial tier, but increase at successive tiers. However, through additional

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testing, measurement, or modeling, uncertainty decreases at successive tiers, and sources of uncertainty become better understood. Policy makers require information to understand the uncertainty associated with regulatory decisions, and to determine how much uncertainty may or may not be acceptable in particular decision-making contexts. Weight-of-evidence typically determines the tier at which uncertainty has been reduced sufficiently for informed management decision-making. It is important to explicitly describe and consider uncertainty at each step of the criteria development and decision-making process. The level of uncertainty of the conceptual model is likely to be rather low, as it is mostly based on well-established general principles of aquatic systems. Here the uncertainty is about how well the selected conceptual model fits the specific stressors and ecological systems under consideration. As criteria are developed it is important to address uncertainty associated with more specific factors that influence biological responses to nutrient inputs because uncertainty may cascade down through the analysis, in effect multiplying the uncertainty in later steps of the analysis.

The Committee also recommends that EPA more clearly articulate how the Guidance fits within the Agency’s decision-making and regulatory processes and, specifically, how it relates to and complements EPA’s other nutrient criteria technical guidance manuals and documents. As further discussed in the response to Charge Question 1, numeric nutrient concentration criteria and load-response models should be considered as two different approaches for accomplishing the goal of controlling excessive nutrient loadings. In addition, the Committee notes that the methods in the Guidance do not address the problem of excess nutrient enrichment downstream from waters for which the criteria are being developed. There is a need for methods to address this problem (one of which could be load-response modeling) and it should be clearly stated that this is beyond the scope of the current guidance document. Charge Question 1. Improving the utility of the Guidance for state and tribal water quality scientists and resource managers What suggestions do you have that will improve the utility of the draft document, Empirical Approaches for Nutrient Criteria Derivation, for State water quality scientists and resource managers to derive numeric nutrient criteria based on stressor-response relationships? The Committee finds that improvements in EPA’s Guidance are needed to make the document more useful to state and tribal water quality scientists and resource managers and to ensure against inadvertent misuse. In this regard, as previously mentioned, the scope, limitations, and intended use of the document should be more clearly identified. • The Committee recommends that EPA more clearly articulate how the Guidance fits within

the Agency’s decision-making and regulatory processes and, specifically, how it relates to and complements EPA’s other nutrient criteria technical guidance manuals and documents.

• In the Guidance, and the Agency’s related technical manuals, EPA should more clearly

address the importance of: 1) establishing linkages among designated uses and measured responses, stressors and measures of stressors; and 2) relating measures of stressors directly to deleterious effects on designated uses.

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• The Committee finds that the Guidance: 1) should provide a more specific and descriptive framework outlining the steps in the criteria development process (Figure 1 of this advisory report illustrates EPA’s proposed framework for developing nutrient criteria and the SAB recommendations for revision of the framework); 2) must be detailed and sophisticated enough to ensure statistical rigor, but additional support must also be provided by EPA to help users meet the technical demands of the methods; 3) should more clearly express the caveats and limitations of the statistical methods and approaches in the document, in particular the fact that statistical correlations do not establish cause and effect; 4) should contain more technical guidance and examples to describe when and how to use various methods and approaches; and 5) should provide additional guidance on data requirements for application of the statistical methods and approaches.

• Charge Question 2. Selecting stressor and response variables Section 1 of the draft guidance document reviews how to select the variables that appropriately quantify the stressor (i.e., excess nutrients) and the response (e.g., chlorophyll a, dissolved oxygen, or a biological index). Please comment on whether the factors to consider described in Section 1 of the draft document are appropriate for selecting response variables that are sensitive to nutrients and related to measures of designated uses. In Section 1 of the Guidance, EPA discusses factors to consider when selecting the stressor and response variables. In this regard, the Committee finds that EPA should strengthen the Guidance by including additional material. • The examples in the Guidance rely heavily on taxa richness as a response variable. Some

rationale as to how this variable relates to a designated use should accompany these examples. The coupling of response variables to designated uses must be clear and the rationale explained. Further, the Guidance could be strengthened considerably by presentation of examples showing strong nutrient-response relationships with response variables that are clearly linked to designated uses.

• The Committee notes that co-limitation by both nitrogen and phosphorus may be common in

many systems and regions. Therefore, the use of multivariate or data stratification approaches may be needed to identify nutrient-response relationships.

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Figure 1. EPA’s Framework for Developing Nutrient Criteria Based on Stressor-Response Relationships and SAB Recommendations for Revision

Step 2 Conceptual Model Development

(Consideration of Empirical Approach in Conjunction With Other Lines of Evidence)

Step 3 Selection and Preliminary

Evaluation of Data

Step 4 Evaluation of Stressor-Response

Approach

Is Stressor-Response

Appropriate*?

Step 5 Model Stressor-Response Selection

Step 6 Evaluate Candidate Stressor-Response Criteria

and Consider Other Methods if Necessary

Step 1 Selecting and Evaluating Data

Step 2 Assessing the Strength of the Cause-

Effect Relationship

Step 3 Analyzing Data

Step 4

Consider Other

Methods

EPA’s Framework as Described in Framework Recommended by the SAB The Draft Guidance Document (At each step in the process, the uncertainty should be

explicitly described.)

Evaluating Estimated Stressor-Response Relationships

Step 5 Evaluating Candidate Stressor-Response

Criteria

NO

YES

* This includes consideration of factors discussed in this advisory report such as cause and effect, relevance to known mechanisms and existing conditions, and ability to predict the probability of meeting designated uses.

Step 1 Problem Formulation and Goal

Development

Step 7 Criteria Development – Use Weight-of-Evidence Approach to Compare Output to Step 1 Goals

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• The Guidance should provide more information on the data needed to characterize other stressor and constraint variables (e.g., high dissolved organic carbon versus low dissolved organic carbon lakes, shaded versus unshaded streams) which are critical for applying multivariate techniques or for stratification/classification of univariate nutrient-response relationships.

• The Guidance focuses on total nitrogen and total phosphorus as the primary nutrient stressor

variables. In systems where inorganic nutrients are the dominant form, additional consideration should be given to inorganic nitrogen and phosphorus.

• The Guidance focuses on nutrient-response pathways driven by autotrophic processes

(nutrients directly control algal growth and excessive amounts of algae impair systems through indirect effects on dissolved oxygen, food web changes, and aesthetics). The Committee notes that nutrients can also directly control heterotrophic microbes (bacteria and fungi) and indirectly control decomposition of organic matter. This should be more fully discussed in the Guidance.

• The Guidance provides inadequate discussion of the temporal/spatial aspects of data needed

to develop relevant stressor-response relationships. The Guidance should discuss the conditions under which mean/median or maximum/minimum values of stressor and response variables might be more appropriate than discrete instantaneous measurements for developing stressor-response relationships. The use of time series data to describe specific systems should also be addressed. Although such guidance may be provided in various system-specific technical manuals (e.g., U.S. EPA, 2000a, b), a summary synthesis of the major points in these earlier documents should be included in the Guidance.

Charge Question 3. Approaches to demonstrate the distribution of and relationships among variables Section 1 outlines methods to visualize available data. Please comment on the effectiveness of the following approaches described in the document (listed below) to demonstrate the distribution of and relationships among variables.

a) Basic data visualization techniques b) Maps c) Conditional probability d) Classifications

Section 1 of the Guidance discusses exploratory data analysis, and presents several methods for demonstrating the distribution of and relationships among variables. In Subsections 1.2 - 1.6 several basic plotting techniques are presented. This is followed by a description of conditional probability analysis (a statistical approach for summarizing how changes in nutrient concentrations are associated with the probability of waterbodies attaining their designated uses). The Committee finds that the discussion of exploratory data analysis would be more effective if Section 1 of the Guidance were reorganized and expanded.

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• As further discussed in the response to Charge Question 3, Subsections 1.2 - 1.6 of the

Guidance should be reframed as a separate major section on exploratory data analysis, which should follow another separate major section on problem formulation. The material in Subsection 1.1 (selection of stressor-response variables) should be moved to a later section of the document.

• The Guidance should stress that exploratory data analysis, including data visualization,

should be conducted prior to inferential statistical analyses of potential stressors and responses. The objectives of exploratory data analysis should be to better understand the system of interest and to maximize accuracy and minimize variability of subsequently derived stressor-response relationships.

• Additional methods for exploratory data analysis should be discussed in the Guidance. These

additional methods should include: use of summary statistics, time series plots at fixed points in space; longitudinal plots at fixed points in time; bubble plots; Pearson and other correlation analyses; and maps that show temporal (monthly, seasonal, inter-annual) as well as spatial patterns.

• Clear guidance is needed on when and how to use the statistical methods and visualization

techniques presented in the document. The strengths and limitations of the methods should also be clearly identified. It would be useful to show several case examples that range from state-wide to local and data-rich to data-poor; and exemplify different types of aquatic ecosystems (e.g., headwater streams, large rivers, lakes and estuaries). Examples should note the strengths, limitations, assumptions and uncertainties that must be considered when using the methods to explore and visualize the data. These examples should demonstrate how nutrients can be identified as significant stressors in the presence of multiple stressors and habitat factors that may affect the resident communities.

• Subsection 1.6 of the Guidance (examination of stressor-response distributions across

different classes, e.g., ecoregions) should be expanded. The subsection should discuss additional data analyses and examples for different spatial classifications (e.g., ecoregions, states, watersheds, systems of interest), different waterbody types (e.g., streams, rivers, lakes, estuaries) and other important physical and chemical characteristics of systems that could affect the applicability of the nutrient criteria.

Charge Question 4. Methods for assessing the strength of the cause-effect relationship Section 2 of the draft guidance document describes methods for assessing the strength of the cause-effect relationship represented in the stressor-response linkage. Please comment on whether the draft guidance document adequately describes how conceptual models, existing literature, and empirical models can be used to assess how changes in nutrient concentration are likely to cause changes in the chosen response variable.

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Section 2 of the Guidance provides a summary of how the strength of candidate stressor-response pairings from step 1 can be assessed. The Committee recommends a number of improvements in this section. • It is appropriate to use conceptual models and existing literature as the scientific basis to

assess how changes in nutrient concentrations might affect response variables. However additional discussion of conceptual model selection, with specific examples, would be helpful. As illustrated in Figure 1 of this advisory report and further discussed in the response to Charge Question 7, the Committee recommends that development of the conceptual model occur in or immediately after the problem formulation step, early in the process of criteria development.

• Structural Equation Modeling (SEM) is discussed in the Guidance as a method for exploring

nutrient-ecosystem response. The Committee finds that use of SEM should be more fully explained. Clear examples of its use should be provided.

• The Guidance discusses the use of Propensity Score Analysis (PSA) to estimate stressor-

response relationships. PSA seems to be useful for sorting out groups that share covariates but may have unique nutrient characteristics. Such sorting could lead to a clearer understanding of how nutrients function amid multiple covariates. The example of PSA in the Guidance appendix is helpful, but further explanation of how to interpret the results of the analysis is needed. An analysis such as PSA should be discussed in a later section of the Guidance because it is a tool for analyzing data (Section 3 of the Guidance) rather than supporting potential relationships.

• It is not clear why EPA did not include information obtained from mechanistic models in

Section 2 of the Guidance. Because mechanistic models can integrate information on the interactions of major ecosystem processes to derive quantitative estimates of effects, they should be discussed as a means to interpret the stressor-response relationship.

Charge Question 5. Statistical methods to analyze the data Section 3 of the draft guidance document outlines statistical methods to analyze the data to estimate stressor-response relationships. Please comment on the appropriateness of the methods outlined in the document (listed below) for describing stressor-response relationships associated with nutrient pollution. What approaches would you recommend that could effectively address indirect pathways of adverse effects? What recommendations do you have to address the effects of confounding variables and uncertainty in the estimated relationships?

a) Simple linear regression b) Quantile regression c) Logistic regression d) Multiple linear regression e) Non-parametric changepoint analysis f) Discontinuous regression models

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Section 3 of the Guidance describes a number of statistical methods for analyzing data to estimate stressor-response relationships. The Committee provides comments addressing the appropriateness of statistical methods for estimating stressor-response relationships. • Methods described in the Guidance are generally appropriate for estimating stressor-response

relationships in support of conceptual models. However, as further discussed in the response to Charge Question 5, more careful consideration of confounding variables is necessary to maximize the potential for stressor-response relationships to reflect cause and effect between nutrient concentrations and ecological responses. The Guidance should be revised to state this more definitively and better assist its users in achieving this objective.

• Those charged with using stressor-response methodology may require additional technical

support to use the methods in the Guidance. • EPA should provide guidance on how the degree of the relationship (indicated by R2,

residuals analysis, and other evidence) relates to establishing predictive stressor-response relationships for numeric nutrient criteria development. The Committee also notes that uncertainty must be identified and quantified for all methods and at all stages of the process.

Charge Question 6. Evaluating the predictive accuracy of stressor-response relationships Section 4 of the draft guidance document describes how to evaluate the predictive accuracy of estimated stressor-response relationships. Please comment on the appropriateness of approaches in Section 4 of the guidance document and factors to consider in evaluating and comparing different estimates of the stressor-response relationships and selecting those most appropriate for criteria derivation. The Committee provides comments on the appropriateness of approaches discussed in Section 4 of the Guidance and the factors to consider in evaluating and comparing different estimates of stressor-response relationships in order to select those most appropriate for criteria development. Overall, the Committee finds that this section of the Guidance lacks the detail provided in other sections and needs improvement. • A clear framework for statistical model selection is needed. This framework should include:

1) an assessment of whether analyses indicate that the stressor-response approach is appropriate; 2) selection criteria to evaluate the capability of models to consider cause/effect and direct/indirect relationships between stressors and responses; 3) consideration of model relevance to known mechanisms and existing conditions; 4) establishment of biological relevance; and 5) ability to predict probability of meeting designated use categories.

• The concept of “validation” as presented in Subsection 4.1 of the Guidance is inconsistent

with other EPA guidance (U.S. EPA, 2009a) on development, evaluation, and application of models. Model corroboration (sensu “validation”) and uncertainty analysis should both be part of model evaluation and selection. These activities should be directed and informed by pre-established data quality objectives. Additional guidance is also needed on: data set

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specification and stratification; a suite of validation techniques (e.g., random or non-random held-out data, independent data, resampling/Monte Carlo); and appropriate quantitative levels of goodness-of-fit and uncertainty measures.

• With regard to validation, the Committee recommends that nutrient criteria should result

from a tiered weight-of-evidence approach based on the application of multiple empirical approaches and consideration of multiple response variables as appropriate. The nutrient criteria values that may be determined, after considering validation and uncertainty, may vary significantly from technique to technique or from response variable to response variable. EPA should provide greater guidance on how to assign numeric criteria when a range of responses among analyses/models results in different values.

Charge Question 7. Evaluating candidate stressor-response criteria Section 5 of the draft guidance document describes how to evaluate the candidate stressor-response criteria. An approach is outlined for predicting conditions that might result after implementing different nutrient criteria. Please comment on uncertainties that would remain if water quality criteria for nutrients were based solely on estimated stressor-response relationships and in what ways other information/analysis would help address and possibly reduce this uncertainty? Section 5 of the Guidance describes how to evaluate candidate numeric nutrient criteria. The Committee provides comments on uncertainties associated with deriving candidate water quality criteria. We also recommend improvements in the Guidance to help address and reduce uncertainty. • The Guidance describes approaches that use a data-mining exercise to demonstrate a possible

cause-effect relationship for the nutrient-ecosystem response. However, as further discussed in the response to Charge Question 7, the document does not address or partition the inherent critical uncertainties associated with the stressor-response approach. We note that these uncertainties can be extremely large (e.g., several orders of magnitude). To address these uncertainties, the Guidance should better document the physical, chemical and biological variables comprising the morphological relationships (e.g., habitat, spatial, and temporal) that define the aquatic system of interest, and which may be important in modifying the relationship between nutrient concentrations (both nitrogen and phosphorus) and observed endpoints. These factors may dominate the cause-effect pathway and should be documented so that uncertainty in the relationship between nutrient concentrations and measured endpoints can be reduced.

• The Guidance should indicate that, at the start of the initial problem formulation exercise, a

realistic cause-effect conceptual model must be developed, and that the model should include those factors that are likely to contribute most to the change in the response variable for the specific region/system of interest. Then data analyses can be used to evaluate which of the factors, or combination of factors, caused the observed change in the response variable.

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• As further discussed in the response to Charge Question 7, when predicting conditions that might result after implementing nutrient criteria, it is important to consider environmental factors that may cause differences in nutrient concentrations and biological conditions (e.g., lead and lag times) in response to nutrient loadings.

• There is considerable uncertainty in linkage of the response variables discussed in the

Guidance to the Clean Water Act goals of drinkable, swimmable, and fishable waters. The recommended response variables in the Guidance should be directly linked to these Clean Water Act goals.

2. INTRODUCTION EPA’s Office of Water (OW) requested that the Science Advisory Board (SAB) conduct a peer review of the Agency’s draft guidance document, Empirical Approaches for Nutrient Criteria Derivation (the “Guidance”). The Guidance was developed by EPA’s Office of Water to provide information for water resource managers on the scientific foundation for using empirical approaches to describe stressor-response relationships for developing numeric nutrient water quality criteria. The SAB Ecological Processes and Effects Committee (Committee) met on September 9th-11th, 2009 to review the Guidance. To augment the expertise on the Committee for this advisory activity, several additional scientists with specific knowledge and expertise in assessing the effects of nutrient enrichment in aquatic systems also participated in the review. This report transmits the advice of the Committee. EPA’s Office of Water is charged with protecting aquatic life, wildlife, and human health from adverse water-mediated effects of anthropogenic pollutants. In support of this mission, OW develops ambient water quality criteria that serve as guidance to states and tribes for adoption of water quality standards. State and tribal water quality standards include designated uses, such as aquatic life protection and recreation, and criteria that define levels of water quality variables protective of the designated uses. Because nutrients (nitrogen - N and phosphorus - P) are a major cause of water quality impairment in the Nation’s waters, state adoption of numeric nutrient criteria into water quality standards has been a high priority for OW. The Office of Water has stated that numeric nutrient water quality standards are important because they can: support development of nutrient related Total Maximum Daily Loads (TMDLs); provide targets for nutrient trading programs; and make it easier to write National Pollutant Discharge Elimination System (NPDES) permits, evaluate the success of nutrient runoff minimization programs, and measure environmental progress. To assist states and tribes in developing numeric nutrient criteria, OW published peer reviewed technical guidance for developing such criteria for lakes and reservoirs (U.S. EPA, 2000a), rivers and streams (U.S. EPA, 2000b), estuaries and coastal marine waters (U.S. EPA, 2001), and wetlands (U.S. EPA, 2008). These technical guidance documents focus primarily on a reference condition approach for deriving nutrient criteria from distributions of nutrient concentrations and biological responses in minimally disturbed reference waterbodies. Other basic analytical approaches for nutrient criteria derivation identified in prior guidance documents include mechanistic modeling (i.e., predicting the effects of changes in nutrient concentrations using site-specific parameters and equations that represent ecological processes), the stressor-response approach, and the application and/or modification of established nutrient/algal thresholds. The stressor-response approach involves quantifying a relationship between nutrient concentrations and biological response measures related to the designated use of a waterbody. In the Guidance, EPA states that, when developing nutrient criteria, the strengths and characteristics of each analytical approach should be carefully considered with respect to data availability and designated use protection needs. The Guidance outlines a five-step process for developing numeric nutrient criteria. Step one involves selecting variables that appropriately quantify the stressor (i.e., excess nutrients) and the

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response. The Guidance describes various techniques for exploratory data analysis to understand the properties of different variables and visualize data. These techniques include histograms, box and whisker plots, quantile-quantile plots, cumulative distribution plots, scatter diagrams, and spatial mapping. Step two involves assessing the strength of the relationship represented in the stressor-response linkage. The Guidance discusses the use of conceptual models, existing literature, and empirical models to assess the degree to which changes in nutrient concentration are likely to cause changes in a chosen response variable. Step three involves analysis of data to estimate stressor-response relationships and identify thresholds that may be used to derive criteria. The Guidance describes a number of statistical methods for analyzing data to estimate stressor-response relationships. These methods include linear regression, logistic regression, quantile regression, non-parametric changepoint analysis, and discontinuous regression modeling. Step four involves evaluating the stressor-response relationships (including validation of predictive performance for a stressor-response model and selecting a model that best represents the data). Step five involves evaluating candidate stressor-response criteria. The Guidance outlines an approach for predicting conditions that might be expected after implementing different nutrient criteria and selecting a value to optimize resource protection. The Committee was asked to comment on the scientific and technical merit of the methods and approaches discussed in the Guidance and to offer suggestions to improve the usefulness of the document to state and tribal water quality scientists and resource managers. The Committee recognizes the importance of EPA’s efforts to support numeric nutrient criteria development and encourages the Agency to continue this important work. In addition, we recognize the stressor-response approach as a legitimate, scientifically based method for developing numeric nutrient criteria if it is appropriately applied (i.e., not in isolation). The draft Guidance provides a primer on a limited set of statistical methods that could be used in deriving nutrient criteria based on stressor-response relationships. However, the Committee finds that improvements in the Guidance are needed prior to its release to make the document more useful to state and tribal water quality scientists and resource managers. In general, we find that the scope, limitations, and intended use of the Guidance need to be more clearly described. The Guidance addresses only one type of “empirical” approach for derivation of numeric nutrient criteria (i.e., the stressor-response framework). In this regard, we strongly recommend that EPA more clearly articulate how the Guidance fits within the decision-making and regulatory processes and, specifically, how it relates to and complements EPA’s other nutrient criteria technical guidance manuals and documents. As illustrated in the data analysis examples in the Guidance, a large degree of unexplained variation can be encountered when attempting to use the empirical stressor-response approach to develop nutrient criteria. The final Guidance should clearly indicate that such unexplained variation can present significant problems in the use of this approach. Further, the final document should clearly state that statistical associations may not be biologically relevant and do not prove cause and effect. When properly developed, statistical associations can be useful in supporting cause and effect arguments as part of a weight-of-evidence approach (further discussed in Section 3.3, recommendation #7 of this advisory report) to criteria development. Therefore, the final Guidance should provide more information on the supporting analyses needed to improve the basis for conclusions that specific stressor-response associations can predict nutrient responses with an acceptable degree of uncertainty. Such predictive relationships can then be applied, with

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mechanistic or other approaches, in a tiered weight-of-evidence assessment using individual lines of evidence in combination to develop nutrient criteria. Tiered environmental assessment is iterative. The initial assessment is the simplest (e.g., minimal ecosystem specific data) and most conservative (i.e., risks must be assumed in the absence of system-specific information), and thus will not always provide sufficient certainty for decision-making. Cause and effect relationships would be inferred but not demonstrated; only a few lines of evidence would be available and the corresponding uncertainty high. At the highest tier, there would be several lines of evidence and factors that would confound the prediction of effects, such as other stressors or the morphology of the waterbody, and these need to be understood and considered. Successive tiers will involve more focused (e.g., specific for particular ecosystem types) investigations, based on the results of the previous tier. Data needs are relatively few at the initial tier, but increase at successive tiers. However, through additional testing, measurement, or modeling, uncertainty decreases at successive tiers, and sources of uncertainty become better understood. Policy makers require information to understand the uncertainty associated with regulatory decisions, and to determine how much uncertainty may or may not be acceptable in particular decision-making contexts. Weight-of-evidence typically determines the tier at which uncertainty has been reduced sufficiently for informed management decision-making. It is important to explicitly describe and consider uncertainty at each step of the criteria development and decision-making process. The level of uncertainty of the conceptual model is likely to be rather low, as it is mostly based on well-established general principles of aquatic systems. Here the uncertainty is about how well the selected conceptual model fits the specific stressors and ecological systems under consideration. As criteria are developed, it is important to address uncertainty associated with more specific factors that influence biological responses to nutrient inputs because uncertainty may cascade down through the analysis, in effect multiplying the uncertainty at later steps. In our responses to the charge questions we have recommended specific revisions to improve various sections of the Guidance before it is published. These recommendations focus on: modifying the framework of the Guidance to make it more specific and descriptive (as illustrated in Figure 1 of this report); providing additional information on conditions under which the stressor-response framework may apply; more clearly expressing the caveats, limitations, and data requirements associated with the approaches presented in the Guidance; providing additional information and examples showing when and how to use methods and approaches described in the document; and providing more detailed and descriptive guidance on the use of statistical methods and additional support from EPA to help users meet the technical demands of the methods. 3. RESPONSE TO CHARGE QUESTIONS In the responses to each of the charge questions, the Committee has listed key findings and comments as bullets. These findings are followed by the Committee’s key recommendations. Various aspects of some cross-cutting findings have been discussed in the responses to more than one of the charge questions and cross-references have been provided.

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3.1. Charge Question 1. Improving the utility of the Guidance What suggestions do you have that will improve the utility of the draft document, Empirical Approaches for Nutrient Criteria Derivation, for State water quality scientists and resource managers to derive numeric nutrient criteria based on stressor-response relationships? The Committee was asked to offer suggestions to improve the usefulness of the Guidance to state and tribal water quality scientists and resource managers for deriving numeric nutrient criteria based on stressor-response relationships. In this regard, we find that the following improvements in EPA’s Guidance are needed. Findings concerning improving the utility of the Guidance • The scope, limitations, and intended use of the Guidance should be more clearly identified.

The Guidance addresses only one possible approach (i.e., the stressor-response framework) for derivation of numeric nutrient criteria. The Guidance would be more useful if it: 1) expanded upon the utility of the mechanistic modeling approach for understanding stressor-response relationships and the reference condition approach for criteria derivation; 2) more clearly articulated how it relates to EPA’s other published nutrient criteria guidance; 3) explained the linkages among designated uses, stressors, measures of stressors, and the deleterious effects of stressors on designated uses; 4) explained that the Guidance does not address “downstream” effects of nutrients; and 5) acknowledged other factors that have appeared to limit state progress toward developing nutrient criteria (e.g., lack of data and technical expertise, insufficient resources, or other factors).

• Substantial revision of the document is needed to facilitate identification of the most

scientifically defensible approaches to deriving numeric nutrient criteria. The Committee emphasizes that understanding the causative link between nutrient levels and impairment is necessary in order to assure that managing for particular nutrient levels will lead to desired outcomes. As further discussed below, the stressor-response framework in the Guidance may often not be the most appropriate approach for deriving numeric nutrient criteria. [See the response to Charge Question 5 for additional discussion.]

• Substantial revision of the document is needed to increase its usability while reducing the

likelihood of misuse. The Committee finds that the Guidance would be more useful if it: 1) provided a more specific and descriptive framework outlining the steps in the criteria development process (a specific example is illustrated in Figure 1); 2) contained more technical guidance and examples to describe when and how to use various methods and approaches in the document and ensure statistical rigor (with additional support provided from EPA to help users meet the technical demands of the methods); 3) more clearly expressed the caveats and limitations of the statistical methods and approaches in the document; and 4) provided additional guidance on data requirements for application of the statistical methods and approaches. [See the response to Charge Question 5 for additional discussion.]

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Step 7 Criteria Development – Use Weight-of-Evidence Approach to Compare Output to Step 1 Goals

Step 2 Conceptual Model Development

(Consideration of Empirical Approach in Conjunction With Other Lines of Evidence)

Step 3 Selection and Preliminary

Evaluation of Data

Step 4 Evaluation of Stressor-Response

Approach

Is Stressor-Response

Appropriate?*

Step 5 Model Stressor-Response Selection

Step 6 Evaluate Candidate Stressor-Response Criteria

and Consider Other Methods if Necessary

Step 1 Selecting and Evaluating Data

Step 2 Assessing the Strength of the Cause-

Effect Relationship

Step 3 Analyzing Data

Step 4 Evaluating Estimated Stressor-Response

Relationships

Step 5 Evaluating Candidate Stressor-Response

Criteria

Consider Other

Methods

EPA’s Framework as Described in Framework Recommended by the SAB The Draft Guidance Document (At each step in the process, the uncertainty should be

explicitly described.)

NO

YES

* This includes consideration of factors discussed in this advisory report such as cause and effect, relevance to known mechanisms and existing conditions, and ability to predict the probability of meeting designated uses.

Step 1 Problem Formulation and Goal

Development

Figure 1. EPA’s Framework for Developing Nutrient Criteria Based on Stressor-Response Relationships and SAB Recommendations for Revision

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• The absence of a direct causative relationship between stressor and response is one of the

most serious issues raised by the Committee. Without a mechanistic understanding and a clear causative link between nutrient levels and impairment, there is no assurance that managing for particular nutrient levels will lead to the desired outcome. There are numerous empirical examples where a given nutrient level is associated with a wide range of response values due to the influence of habitat, light levels, grazer populations and other factors. If the numeric criteria are not based upon well-established causative relationships, the scientific basis of the water quality standards will be seriously undermined. [See the responses to Charge Questions 4, 5, and 7 for additional discussion.]

• Numeric nutrient concentration criteria and load-response models should be considered as

two different approaches for accomplishing the goal of controlling excessive nutrient loadings. EPA has put forth the reference condition approach, the empirical stressor-response approach, and mechanistic modeling as basic analytic approaches for development of numeric nutrient criteria. However, the way in which EPA used results from mechanistic models to develop nutrient load reduction goals for the Gulf of Mexico (Mississippi River/Gulf of Mexico Watershed Nutrient Task force, 2008), and the way in which it is currently using mechanistic models for nutrient and sediment TMDLs for Chesapeake Bay, does not involve development or use of numeric nutrient criteria. The reason is that these mechanistic models (Scavia et al., 2004; Cerco and Noel, 2004) are load-response models, not empirical stressor-response models, and hence they obviate the need for numeric nutrient criteria because they directly link nutrient loads to response variables that represent water quality impairments (e.g., dissolved oxygen, chlorophyll, water clarity and acreage of submerged aquatic vegetation). This reasoning applies not only to mechanistic models but can also apply to empirical models. Turner et al. (2008) and Hagy et al. (2004) developed empirical statistical models for hypoxia in the Gulf of Mexico and Chesapeake Bay, respectively. Both of these models are load-response models and neither involves numeric nutrient concentrations. Further support for this reasoning can be found in Carleton et al. (2005), an EPA study designed to demonstrate the use of mechanistic models to develop nutrient criteria. In fact, in the two examples presented in this study, mechanistic models were actually used as load-response models and not to develop ambient nutrient concentration criteria.

Key recommendations concerning identification of the scope, limitations, and intended use of the document As a consequence of the Committee’s discussion and the findings listed above, we provide the following recommendations for revising the Guidance

1. EPA should specify how the Guidance is to be used in combination with other EPA nutrient criteria technical guidance manuals. In the preamble, the Guidance should clearly state that the contents represent one of several possible approaches (i.e., the stressor-response framework in the Guidance, mechanistic modeling, reference condition, and the application and/or modification of established nutrient/algal thresholds) that should be considered when deriving numeric nutrient criteria, and expand upon the utility

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of considering all approaches in a tiered weight-of-evidence approach before deciding on a particular course of action. In this regard, the Guidance should indicate that numeric nutrient concentration criteria and load-response models should be considered as two different approaches for accomplishing the goal of controlling excessive nutrient loadings.  To provide additional information on other approaches, EPA should consider appending to the document relevant portions from earlier guidance manuals.

2. EPA should more clearly articulate how the Guidance fits within the decision-making and

regulatory processes and, specifically, how it relates to and complements EPA’s nutrient criteria technical guidance manuals and other EPA technical documents. Outlining the fundamental principles that underlie the use of stressor-response relationships and providing background information on water quality impairments (e.g., causes and types of impairments, types of designated uses) might provide a useful context. Including a clearer description of how water-use designations influence the derivation of empirically-derived nutrient criteria might be considered as well. Considering the number and usefulness of other EPA-developed processes and recommendations, the authors should consider how they might improve the integration of this document with other EPA efforts. For example, the Guidance would benefit by incorporating the problem formulation stage that is part of the Ecological Risk Assessment process (see Figure 1 of this advisory report).

3. In the Guidance, EPA should address the importance of: 1) establishing linkages among

designated uses, measured responses, stressors, and measures of stressors; and 2) relating measures of responses directly to deleterious effects on designated uses. We agree with the statement in the Florida Department of Environmental Protection’s letter of September 4, 2009 (letter from Daryll Joyner, Florida Department of Environmental Protection to Thomas Armitage, Designated Federal Officer, EPA Science Advisory Board Staff Office) indicating that the “most scientifically defensible strategy for managing nutrients within the range of uncertainty is to verify a biological response prior to taking a management action.” This risk/performance-based approach to setting nutrient criteria is evident not only in Florida’s program, but also in those developed by California and Maine (Florida Department of Environmental Protection, 2009; Maine Department of Department of Environmental Protection, 2009; McLaughlin and Sutula, 2007). Those risk-based linkages are not addressed in either the Guidance or EPA’s Nutrient Criteria Technical Guidance documents for Rivers (U.S. EPA, 2000a), Lakes/Reservoirs (U.S. EPA, 2000b), and Estuaries (U.S. EPA, 2001).

4. In the Guidance, EPA should emphasize that the document does not address downstream effects of nutrient enrichment, which are intended to be the focus of a separate future document. Load-response models may prove useful in addressing downstream effects. The Committee has some reservations about addressing downstream effects in a separate document because fragmentation of the guidance documents will increase the likelihood that each will be used in isolation and potentially provide misleading results.

5. In the Guidance, EPA should acknowledge key factors that have appeared to limit state

progress toward developing nutrient criteria. It is the Committee’s understanding that

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one of the key aims of the Guidance is to accelerate State progress toward adopting numeric nutrient criteria. Because a variety of issues (such as limited availability of data and technical expertise, insufficient resources, and expense) are likely responsible for slow progress, the Guidance may not sufficiently remedy the underlying problems and therefore not facilitate state numeric nutrient criteria adoption. A more thorough exploration of the underlying reasons for slow progress would help EPA more directly address specific issues that impede progress.

Key recommendations concerning identification of the most scientifically defensible approaches to deriving numeric nutrient criteria

6. In the Guidance, EPA should recommend that users consider alternative conceptual and methodological approaches in cases where such approaches may be needed to account for complex problems associated with nutrients. The problem of eutrophication is complex, involving multiple causal variables, multiple response variables, and feedbacks among the variables (e.g., plants increase in response to nutrients then, in turn, those nutrients are provided a second time as plants decay). Moreover, response variables can be at multiple levels - primary response variables (e.g., plants), secondary response variables (e.g., dissolved oxygen [DO], pH), and tertiary response variables (e.g., fish, macroinvertebrates). A change in a response variable is unlikely to be satisfactorily described by changes in a single “causal” variable (e.g., total nitrogen [TN] or total phosphorus [TP]). The Committee suggests that developing conceptual models/diagrams (more detailed and accurate than shown in Figure 10 of the Guidance) to illustrate linkages and feedbacks between nutrients and response variables would be a useful approach to capture ecological complexity and better construct the conceptual framework.

7. In the Guidance, EPA should explicitly acknowledge the conditions under which the

stressor-response relationship applies. For example, the stressor-response relationship is relatively strong and well-established in lakes and reservoirs as opposed to streams and rivers where the relationship is more complex and influenced by many factors (e.g., shading, sediment, flow regime). In cases where the relationship is not the most appropriate lens through which the problem should be viewed, the user could be directed to other approaches that might better fit the problem. Other documents referenced above (e.g., Florida nutrient guidance document) provide useful examples. The Guidance would benefit from addition of an inset “red-flag” text box that lists circumstances or system characteristics that would alert the user to the need to consider approaches other than stressor-response. This box also might caution the user about mixed systems that have been highly modified and are not easily classified. Likewise, these caveats should also include explicit recognition that the most appropriate criteria may depend upon contexts of the waterbody (e.g., shaded versus open canopy streams), as was done in Florida’s guidance document. Searching for a single statewide criterion might obscure important relationships.

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8. The Committee suggests that EPA consider the following two key questions as the Agency selects variables to develop numeric criteria: 1) which measures will allow detection of impairment of designated uses? and 2) is the relationship sufficiently strong to determine a management or regulatory target (i.e., a criterion) to ensure that the designated use is protected? In certain cases, the most appropriate numeric criterion may not be a particular concentration level of a nutrient. Moreover, the stressor-response framework is but one approach for developing numeric nutrient criteria, and often it may not be the most appropriate. Because this concern cuts across all recommendations and approaches included in the Guidance, and also cuts across all charge questions, it must be addressed.

Key recommendations to increase the usability of the Guidance and reduce the likelihood of misuse

9. EPA should consider modifying the steps that provide the framework of the Guidance. The Committee suggests that the steps in the framework should be more specific and descriptive. An example is illustrated in Figure 1 of this advisory report. Two important aspects of the example in Figure 1 currently are missing from the Guidance: problem formulation/goal development and conceptual model development should be the first steps in the process, and the framework should contain an explicit step to determine whether the stressor-response relationship is appropriate.

10. EPA should revise the Guidance to include more detailed and descriptive information on

the use of the statistical methods discussed in the document. In addition, EPA should provide additional support to help users meet the technical demands of the methods. The Committee finds that that the current draft of the Guidance is written for a user with considerable statistical expertise that may or may not be possessed by state water agencies. This potential mismatch has two serious potential consequences. First, the Guidance will not be helpful if it cannot be easily used by state/tribal water scientists, and second, the recommended methods could be misused and/or misapplied if not sufficiently understood by the user. As a corollary, the Guidance could specify the level of expertise needed by potential users. Correctly identifying the level of expertise of the anticipated users and providing detailed and descriptive information for them is perhaps the most critical step in the continued development and refinement of the Guidance. As part of this process, EPA needs to outline a relatively straightforward process that the users can follow to employ the methods described, and provide technical support for their use.

11. In the Guidance, EPA should more clearly express the caveats and limitations of the

approaches presented. In this regard, the following issues are of greatest concern to the Committee: a) The approaches presented in the Guidance are correlative and do not demonstrate causation. b) Many water quality problems are site-specific and confounding variables likely exist. c) As further discussed in the responses to charge questions 2, 3 and 5, there are limitations associated with the retrospective approaches that are the primary focus of the Guidance, and also shortcomings associated with the multivariate techniques presented in the document. In particular, EPA should better

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identify potential confounding variables and other latent variables that may affect the response.

12. The Guidance should be revised to include additional information (i.e., technical

guidance) and more examples showing when and how to use different approaches presented in the document, the advantages and limitations of each approach, the underlying assumptions and data requirements, appropriate interpretations of statistical results, and how to best parameterize the statistical models. This “how-to” information could take a number of forms, including keys, inset boxes, and appendices. Users must be given additional information that provides a clear understanding of why and under which conditions they should consider any particular approach. Related to this, the Committee recommends that the Guidance contain additional examples of the methods described in the document. Specific topics that might be included in this technical guidance include: how to modify the approaches in order to derive site-specific criteria, how to identify thresholds, use of weight-of-evidence approaches, and how to handle censored values. EPA also could include an appendix that lists other sources of assistance (e.g., Regional Technical Assistance Groups [RTAGs]), and methodological resources). Organization of the document and current section headings also could more clearly identify the steps involved in the suggested empirical approaches. It would also be helpful to incorporate case studies that apply data sets typical of what most states have. These case studies could highlight decision points in the process of criteria derivation. The use of a single case study across all the various approaches suggested in the document would be particularly helpful.

13. The document should better address data requirements (including data acquisition and

data quality requirements). Without providing guidelines on data requirements, the potential for applying techniques to inappropriate or inadequate data sets is great. The Committee recommends casting this discussion in terms of data quality objectives (DQOs) and therefore suggests the following process: 1) state the problem; 2) identify the decision; 3) identify inputs to the decision; 4) define the study boundaries; 5) develop a decision rule; 6) specify tolerable limits on decision errors; and 7) optimize the design for obtaining data.

3.2. Charge Question 2. Selecting stressor and response variables

Section 1 of the draft guidance document reviews how to select the variables that appropriately quantify the stressor (i.e., excess nutrients) and the response (e.g., chlorophyll a, dissolved oxygen, or a biological index). Please comment on whether the factors to consider described in Section 1 of the draft document are appropriate for selecting response variables that are sensitive to nutrients and related to measures of designated uses. Section 1 of the EPA Guidance reviews factors to consider when selecting stressor and response variables for empirical derivation of numeric nutrient criteria. The Committee finds that this section of the Guidance could be strengthened and recommends that EPA include additional material to address the points discussed below. Although the current version of the

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Guidance addresses some of these points, we recommend including additional examples and revisions to further develop various parts of the text as discussed below. Findings on selecting response variables • Although the Guidance states that response variables should be coupled to designated uses,

the Committee finds that this point needs additional elaboration. Some response variables described in the Guidance are clearly related to designated uses (e.g., DO) but the linkage of other responses to designated uses is less obvious or not as well supported scientifically (e.g., macroinvertebrate species richness). Despite the importance of DO and the fact that a large number of waterbodies are impaired due to low DO concentrations, none of the examples in the Guidance include DO as a response variable. This is a significant omission that needs correcting. The Committee notes that appropriate response variables are also highly ecosystem specific. For example, chlorophyll concentrations are often more clearly related to designated uses for lakes than streams. While response variables for single taxa (e.g., salmon) may be tightly related to designated use, multimetric variables (macroinvertebrate indices, index of biotic integrity [IBI]) may be more powerful for integrating the response to nutrients at the community or ecosystem level. The Guidance would be strengthened by including more discussion relating ecosystem type and potential response variables to the designated uses (a table with some accompanying text might be an effective way to do this). [See the response to Charge Questions 3, 5, and 7 for additional discussion.]

• Conceptual model development should be required and should be incorporated early in the

process of criteria development (see Figure 1 of this advisory report). Conceptual models are an important component in selection of response variables. Any stressor-response relationship used in criteria development must have ecological relevance (based on ecological understanding of the system) that can be readily explained and defended as discussed in step two in the Guidance. Conceptual models based on past empirical and experimental studies are important for identifying the mechanisms responsible for responses and effectively communicating this linkage. In the framework suggested by the Committee (Figure 1), developing the conceptual model is the second step in the process. [See the responses to Charge Questions 4 and 6 for additional discussion.]

• The Guidance would be strengthened considerably by presentation of examples illustrating a

strong nutrient-response relationship and, as previously mentioned, clear linkage of the response variable to a designated use. It is important to clearly present the rationale for such linkage. Some of the examples in the Guidance illustrate relationships with very low R2 and response variables that are not clearly related to designated use. [See the responses to Charge Questions 3, 5, 6, and 7 for additional discussion.]

• In the Guidance, further discussion of potential response variables appropriate for nutrient

effects on detritus-based systems is warranted (e.g., how macroinvertebrate populations dependent on detritus may respond). The Guidance focuses on nutrient-response relationships driven by autotrophic processes (nutrients directly control algal growth, excessive amounts of which impair systems through indirect effects on DO, food web

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changes, and aesthetics). However, nutrients can also directly control heterotrophic microbes (bacteria, fungi) and indirectly control decomposition of organic matter. Excessive nutrient levels could produce large microbial growths or alter food webs in detritus-based ecosystems (e.g., many streams). Studies in the literature are cited, but examples using relevant response variables (e.g., shredder macroinvertebrate biomass, leaf breakdown rate) would be useful.

Findings on stressor and related variables • In the Guidance, more discussion is needed to outline and provide advice on the rationale for

selecting variables that should be included in data collection to allow: 1) classification/stratification of data prior to evaluation of stressor-response relationships (e.g., development of different criteria for different strata of systems); and 2) use of multivariate approaches to separate the influence of nutrients from other stressors (e.g., sediments, light regime, toxics). Stratification/classification is a particularly important issue for defining nutrient stressor-response relationships for streams where other factors can impose significant constraints on the effects of excess nutrients on designated uses. For example, nutrient-chlorophyll relationships may not be observed in highly shaded (forested) streams, but may be significant in open-canopy streams. Similarly, nutrient-chlorophyll relationships may be weak in high gradient streams but much stronger in low-gradient streams. For lakes, nutrient-chlorophyll relationships may be much different for highly-colored (high dissolved organic carbon [DOC]) versus clear (low DOC) systems. [See the responses to Charge Questions 3 and 5 for additional discussion.]

• Single variable stressor-response relationships (e.g., those derived using the simple linear

regression approach discussed in the Guidance) that explain a substantial amount of variation are likely to be uncommon for most aquatic ecosystems (in particular, streams). Multivariate approaches (multiple regression, structural equation modeling [SEM], etc.) may be needed to identify nutrient effects. These approaches require data on other potential stressors or constraining variables. Multivariate approaches may also be useful early in the analysis to determine whether nutrient effects are significant relative to other stressors and constraints and whether/how to pursue the nutrient effects using simple univariate regressions, perhaps after stratification of systems. [See the response to Charge Question 5 for additional discussion.]

• The Guidance focuses primarily on TN and TP as the primary nutrient stressor variables. In

systems where inorganic nutrients are the dominant form, some consideration should be given to inorganic N and inorganic P. It is easier to measure the inorganic forms of N and P and more and/or better data may be available for these forms. This is particularly true for ammonium and nitrate versus TN, but perhaps less so for P.

• In many regions N and P are often co-limiting to plants and microbes and stressor-response

relationships based on only one nutrient are weak. Nevertheless, nutrients (N and P) may be the primary factor controlling productivity/biomass. There have been several recent papers arguing for management of N and P in combination rather than singularly (Lewis and Wurtsbaugh, 2008; Conley et al., 2009; Paerl, 2009). This would suggest development of

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multivariate stressor-response relationships (e.g., multiple regression) that include both N and P as independent variables.

• A basic conceptual problem concerning selection of nutrient concentrations as stressor

variables (as illustrated in the Guidance) is that nutrient concentrations directly control only point-in-time, point-in-space kinetics, not peak or standing stock plant biomass. Plant biomass is driven by nutrient supply rates (i.e., nutrient mass loads). Ambient nutrient concentrations are not necessarily good surrogates for nutrient mass loads. Relationships between nutrient mass loads and ambient nutrient concentrations are highly system-specific and depend on many factors including inflows, hydrology, bathymetry, sediment-water exchanges and chemical-biological processes. Consequently, there may be many systems for which nutrient concentrations will not be appropriate stressor variables. For such systems it may be more appropriate, and scientifically defensible, to use site-specific mechanistic models incorporating loading to determine the nutrient controls required to attain designated uses.

Findings on temporal/spatial aspects of data • The Guidance provides little discussion regarding the temporal/spatial aspects of data needed

to develop relevant stressor-response relationships. For example, the document could be strengthened by providing additional material to address the following questions. “Under what conditions might the use of mean/median or maximum/minimum values of stressor and response variables be more appropriate than discrete instantaneous measurements?” “Are there instances when the use of temporally out-of-phase stressor and response data are most appropriate (e.g., the widely recognized relationship between spring nutrient concentration and summer maximum chlorophyll concentration in lakes)?” “How can time series or longitudinal data in specific systems be used to develop more generalized stressor-response relationships?” Although such guidance may be covered in the various system specific technical manuals (U.S. EPA, 2000a, 2000b, 2001), a summary/synthesis of the major points of these earlier documents should be included in the empirical approaches document.

• The Guidance could be strengthened by including a discussion of the importance of

considering “data bias” in interpreting the stressor-response relationships. This discussion should focus on how “data bias” (i.e., limits on data representativeness) might affect predictive performance and uncertainty in stressor-response relationships. Uncertainty imposed by model assumptions should also be discussed. Specifically, additional guidance is needed with regard to interpretation of data from particular environments (e.g., a set of lake data from a particular region) and its appropriateness (or lack thereof) for describing conditions more broadly. It would be helpful to include in the Guidance examples illustrating databases that would be "ideal" or appropriate for each empirical model presented. For example, information could be provided to indicate whether a conceptual model for considering nutrient criteria might be best approached using: seasonal data; data from shaded versus unshaded streams; data from wadeable streams versus big rivers; and/or long versus short term averages of data describing the stressor or the response. [See the response to Charge Question 6 for additional discussion.]

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• It would be useful to include in the Guidance some discussion of how nutrient recycling and other feedbacks influence stressor-response relationships. For example, the Guidance could be strengthened by addressing the following questions. “How does recycling contribute to variability and uncertainty in stressor-response relationships?” “Are there variables that can be used in stressor-response relationships to account for recycling?”

Key recommendations concerning selection of variables to appropriately quantify the stressor and response The Committee provides the following key recommendations to address the findings above and strengthen Section 1 of the Guidance. 1. The Guidance should be revised to elaborate upon the coupling of response variables to

designated uses and the importance of ecological relevance of the stressor-response relationship. Examples should be included to further illustrate this important point. The examples should show strong nutrient-response relationships. The Guidance should be revised to include at least one example for DO as a response variable. Ideally, each method should include an example for streams/rivers and an example for lakes. If empirical stressor-response relationships are not appropriate or workable for DO in lakes, then the Guidance should state this specifically and recommend other approaches, for example, site-specific mechanistic models. There are a large number of waterbodies that are impaired by low DO and the draft Guidance is silent on this important nutrient-related problem.

2. The Guidance should be revised to include discussion of potential response variables

appropriate for assessing nutrient effects on detritus-based systems. 3. The Guidance should be revised to include more discussion and advice concerning selection

of variables and data needed to allow:

− Classification/stratification of data prior to evaluation of stressor-response relationships (e.g., development of different criteria for different strata of systems).

− Use of multivariate approaches to separate the influence of nutrients from other

stressors (e.g., sediments, light regime, toxics). In general, the importance of multivariate stressor-response relationships and tools for multivariate approaches should be further discussed in the final Guidance.

4. In systems where inorganic nutrients are the dominant form, the Guidance should

recommend considering inorganic N and P as nutrient stressor variables. 5. The basic conceptual problem associated with selecting nutrient concentrations as stressor

variables should be addressed in the Guidance (i.e., nutrient concentrations directly control only point-in-time, point-in-space kinetics, not peak or standing stock plant biomass).

6. The Guidance should be revised to include discussion of:

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− The temporal/spatial aspects of data needed to develop relevant stressor-response relationships. (e.g., are there instances when the use of temporally out-of-phase stressor and response data are most appropriate?)

− How “data bias” (e.g., data from different types of systems) might affect predictive

performance and uncertainty in stressor-response relationships.

− How nutrient recycling and other feedbacks influence stressor-response relationships. 3.3. Charge Question 3. Approaches to demonstrate the distribution of and relationships among variables Section 1 outlines methods to visualize available data. Please comment on the effectiveness of the following approaches described in the document (listed below) to demonstrate the distribution of and relationships among variables.

a) Basic data visualization techniques b) Maps c) Conditional probability d) Classifications

Section 1 of EPA’s Guidance discusses exploratory data analysis and presents several methods for demonstrating the distribution of and relationships among variables. Several basic plotting techniques are presented in Subsections 1.2 – 1.6 of the document. This is followed by a description of conditional probability analysis (a statistical approach for summarizing how changes in nutrient concentrations are associated with the probability of waterbodies attaining their designated uses). The Committee was asked to comment on the effectiveness of the methods presented in this section of the Guidance. The Committee notes that the response to Charge Question 3 necessarily overlaps with responses to other charge questions, particularly those that focus on identifying stressor-response relationships and conducting statistical analyses. We emphasize that visualization of data is of secondary importance if the data and statistical methods being visualized are inappropriate, because the visualization in itself suggests authenticity. Furthermore, the exploratory data analysis, including visualization, should be conducted prior to inferential statistical analyses of potential stressors and responses. The objectives of exploratory data analysis should be to better understand the system of interest and to maximize the accuracy and minimize the variability of the subsequent stressor-response relationships. The Committee finds that discussion of exploratory data analysis in the Guidance would be more effective if the document were reorganized and expanded to address the following points. • The Guidance would be more effective if exploratory data analysis were included by itself in

a separate section of the document following a major section on problem formulation (corresponding to the Framework in Figure 1 of this advisory report).

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• Additional methods for exploratory data analysis should be described in the Guidance. These additional methods should include: the use of summary statistics; time series plots at fixed points in space; longitudinal plots at fixed points in time; bubble plots; Pearson and other types of non-parametric correlation analyses; and maps that show temporal (monthly, seasonal, inter-annual) as well as spatial patterns.

• Clear guidance is needed for identifying when and how the statistical methods and

visualization techniques should be used. The strengths and limitations of the methods should also be identified. It would be useful to show several case examples that range from state-wide to local and data-rich to data-poor, and exemplify different types of aquatic ecosystems (e.g., headwater streams, large rivers, lakes and estuaries). Examples should note the strengths, limitations, assumptions and uncertainties that must be considered when using the methods to explore and visualize the data, and subsequently develop the criteria. These examples should demonstrate how nutrients can be identified as significant stressors when multiple stressors and habitat factors are present and may affect the resident communities. [See the response to Charge Question 5 for additional discussion.]

• The discussion in Subsection 1.6 of the Guidance (examination of stressor-response

distributions across different classes, e.g., ecoregions) should be expanded. The subsection should discuss additional data analysis and contain examples for different spatial classifications (e.g., ecoregions, states, watersheds, systems of interest), different waterbody types (e.g., streams, rivers, lakes, estuaries) and other important physical and chemical characteristics that could affect the applicability of the nutrient criteria. [See the response to Charge Questions 2 and 5 for additional discussion.]

• The examples provided in the Guidance generally do not demonstrate a strong nutrient

stressor linkage to beneficial use impairment. The stream examples show very weak correlations that have high levels of uncertainty and the examples lump data from distinctly different ecosystems where multiple factors in addition to nutrients will contribute to biotic responses. [See the responses to Charge Questions 5, 6, and 7 for additional discussion.]

• All of the statistical and visualization methods discussed in Subsections 1.2 -1.6 of the

Guidance can be effective but they should be presented and used in a combined, weight-of-evidence approach because they each involve exploring the data in different ways. [See the responses to Charge Questions 1, 3, 5, and 7 for additional discussion of weight-of-evidence.]

• The Committee emphasizes the importance of choosing the biological endpoints (i.e.,

response variables) that respond specifically to nutrients. We note that responses of benthic indices can be related to many types of stress. We question why periphyton would not be a better receptor to measure.

• The Committee suggests that field-based species sensitivity distributions (SSDs) may be

useful for nutrient criteria development. We note that SSDs have been used effectively in recent publications for establishing guidelines (or refuting them) for contaminants, temperature, and salinity (Hickey, 2008; Leung et al., 2005).

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The Committee also notes the following technical edits and corrections needed in the Guidance.

a. Clarify that macroinvertebrate richness is plotted in examples in Subsection 1.3. b. The Guidance (p. 7) states that “variables are equally weighted” yet only one variable is

plotted in each box plot. A better statement would be: “One limitation for box plots is that all of the samples are equally weighted.”

c. Explain probability survey design and data smoothers or provide references. d. Figure 7 is very confusing to those unfamiliar with scatterplot matrices; some additional

explanation regarding how to “read” the horizontal and vertical axes of each graph in the matrix would help. Suggested wording: “For each scatterplot, its x-axis is the variable stated in the column in which the graph appears. Its y-axis is the variable stated in the row in which the graph appears.”

Key recommendations regarding methods for demonstrating the distribution of and relationships among variables As discussed above, the Committee recommends that EPA restructure and revise the Guidance to strengthen discussion of methods for demonstrating the distribution of and relationships among variables. The following key recommendations are provided.

1. The Committee recommends that the Guidance be clarified by reframing Subsections 1.2 through 1.6 as a separate major section on exploratory data analysis. These subsections should follow another separate major section on problem formulation (see Figure 1 of this advisory report), and the material in Subsection 1.1 (selecting stressor and response variables) should be moved to later section(s) of the document.

2. The Guidance should be revised to include additional methods for exploratory data

analysis. These additional methods should include: the use of summary statistics; time series plots at fixed points in space; longitudinal plots at fixed points in time; bubble plots; Pearson and non-parametric correlation analyses; and maps that show temporal (monthly, seasonal, inter-annual) as well as spatial patterns.

3. Subsection 1.6 of the Guidance should be expanded to include additional examples of

different spatial classifications. Specifically, the classification subsection of the Guidance (Subsection 1.6) should be expanded with data analysis examples for different spatial classifications (e.g., ecoregions, states, watersheds, systems of interest), different waterbody types (e.g., streams, rivers, lakes, estuaries) and other important characteristics that will affect the applicability of the nutrient criteria. These characteristics could include, but should not be limited to, stream order, flow, velocity, canopy cover, dissolved oxygen, reference condition trophic status, channel width and depth.

4. The Guidance should be revised to clarify, early in the document, that there are many

useful statistical and visualization methods that are not presented and which may be useful. The more common/well accepted methods could be listed in a table with references. It may also be useful to mention methods that are inappropriate. With each

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method the associated strengths, limitations, assumptions and uncertainties should be noted to better guide the user.

5. Several case examples of exploratory data analysis should be included in the Guidance.

These examples should illustrate cases ranging from national to local in scope, and data-rich to data-poor, with guidance on how best to explore and visualize the data.

6. The Guidance should contain additional information concerning statistical assumptions

associated with various methods. Some guidance should be presented, as in other EPA documents (e.g., U.S. EPA, 2006a; U.S. EPA, 2006b), to address the importance of ensuring that statistical assumptions are not violated and that adequately trained statisticians, in concert with experienced aquatic ecologists and environmental modelers, evaluate the data. An example could be included to show how overly simplistic statistical analysis could not identify a relationship that became evident after complex/advanced analysis. The Committee notes that CProb 1.0, EPA’s tool for conditional probability analysis was developed with the R language and environment for statistical computing. The Committee questions whether R, an open-source freeware product that is becoming very popular, is completely acceptable, in the sense that there are many R-macros in use that remain to be properly “vetted.” There should be some level of assurance that the recommended R-products have been properly vetted (e.g., CProb 1.0).

7. The Guidance should contain a quantitatively based weight-of-evidence framework using

multiple methods and then combining them into figures and tables for visualization. Multiple statistical methods on one data set do not equate to a reasonable weight-of-evidence that significantly reduces uncertainty. Rather, the weight-of-evidence should involve different assessment methods (e.g., different data sets, different biological endpoints, measures of habitat, etc.). This premise has been embraced by other EPA programs and the scientific community (Adams, 2003; Burton et al. 2002; Chapman, 2007; Chapman et al., 2002; Collier, 2003; Cormier et al., 2010; Fox, 1991; Linder et al., 2010; Linkov et al., 2009; Suter et al., 2002; Suter et al., 2010; U.S. EPA, 2000c; Weed, 2005; Wickwire and Menzie, 2010).

8. The Guidance should contain a discussion of how the stressor/response variables to be

used are linked to one another in space and time for further analysis. There is no mention of this in Subsection 1.1 of the Guidance. The Committee questions whether it should be assumed that stressor/response measurements always occur at the exact same time and locations. It is also important to ensure that high flow events have been measured. It is well established that most nutrient loading occurs during high flows. Therefore, the influence of seasonality and smaller-scale temporal dynamics (e.g., storm events) and the importance of linking stressor and response variables with these factors should be at least noted in the Guidance.

9. The Guidance should discuss the use of modeled data (e.g., land use characterization,

hydrology, surface runoff, receiving water quality) for estimating nutrient concentrations/exposures. The pros and cons associated with the use of such data should

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be briefly mentioned. There are a number of EPA-supported models that have been widely used and documented in recent years (e.g., HSPF, BASINS, QUAL2K, WASP, AQUATOX, and Chesapeake Bay WQSTM). Some of these are integrated watershed models designed to represent inflows and non-point source runoff loads. Typically, they are used as a “loading engine” for a receiving water quality model. Receiving water quality models describe load-response relationships for exposures (ambient nutrient concentrations) and effects (e.g., plant biomass, zooplankton, dissolved oxygen), and response parameters that represent use impairment. Some receiving water quality models can address multiple stressors. For example, they can include N, P and silicon as potentially limiting nutrients, sediment (suspended solids) and its influence on underwater light attenuation, incident solar radiation, temperature, and grazing pressure. It is possible to use these water quality models to describe exposure (in terms of ambient nutrient concentrations) but in the absence of empirical data, this would not be scientifically defensible.

10. The Committee recommends that EPA re-evaluate many of the figures in the Guidance

(e.g., 4-8, 13-16, 21, 25, and 26). These figures show widely varying data that demonstrate weak relationships.

11. The Committee recommends that the Guidance be revised to clearly indicate the

statistical assumptions and uncertainties that should be taken into consideration when using methods described in the document. Some of the methods are complex and their descriptions lack transparency. Guidance should be provided to ensure that states and other users have an understanding of the data requirements and limitations, the associated statistical assumptions, and uncertainties.

12. The document should contain a discussion of ways to examine the independent and

interactive effects of the variables to be considered in deriving numeric nutrient criteria (i.e., provide a menu of options to examine independent and interactive effects). Statistically, there are several well known ways to address additional contributing variables, such as total suspended solids (TSS). One way would be to use a multiple regression model or analysis of covariance (ANCOVA). This would be a valuable approach, as the additional variables are to be treated as continuous variables, and interaction terms could be added to see if the effects of TN/TP were dependent on levels of TSS, which would be expected, particularly for TP. If one treats the additional variables as factors then an analysis of covariance (ANCOVA) model would be most appropriate. For example, if there were a TSS threshold of interest, a relationship could be established between an invertebrate endpoint and nutrient levels above and below a critical TSS threshold. This would allow one to examine independent and interactive effects.

13. The Guidance should mention the potential benefits of using proxy variables in an initial

approach for exploratory analysis of data trends. For example, variable data sets that are easier and more practical to obtain, such as more generic point/nonpoint source loadings or commonly sampled stressor/response variables, might be used as proxy variables for exploratory analysis of data trends. This is briefly mentioned in Subsection 3.1 of the

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Guidance (auxiliary model), but such an approach could also be useful for selecting stressor/response variables early in the process (Section 1).

3.4. Charge Question 4. Methods for assessing the strength of the cause-effect relationship Section 2 of the draft guidance document describes methods for assessing the strength of the cause-effect relationship represented in the stressor-response linkage. Please comment on whether the draft guidance document adequately describes how conceptual models, existing literature, and empirical models can be used to assess how changes in nutrient concentration are likely to cause changes in the chosen response variable. Section 2 of the Guidance provides a summary of how the strength of tentative stressor-response pairings from step 1 can be assessed. Certainly, as indicated in the Guidance, conceptual models and existing literature can be used to support relationships that will be explored with the statistical analysis that follows. At this stage of the analysis, stressor-response relationships for which there is no reasonable conceptual model or literature to explain the underlying mechanisms would be of limited value for setting criteria. Such relationships should be set aside. The Committee finds that the Guidance should be improved by incorporating revisions to address the following points. • Section 2 of the Guidance does not address the strength of the stressor-response relationship,

but rather support for the stressor-response relationship that is to be explored statistically. “Support” for the stressor-response relationship, rather than “strength” of the relationship, would be a better term to use in this section of the Guidance, because strength refers to the “tightness” of the statistical association between stressor and response. Use of the term “support” would, therefore, be less confusing to the user.

• It is not clear why information from mechanistic models was not included in Section 2 of the Guidance. Because mechanistic models can integrate information on the interactions of major ecosystem processes to derive quantitative estimates of effects, they too should be discussed as a possible way of supporting the stressor-response relationship. [See the response to Charge Question 1 for additional discussion.]

• Additional discussion of conceptual model selection (with specific examples) would be

helpful. There are many ways to select a conceptual model and various model selection criteria that could be applied. An expanded discussion of these issues could help provide further background for a user of the document. Specific examples could be followed in later sections with discussion of statistical approaches to analyze the strength of the potential cause-effect relationships. In other words, EPA could provide an example from beginning to end that a user could follow from step to step. [See the response to Charge Questions 1, 2, and 6 for additional discussion.]

• One important aspect of finding support for stressor-response pairings is that without formal

training and practical experience in the sciences, especially biological and ecological

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disciplines, it is difficult to fully understand the complex relationships that may be identified. The Guidance should state the level of statistical and ecological expertise needed to use the document. [See the response to Charge Question 1 for additional discussion.]

• Structural equation modeling (SEM) and Propensity Score Analysis (PSA) are techniques

that can be used to organize and evaluate relationships between nutrients and response variables when extensive data are available. SEM might be more useful in tracing pathways (it is also called path analysis) of cascades that are initiated by excess nutrients than in defining criteria candidates. A relevant example of SEM is really needed in the Guidance if this approach is to be considered by users. PSA, on the other hand, seems to be useful for sorting out groups that share covariates but may have unique nutrient characteristics. Such sorting could lead to a clearer understanding of how nutrients function amid multiple covariates. The example of PSA in the Guidance appendix is helpful, but further explanation of how to interpret the results of the analysis is needed. An analysis such as PSA might really belong in a later section of the document, as it is used for data analysis rather than supporting potential relationships.

• A reasonable way to assess nutrient effects might be to split data sets (through PSA, principal

components analysis, and/or cluster analysis) to enable a system-specific analysis (or analysis of a small groups of sites). Given the many factors that affect streams and rivers, system-specific analysis really provides an assessment of whether altering nutrient concentrations would have the desired effect on the biotic communities present. Possible factors to consider in splitting data for streams and rivers might include, for example, stream order, flow, velocity, canopy cover, dissolved oxygen, bottom type, channel width, habitat, and depth. [See the responses to Charge Questions 2 and 5 for additional discussion.]

• Experimental validation of causal relationships between nutrient and response variables

should be approached with caution. The final method discussed on page 17 of the Guidance is experimental validation of causal relationships between selected nutrients and response variables. The Committee notes that this approach could be helpful in situ and there are examples of this (Benstead et al., 2009; Cross et al., 2006; Cross et al., 2007; Greenwood et al., 2007; Peterson et al., 1985; Slavik et al., 2004; Stockner and Shortreed, 1978), but mesocosm or laboratory experiments are of limited use in validating causal relationships between nutrient and response variables. For example, Hill and Fanta (2008) and Hill et al. (2009) showed in Oak Ridge National Laboratory artificial streams how P and light interact. This type of work provides fundamental data on how stream algae respond to P and light, and supports basic conceptual models of this relationship. These and previous studies have shown that, under controlled conditions it takes very little P to maximize algal growth given high light and this fundamental relationship could be applied to any stream in the U.S. However, the relationship is often not observed in data sets because other factors such as bottom substrate, turbidity, canopy cover, hydrology, or depth limit algal production. Therefore, caution must be used in applying a relationship from a subset of data to all data from systems that do not have the same or similar conditions. [See the response to Charge Question 6 for additional discussion of model validation.]

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Key recommendations concerning methods for assessing the strength of the cause-effect relationship represented in the stressor-response linkage In light of the comments and findings discussed above, the Committee provides the following key recommendations to improve Section 2 of the guidance.

1. Section 2 of the Guidance would be more appropriately titled “Assessing Support for the Potential Cause-Effect Relationship.”

2. Mechanistic models should be discussed in the Guidance as one way of supporting the

stressor-response relationship.

3. The discussion of conceptual models should be expanded to address various criteria for model selection, and additional examples should be included.

4. The level of statistical and ecological expertise needed to use the Guidance should be

stated.

5. Structural Equation Modeling (SEM), offered as an alternative model for exploring nutrient-ecosystem response, should be more fully explained with clear examples.

6. Further explanation of how to interpret the results of propensity score analysis (and

additional examples) should be included in the Guidance.

7. Experimental validation of causal relationships between nutrient and response variables should be approached with caution because a number of factors can affect the response of a system to nutrient enrichment.

3.5. Charge Question 5. Statistical methods to analyze the data Section 3 of the draft guidance document outlines statistical methods to analyze the data to estimate stressor-response relationships. Please comment on the appropriateness of the methods outlined in the document (listed below) for describing stressor-response relationships associated with nutrient pollution. What approaches would you recommend that could effectively address indirect pathways of adverse effects? What recommendations do you have to address the effects of confounding variables and uncertainty in the estimated relationships?

a) Simple linear regression b) Quantile regression c) Logistic regression d) Multiple linear regression e) Non-parametric changepoint analysis f) Discontinuous regression models

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The Committee notes that EPA’s draft Guidance appropriately states that numeric nutrient criteria should be based on predictive stressor-response relationships so that changes in the level of stressor variables will result in predictable ecosystem responses. However, based on examples presented in the draft document and elsewhere, a large degree of unexplained variation can be encountered when attempting to use empirical stressor-response approaches to establish criteria. The final Guidance needs to clearly indicate that such unexplained variation can present a significant problem to this method of developing numeric criteria. Further, the final document should emphasize that statistical associations may not be biologically relevant and do not prove cause and effect. However, when properly determined, statistical associations can be very useful in supporting a cause and effect argument as part of a weight-of-evidence approach to criteria development. To this end, the final document should provide greater detail on the implementation of statistical procedures and development of other supporting information to minimize the degree of unexplained variation and maximize the potential for the empirical stressor-response approach to result in useful numeric nutrient criteria. EPA should also provide guidance on the strength of stressor-response relationships needed to support criteria development using an empirical stressor-response approach. Further, because nutrients are essential elements, the application of statistical methods must consider both nutrient deficiency and excess. Clear links between response variables and designated uses are needed to ensure that both of these possible impairment types are addressed. The Committee provides the following findings and comments concerning the appropriateness of statistical methods in the Guidance, approaches to address indirect pathways of adverse effects, and ways to address the effects of confounding variables and uncertainty in the estimated relationships. Findings on appropriateness of listed statistical methods • The Guidance represents a substantial step forward in describing statistical methods that can

be used in deriving nutrient criteria based on stressor-response relationships, but more information is needed to describe supporting analyses necessary for application of the methods. The six methods identified in the Guidance generally provide appropriate options for describing stressor-response relationships that may be sufficiently predictive to support setting numeric nutrient criteria. As many examples in the draft document illustrate, there is likely to be considerable variability in stressor-response nutrient relationships and, thus, in the predicted outcome or response to both target setting and response to mitigation efforts. Therefore, the document must provide more information on the supporting analyses needed for each method to correctly identify useful predictive relationships, and acknowledge that the use of these statistical methods alone cannot provide sufficient evidence of a cause-effect relationship. [See the response to Charge Question 1 for additional discussion.]

• The use of non-parametric change point analysis and discontinuous regression analysis must

be associated with biological significance and the designated uses to be protected by numeric nutrient criteria. As stated previously, response variables must be associated with designated uses in all cases. This has implications for the use of non-parametric change point analysis (nCPA) and discontinuous regression in criteria development. The Guidance indicates that, because these procedures may identify breakpoints in nutrient responses that can serve as criteria thresholds, the methods may be used when designated use thresholds are not

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available. However, although these methods may be able to identify and characterize breakpoints, such breakpoints may not necessarily have any biological significance, nor will they necessarily be related to designated uses that are to be protected by numeric nutrient criteria. Use of these methods must be associated with designated uses. [See the responses to Charge Questions 1, 3, 6, and 7 for additional discussion of the importance of biological significance and linkages to designated uses.]

• The statistical methods in the Guidance require careful consideration of confounding

variables before being used as predictive tools. For example, the appropriate use of bivariate regression methods requires additional efforts through classification or other means to minimize the influence of other potential causal variables so that an acceptable level of confidence in the predictive power of the relationship can be achieved. Without such information, nutrient criteria developed using bivariate methods may be highly inaccurate. Multiple linear regression is an appropriate way to incorporate covariates into a single analysis, although predictive power using this procedure must also be evaluated carefully. [See the responses to Charge Questions 1, 2, 3, and 4 for additional discussion.]

• As previously noted, because plant biomass is driven by nutrient supply rates (mass loads), a

potential conceptual problem exists with the selection of nutrient concentration (often used in the Guidance) as a stressor variable. This problem illustrates the importance of careful characterization of confounding variables. Nutrient concentrations control only point-in-time, point-in-space kinetic rates, not peak or standing stock plant biomass. Plant biomass is driven by nutrient supply rates (mass loads). Furthermore, nutrient concentrations may not be direct surrogates for nutrient mass loads. Relationships between nutrient mass loads and ambient nutrient concentrations are highly system-specific and depend on many factors. Consequently, in some circumstances, statistical methods alone will not adequately account for the influence of confounding variables and reduce uncertainties. In other words, the Committee anticipates situations in which stressor-response statistical analysis may not lead to a scientifically justified endpoint. [See the responses to Charge Questions 1 and 2 for additional discussion.]

• In order to be scientifically defensible, empirical methods must take into consideration the

influence of other variables. On page 22 of the Guidance, the authors acknowledge that factors co-varying with TP concentrations may explain a portion of the 61% of the variation in log chlorophyll a concentrations apparently attributable to log TP concentrations. This presents a critical challenge in the use of empirical methods as a means of establishing numeric nutrient criteria because it means that controlling TP concentrations may have no potential to yield reductions in chlorophyll a concentrations. Thus, in order to be scientifically defensible, empirical methods must take into consideration the influence of other variables.

• It is important to discuss strength-of-relationship concerns and how results of empirical

approaches should be interpreted in the context of criteria development. Figure 13 on page 24 of the Guidance provides an illustration of the challenges facing the users of simple linear regression (SLR) and other empirical approaches. In this case, total macroinvertebrate species richness was regressed against total N concentrations obtained from EPA

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Environmental Monitoring and Assessment Program (EMAP) West Xeric Region streams. Overall, total species richness declines with increasing TN concentration in these stream data. Applying SLR to log-transformed data yields a statistically significant slope -3(log(TN)) at p<0.001. However, a large degree of scatter remains, as indicated by the R2 value of 0.19. A TN “candidate criterion” of 320 ug/L is obtained by finding the point of intersection of an assumed designated use total species richness threshold of 40 and the mean regression line log(TN) = ~ 2.5. Unfortunately, the points where the lower and upper 90% prediction interval lines cross a species richness threshold of 40 cover a TN concentration range from about log(TN) = 1.25 to log(TN) = 4 based on inspection of Figure 13. This corresponds to a TN concentration range of 16 ug/L to 10,000 ug/L. It is important to understand the management consequences of this considerable uncertainty. Also, the fact that the relationship in Figure 13 is both statistically significant (i.e., some trend is evident) and has a low R2 = 0.19 (much scatter also exists) presents an opportunity to discuss strength-of-relationship concerns and how such results should be interpreted in the context of criteria development. [See the responses to Charge Questions 1, 2, and 6 for additional discussion.]

• As previously discussed, relationships for streams may be more complex than for lakes and

must account for multiple stressors/conditions and/or stream ‘types’ or conditions, and then be applied appropriately. For example, a stratified approach that considers attributes known to be important for a particular environment (lake, stream, estuary) such as canopy, habitat, etc., should be considered. It is also important to deal with both N and P simultaneously and to consider inorganic N and dissolved P. An exercise in Section 3 of the Guidance illustrates the relationship between chlorophyll a and TP in lake water. This is perhaps the easiest and most well known example of stressor-response in natural waters, and specifically in lakes. This relationship is less certain in streams because they are more heterogeneous than lakes. The Guidance also inappropriately assumes that only nutrients affect taxa. The functionality of aquatic food chains is not solely dependent on one type of biota, sediment type, or single nutrient concentration. There are multiple stressors affecting receptors in a number of ways, over the landscape and watershed in question. Confounding variables are not sufficiently addressed in the Guidance. As previously discussed, approaches that address multiple factors, such as a stratified (or hierarchical) approach that considers other attributes known to be important (e.g., canopy, habitat, multiple nutrients) should be considered. [See the responses to Charge Questions 1, 2, and 3 for additional discussion.]

• The Guidance could be improved by replacing many examples that provide low explanatory

power. Concerns include examples with very low R2 indicating low explanatory power and incomplete description of large uncertainty. These examples indicate that variables other than TP or TN have a greater impact on response, which implies that reducing TP or TN may not have the desired effect. Helpful examples could include: one with a response variable indirectly associated with a designated use; and one from a state where a Secchi depth is used as a criterion for water quality (otherwise Subsection 3.1, paragraph 2 sounds extremely vague). [See the responses to Charge Questions 1 and 3 for additional discussion.]

• Parametric (e.g., Pearson) and non-parametric (e.g., Spearman’s rank, Kendall’s tau)

correlation analyses can assist in identifying the influence of confounding variables, but these

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methods are not specifically mentioned in the Guidance. Both of these types of analyses would be helpful in exploratory data analysis.

• The Guidance lacks sufficient discussion of the importance of variable selection and data

characteristics to ensure useful implementation of the statistical procedures. In addition to its incomplete treatment of confounding variables, the Guidance lacks sufficient discussion of the importance of variable selection and data characteristics to ensure useful implementation of the statistical procedures. Many of the non-parametric procedures rely upon bootstrap procedures to obtain confidence intervals. This underscores the importance of using a probability sampling procedure. The implications of different sample sizes should also be more fully discussed. The Guidance states that an advantage of using quantile regression (QR) is that it can provide direct estimates of percentiles of a distribution of Y values at given X values, which may be better estimates of these values than provided by SLR when the assumptions of SLR are not met. Uncertainty associated with estimating extreme quantiles from "small" sample sizes is appropriately identified in the Guidance as a concern for QR. However, small sample size is likely to present considerable challenges to any nutrient criteria development approach, and the Guidance should provide a discussion of how the amount of data may affect the utility of empirical stressor-response approaches.

• In the Guidance, more information must be provided regarding regression assumptions,

limitations, and diagnostic procedures. Although the Guidance should not be expected to provide the same level of detail on the implementation of statistical procedures contained in a statistics textbook, more information must be provided regarding regression assumptions, limitations, and diagnostic procedures. The appropriateness of the regression methods will depend on the assumptions and use restrictions of each method. Although the document discusses many of the important assumptions, it would be helpful for this information to be clearly summarized in a table. The table could include headings for each method such as use, inherent assumptions, and specific remarks. In addition, the importance of regression diagnostic procedures should be emphasized. Examples and specific references to additional sources of information should be provided. This could include evaluating data with and without outliers or unusual values.

• More guidance is needed on the interpretation of results from the listed regression

procedures. For example, how does one decide whether the results of quantile regression are adequate for criterion development? In the discussion of logistic regression (p. 28, last paragraph), nothing is said about whether the coefficients in this analysis are significantly different from zero, or about the proportion of total deviance accounted for by the regression. For multiple linear regression (p. 31) a reference (e.g., Kutner et al., 2004) is needed for Akaike and the other methods listed in the third paragraph of the page.

• The role of, and options for, data transformations should receive considerably more

discussion in the Guidance. Data transformation may be appropriate in the development of stressor-response relationships using regression analysis, but this topic (including the associated back-transformation of slope estimates and confidence intervals to yield criteria) should be more carefully developed. In reading the document, one wonders when the log-transformation should be used to establish linear relationships or whether curvature that may

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be present in raw data (with no transformation) should be characterized. In addition, the document does not describe the range of data transformations that may be appropriate, instead focusing only on the log-transformation. For example, regarding the nCPA presented in Figure 24, would the analysis give the same result if it were based on TP data that were not log transformed? It is not clear in the Guidance when to apply a linear method to transformed data or a changepoint or discontinuous regression method to untransformed data. As a start, a table like Table 6.5, “Linearizing Transformations” in Weisberg (1985), p. 142 could be included in the Guidance, along with some explanation. Finally, "back-transformation" has the potential to introduce bias into the criterion value if done incorrectly, and this topic should be treated more completely to minimize that potential.

• The Guidance appropriately points out that regression relationships should generally not be

used to project conditions beyond the range of conditions used to develop the relationships. • The Guidance is silent on how and when the results of multiple statistical procedures may be

integrated to support numeric criteria as an alternative to selecting “the best” model in situations where a clearly preferred model does not emerge from the analysis. Rather than presenting the statistical techniques strictly as alternatives, the document could describe how these procedures can complement each other and provide a more robust picture of what an appropriate criterion should be. For example, a linear regression whose residuals appear to show the presence of curvature might also be evaluated with nCPA to evaluate the range of stressor values over which the curved response occurs. Model averaging (Burnham and Anderson, 2002) is recommended for use with multiple regression when slight changes in the data lead to different final models.

• The Guidance provides a limited list of the statistical methods that could be explored to yield

useful criteria. If a data set includes censored values, maximum likelihood estimation can provide an alternative to bivariate or multivariate linear regression that avoids the need to substitute values such as one-half the detection limit for nondetects. In addition, parametric multivariate methods including principal components analysis (PCA), discriminant function analysis, cluster analysis, and others may also provide a useful means of incorporating covariates in a stressor-response relationship. PCA may be used to describe a group of correlated variables through a single equation. A number of non-parametric linear regression approaches are also available, including the family of Kendall tests available from the U.S. Geological Survey (Helsel and Hirsch, 1992; Helsel et al., 2006)

• A key and an associated appendix of case studies should be included in the Guidance to

explain the appropriate use of statistical methods and inherent assumptions and uncertainties. Since choice of method(s) will depend on the nature of the data being modeled and on the underlying assumptions, it would be useful to include in the Guidance some kind of key giving an explanation of “which method to use when,” with the inherent required assumptions and uncertainties associated with each method. Better use of case studies (from lakes, streams, estuaries) in an appendix could help show “why one approach works in a particular situation and another does not.” One case study should estimate the stressor-response relationship when the data form a “wedge-shaped” scatterplot, a pattern commonly observed in nutrient stressor-response relationships.

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• Statistical rigor is essential to the development of scientifically defensible criteria. Simplistic

application of approaches in the Guidance can lead to stressor-response relationships with poor predictive power and result in inappropriate numeric nutrient criteria. Therefore, EPA will need to provide technical support and training to states for use of these statistical methods. As previously stated, the use of bivariate methods (including nCPA) must involve a careful examination of potentially confounding variables to develop support for a predictive relationship. In order to properly evaluate the predictive power of empirical stressor-response relationships, uncertainties associated with each method used must be identified and quantified. Simulated data sets designed to contain specific properties that may be encountered by users of the Guidance could help communicate how these statistical procedures behave over a variety of data set characteristics (e.g., a range of uncertainty in the regression slope).

• The need for statistical rigor applies to both the strength and the form of the relationship

among variables (i.e., evaluating the presence of curvature in a stressor-response relationship). The Guidance should describe the goal of data analysis as one of characterizing not only the strength of relationship but also its form, and the evidence supporting conclusions about both. This is particularly relevant when deciding to use nCPA or discontinuous regression to characterize a relationship. A more complete approach should be presented to test the hypothesis that a true data threshold exists.

• EPA should provide guidance on how the degree of relationship (indicated by R2, residuals

analysis, and other evidence) relates to establishing predictive stressor-response relationships. At a minimum, EPA should describe how to address the important question of “when is the evidence insufficient to support using a empirical stressor-response approach?” One suggestion is to better incorporate the EPA data quality objectives process into the Guidance (see U.S. EPA, 2009c).

Findings on indirect pathways • The Committee notes that, with respect to approaches used to address indirect pathways of

adverse effects, the Guidance currently does not contain a clear definition of the term “indirect pathway.” One definition follows in part from the caption of Figure 10 in the Guidance:

“Simplified diagram illustrating the causal pathway between nutrients and aquatic life use impacts. Nutrients enrich both plant/algal as well as microbial assemblages, which lead to changes in the physical/chemical habitat and food quality of streams. These effects directly impact the insect and fish assemblages. The effects of nutrients are influenced by a number of other confounding factors as well, such as light, flow, and temperature.”

This description appropriately indicates that nutrient concentrations directly impact plant/algal and microbial communities and indirectly impact insect and fish assemblages through impacts on plant/algal and microbial communities. As discussed previously, a challenge in using empirical approaches is establishing sufficient evidence to support

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conclusions of cause and effect so that relationships with adequate predictive power can be developed. The farther removed the response variables are from immediate responses of variations in nutrient concentrations, the more difficult it may be to demonstrate a useful degree of predictive power. Guidance on the acceptable degree of uncertainty, and/or the desired level of predictive power, may help users of the Guidance identify useful relationships whether or not pathways are direct or indirect. On the other hand, empirical methods alone are unlikely to effectively address indirect pathways of adverse effects. This requires appropriate conceptual and mechanistic models, adequate site-specific data, and experienced professional judgment.

Findings on confounding variables and uncertainty • As previously discussed, exploratory data analysis that includes classification of data by

similarities in confounding variables prior to the evaluation of stressor-response relationships may improve the predictive power of the relationships if sufficient data are available. Incorporation of confounding variables in a multiple regression is also appropriate. [See the responses to Charge Questions 1, 2, and 3 for additional discussion.]

• Because uncertainty in the appropriate criterion value cannot be eliminated, it is prudent to

evaluate the potential consequences of varying degrees of uncertainty in a stressor-response relationship on the resulting criteria and management objectives. This may be accomplished in part through the use of the EPA data quality objectives (DQO) process or a similar approach. [See the responses to Charge Questions 1, 3, 6, and 7 for additional discussion of evaluating uncertainty in the stressor-response relationship.]

• References should be provided to direct the reader to more information on regression

diagnostics including leverage statistics and information on influential points. This would assist the user in addressing uncertainties associated with these values. (One useful textbook is Kutner et al., 2004; there are many others.)

• The Guidance should emphasize the importance of careful pairing of potential stressor and

response variables. Uncertainty in a stressor-response relationship may be increased if incompatible data types are paired. For example, combining a seasonal average chlorophyll a concentration calculated from multiple samples with a TP concentration obtained from a single grab sample could introduce considerably more uncertainty than if both variables represent seasonal averages. There are places in the Guidance where measured values are presented without a clear description of the spatial or temporal components that the value represents (on p. 22, for example, 15 ug/L chlorophyll a is presented as a threshold between mesotrophic and eutrophic conditions without indicating the applicable averaging period). The Guidance should consistently include such information in its descriptions of various components of the threshold identification and criteria-setting process.

Key recommendations concerning statistical methods in the Guidance The Committee provides the following key recommendations to address the comments and findings presented above.

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1. In the Guidance, EPA must provide more information on the supporting analyses needed

for each statistical method to correctly identify useful predictive relationships, and acknowledge that the use of these statistical methods alone cannot provide sufficient evidence of a cause-effect relationship.

2. The Guidance should indicate that response variables must in all cases have biological relevance and be associated with designated uses.

3. The Guidance should emphasize that use of the statistical methods requires careful

consideration of confounding variables before the methods can be used as predictive tools. As discussed above, further information on how to address confounding variables should be included in the document.

4. The Guidance should contain additional discussion of the potential consequences of

varying degrees of uncertainty in a stressor-response relationship on the resulting criteria and management objectives. This may be accomplished in part through the use of the EPA DQO process or a similar approach.

5. The Guidance should contain more information on approaches that address multiple

factors, such as a stratified (or hierarchical) approach that considers other attributes known to be important such as canopy, habitat, multiple nutrients, etc.

6. EPA should consider replacing the examples in the Guidance that provide low

explanatory power.

7. As discussed above, the Guidance should contain additional specific information (or guidance on where to find it) on:

− The use of parametric (e.g., Pearson) and non-parametric (e.g., Spearman’s rank,

Kendall’s tau) correlation analyses. − The importance of variable selection (including careful pairing of stressor and

response variables) and data characteristics to ensure useful implementation of the statistical procedures.

− Regression assumptions, limitations, and diagnostic procedures. − Interpretation of results from the listed regression procedures. − The role of, and options for, data transformations. − How and when the results of multiple statistical procedures may be integrated to

support numeric criteria. − An appendix of case studies to explain the appropriate use of statistical methods

and inherent assumptions and uncertainties.

8. The Committee recommends that EPA consider providing technical support and training to states and tribes to assist them in the use of the statistical methods in the Guidance.

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9. The Guidance should describe the goal of data analysis as one of characterizing not only the strength of relationship but also its form, and the evidence supporting conclusions about both.

10. The Committee emphasizes that EPA should provide guidance on how the degree of

relationship (indicated by R2, residuals analysis, and other evidence) relates to establishing predictive stressor-response relationships for numeric nutrient criteria development.

3.6. Charge Question 6. Evaluating the predictive accuracy of stressor-response relationships Section 4 of the draft guidance document describes how to evaluate the predictive accuracy of estimated stressor-response relationships. Please comment on the appropriateness of approaches in Section 4 of the guidance document and factors to consider in evaluating and comparing different estimates of the stressor-response relationships and selecting those most appropriate for criteria derivation. Overall, the Committee notes that Section 4 of the Guidance lacks the detail provided in other sections and, as discussed below, needs improvement. The Committee finds that this section is particularly important because it addresses the reliability or “validity” of the approaches considered. The Guidance should provide information to help managers decide which criteria derivation approach to use (e.g., analysis of best fit by regression or some other means). These are important decisions and additional guidance on how to select the best tools would be helpful. If the proposed methods yield inaccurate results, this could lead to inappropriate or ineffectual solutions to comply with Clean Water Act goals. The Committee provides the following findings and comments in response to Charge Question 6. • The Committee finds that a clear framework and criteria for statistical model selection is

needed in the Guidance. This framework should include a set of decision tools and criteria used not only to determine which model fits best, but also to decide whether the stressor-response approach to criteria development is appropriate. Model selection criteria should include:

− Capability of model to consider cause-effect and direct-indirect relationships between stressor and response;

− Biological relevance; − Relevance to known mechanisms and existing conditions; and − Capability of model to predict probability of meeting designated use categories.

Findings on model validation • More detail is needed in Subsection 4.1 of the Guidance to describe model validation

techniques. In the Guidance there is limited discussion of validation of empirically derived stressor-response relationships. This is a critical component. Validation can be defined as demonstrating the accuracy of the model for a specified use. Within this context, accuracy is the absence of systematic and random error - in ecology they are commonly known as

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trueness and precision respectively. All models are by their nature incomplete representations of the system they are intended to model but, in spite of this limitation, models can be useful. Many discussions of mathematical modeling discriminate between model confirmation (i.e., plausible, worthy of belief) and model verification (i.e., shown to be true). Given the nature of the environmental stressor and response data, such stressor-response models cannot be fully validated. EPA should provide much more detailed validation guidance including four components:

− Conceptual validation concerns the question of whether the model accurately represents the environmental system. This is largely qualitative and requires consideration of the strength of the cause-effect relationships. To consider whether the empirical model assumptions are credible, a conceptual model of factors affecting the stressor-response relationship should be developed. For each of the proposed methods, guidance should be provided with examples showing the mechanistic reasoning behind the cause-effect assumptions and the direct-indirect responses of the stressor and response variables. This should be supported by some experimental evidence relevant to the context in which it is used (e.g., data needs appropriate for lakes may be different than for streams). For each application of the empirical model, experimental or observational data in support of the principles and assumptions should be presented and discussed.

− Algorithm validation concerns the translation of model concepts into mathematical formulae. It addresses questions such as: "Do the equations represent the conceptual model?" "Under which conditions can simplifying assumptions be justified?" "Is there agreement among the results from use of different methods (e.g., different response variables) to solve the model?" For ecological stressor-response models, these questions relate to the adequacy of the empirical models themselves for describing the effects of nutrient enrichment on aquatic life.

− Functional validation concerns checking the model against independently obtained

observations. For this type of validation the Guidance recommends using additional empirical observations (an alternative experimental data set). However, this requires more information than is usually available, and expected results may not be the same from one data set to another given the heterogeneity of environmental systems. Such data cannot truly validate the stressor-response model per se, but may produce valuable insights. Guidance is needed to answer questions such as: "what are the minimum data requirements for validation?" and "if one is working with a limited data set, how does one consider the tradeoffs between using more data in the original analysis and reserving data for validation?"

− Software validation concerns the implementation of mathematical formulae in various

computer software. This validation takes into consideration the possible effects of software-specific factors on the model output (e.g., with regard to precision). For example, problems have been documented with regard to performing statistical analyses with some spreadsheet programs or open source codes.

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• The Committee finds that the concept of “validation” as presented in Subsection 4.1 of the Guidance is inconsistent with other EPA guidance (U.S. EPA, 2009a) on development, evaluation, and application of models. In EPA’s other modeling guidance, model evaluation includes model corroboration, and sensitivity and uncertainty analyses. Model corroboration is defined as quantitative and qualitative methods for evaluating the degree to which a model corresponds to reality. In practical terms, this is the process of “confronting models with data.” In some disciplines, this process has been referred to as validation. EPA prefers the term “corroboration” because it implies a claim of usefulness and not truth. The Committee finds that this is not just a semantic distinction and we recommend that Subsection 4.1 of the Guidance be revised so that it is consistent with other EPA guidance (U.S. EPA, 2009a).

• The use of data quality objectives (DQOs) should be discussed in Subsection 4.1 of the

Guidance. The DQOs should be established at the beginning of the criteria development process (i.e., Guidance step one) but they can also be used to evaluate the potential stressor-response models (Guidance step four). The discussion of DQOs should address levels of uncertainty, Type I and Type II error rates, and the extent to which each model can predict the probability of meeting designated use categories. [See the response to Charge Question 1 for additional discussion of DQOs.]

• In Subsection 4.1, more detailed guidance should be provided on the use of randomly or non-

randomly selected data sets to help address questions about how much data should be held out of the original analysis to adequately support the validation process. Subsection 4.1 is intended to describe how to validate “the predictive performance of different models.” Recommended approaches include: a) collecting new samples; and b) holding out a subset of the original data from the analysis. Reserved samples may be selected randomly or non-randomly. Authors of the Guidance appropriately note that a potential problem with using random subsetting is that the covariance structure of the data is likely to be the same, so that this approach may not provide an independent test of the predictive power of a relationship. As stated in the Guidance, reserving a non-random subset may be a useful alternative. Some discussion of the relative size of calibration and validation data sets is warranted.

• The concept of “best fit” needs elaboration in the Guidance. Best fit is based on the

assumptions made and the model developed and, as previously discussed, there may be considerable uncertainty even if a model is thoroughly and carefully developed. Assumptions that are incorrect or incomplete will lead to erroneous criteria. Authors of the Guidance understand this, and state that relationships can be confounded by unsampled or unmodeled factors. This statement is true and it should be more fully discussed, and perhaps given much greater weight in each section. EPA should consider whether each example in the Guidance should be accompanied by a discussion of possible confounding issues and what might be missing. The concept of uncertainty, its effect on model results, and ways to at least understand the level of uncertainty are not fully described in the Guidance.

• The Guidance should contain additional information to assess the closeness of root-mean-

square predictive error (RMSPE). The RMSPE as presented on p. 42 of the Guidance is a well-recognized measure of how well a statistical model does in predicting response values from given stressor values. Figure 27 of the Guidance gives an example where the RMSPE

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for the calibration data set was 0.28, while the RMSPE for the held-out validation data (from a particular State) was 0.27. Many would agree that those two RMSPEs are "close." But it is necessary to answer the question, “how close is close?” No further statements appear in the Guidance about how to assess the closeness of two RMSPEs. Comparing 0.28 with 0.27 in a single example does not help users of the Guidance extend this example to their own data sets. It might be possible to take a bootstrap approach with regard to the calibration data set to derive an actual distribution of values for the calibration RMSPE against which the RMSPE of the validation data set could be compared. The Guidance does not address this. In addition, it is appropriate to characterize fit quality using other information such as R2, residuals analysis, and regression results.

• With regard to validation, nutrient criteria should result from weight-of-evidence from the

application of multiple empirical approaches considering multiple response variables and other approaches as appropriate. The nutrient criteria values determined after considering validation and uncertainty may vary significantly from technique to technique or from response variable to response variable. The Committee suggests that EPA consider the range of responses and concordance among analyses/models and, as stated previously, establish linkage between response variables and designated use categories. The Guidance should discuss model averaging and should recommend considering the range of responses as a measure of overall utility of the empirical approach. In addition, the Guidance should more strongly advocate decision making based on weight-of-evidence from multiple empirical and other approaches. [See the responses to Charge Questions 1, 3, 5, and 7 for additional discussion of weight-of-evidence.]

Findings on qualitative assessment of the uncertainty of the estimated stressor-response relationship • The Committee finds that Guidance Subsection 4.2 (addressing uncertainty) is too brief.

Given the importance of this cross-cutting issue, a section on uncertainty is needed for each of the steps outlined in the Guidance, and uncertainty should be summarized at the end of the document.

• Subsection 4.2 of the Guidance should address both qualitative and quantitative estimates of

uncertainty. Given reasonable expectations for data availability and inevitable limits on the conceptual understanding of complex environmental systems, the Guidance should discuss both qualitative and quantitative estimates of uncertainties. The Committee notes that an explicit accounting of uncertainty is critical.

• Validity of the space-for-time substitution assumption can be supported by analysis of long-

term stressor-response data for selected data-rich sites. Subsection 4.2 of the Guidance states that all stressor-response models estimated from cross-sectional or synoptic data must also invoke the assumption that spatial differences in sites can be substituted for temporal differences without a substantial degradation of model accuracy (i.e., the space-for-time substitution). As the Guidance states, a good way to provide support for the validity of this assumption is to analyze long-term stressor-response data for selected data-rich sites.

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• As previously discussed, the Guidance should contain additional information about the importance of considering “data bias” in interpreting the stressor-response results with regard to predictive performance and uncertainty, and also the importance of uncertainty imposed by model assumptions. Additional guidance is needed on to how to interpret data from a particular environment (e.g., a data set based on lake data) and its appropriateness (or lack thereof) for describing conditions more broadly. It would be helpful to include in the Guidance examples of databases that would be “ideal” or appropriate for each empirical model presented. For example, would the conceptual model for considering nutrient criteria be ideally approached using seasonal data, data from shaded versus unshaded tributaries, data from wadeable streams versus big rivers, and/or long versus short term averages of data describing the stressor or the response? [See the Responses to Charge Questions 1 and 2 for additional discussion.]

Findings on selection of the stressor-response model • The Committee notes that Subsection 4.3 of the Guidance should discuss grounding models

in reality through use of prior knowledge. A great deal is known about the effects of nutrients on aquatic systems, and the relationships between variables should reflect that knowledge. All models should be evaluated to determine whether they make sense biologically (e.g., is the range of data used appropriate? are the models mechanistically sound?). [See the response to Charge Question 5 for additional discussion.]

• Subsection 4.3 of the Guidance could be improved by providing a more detailed discussion

of how to decide when to use each method to model stressor-response relationships, and the advantages/disadvantages associated with each method. Table 1 on page 44 of the Guidance is not sufficient for this purpose. It would be beneficial to provide a case study using a single data set to demonstrate the comparison of a range of model choices.

• The Committee notes that the stated objective of Subsection 4.3 in the Guidance,

“demonstrating how to select a stressor-response model using the response variable that best represents the data,” is not the same as the goal of Section 4, “evaluating the predictive accuracy of estimated stressor-response relationships.” Confidence in predictive accuracy should be the primary consideration in model selection. Further, while it may ultimately be necessary to select a single model, one should also understand the significance to criteria derivation of selecting among reasonable alternative models or the effect of model averaging when a single most appropriate model cannot clearly be identified.

• In Subsection 4.3 of the Guidance, more detail should be provided in the discussion of

conditions under which the last two methods, non-parametric changepoint analysis (nCPA) and discontinuous regression, should be applied (other than simply stating that they should be used when a direct designated use impairment threshold is unavailable). In addition, the Committee notes that a curved response: 1) may or may not be real; 2) may or may not signal an impaired designated use; and 3) may or may not be indicated at all by the data. Further, a curved response may be modeled by one of the linear methods after transformation. [See the response to Charge Question 5 for additional discussion.]

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• The Committee notes that linear stressor-response functions may not provide high levels of accuracy for nutrient criteria development. Six different methods are summarized in Table 1 of Subsection 4.3. The first four methods all assume that the stressor-response function can be modeled sufficiently as a linear model or a generalized linear model. It is unlikely that linear stressor-response functions can ever achieve high levels of accuracy across the many different confounding variables and the many different physical, chemical and biological characteristics of specific sites.

Key recommendations concerning evaluating the predictive accuracy of estimated stressor-response relationships As a consequence of the findings presented above, the Committee provides the following key recommendations. 1. The Guidance should be revised to provide a clear framework for statistical model selection.

This framework should include a set of decision tools and criteria used not only to determine which model fits best, but also whether the stressor-response approach to criteria development is appropriate.

2. The Guidance should be revised to provide much more detailed model validation guidance. 3. Subsection 4.1 of the Guidance (Model validation) should be revised to:

− Make it consistent with other EPA guidance (U.S. EPA, 2009a) on development, evaluation, and application of models.

− Provide more detailed information on the use of randomly or non-randomly selected

data sets to help address questions about how much data should be held out of the original analysis to adequately support the validation process.

− Elaborate upon assumptions and uncertainties in “best fit” determinations, and in

particular provide additional information to assess the closeness of root-mean-square predictive error (RMSPE).

− State that nutrient criteria should result from a weight-of-evidence approach based on

the application of multiple empirical approaches considering multiple response variables as appropriate.

4. Subsection 4.2 of the Guidance should be revised to provide an expanded discussion of

uncertainty. This section should address both qualitative and quantitative estimates of uncertainty as well as data bias.

5. Subsection 4.3 of the Guidance should be revised to:

− Address grounding models in reality through use of prior knowledge.

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− Provide a more detailed discussion on how to decide when to use each method for modeling stressor-response relationships, and the advantages/disadvantages associated with each method.

− Provide more detail regarding the conditions under which the last two methods, non-

parametric changepoint analysis (nCPA) and discontinuous regression, should be applied.

− Address inaccuracies associated with linear stressor-response functions.

3.7. Charge Question 7. Evaluating candidate stressor-response criteria Section 5 of the draft guidance document describes how to evaluate the candidate stressor-response criteria. An approach is outlined for predicting conditions that might result after implementing different nutrient criteria. Please comment on uncertainties that would remain if water quality criteria for nutrients were based solely on estimated stressor-response relationships and in what ways other information/analysis would help address and possibly reduce this uncertainty.

Section 5 of the Guidance is an important part of the document because selection of criteria has environmental, social, and economic consequences. We provide the following comments and findings in response to Charge Question 7. Findings on recognizing uncertainty • As previously discussed, the Guidance does not address or partition inherent critical

uncertainties in the stressor-response approach. The Guidance describes approaches that use a data-mining exercise to demonstrate a possible cause-effect relationship for the nutrient-ecosystem response. However, the document does not address or partition inherent critical uncertainties in the stressor-response approach which, as demonstrated in examples in the Guidance and in public presentations given to the Committee, can be extremely large (e.g., several orders of magnitude). Because of the demonstrated uncertainties, prediction from an empirical stressor-response model for a specific system of interest cannot always be interpreted as an accurate prediction of future conditions. [See the responses to Charge Questions 1 and 5 for additional discussion.]

• Uncertainty also results from climatic or other environmental conditions under which studies

were conducted. In addition to uncertainties documented in the Guidance and in the public presentations to the Committee, uncertainty also results from the climatic or other environmental conditions under which empirical studies were conducted and response models developed. Studies conducted over relatively limited conditions (e.g., wet or dry years) or short-term periods (e.g., base flows, summer) are unlikely to provide the robust response relationships required for criteria development.

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Findings on reducing uncertainty • A major uncertainty inherent in the Guidance is accounting for factors that influence

biological responses to nutrient inputs. For criteria that meet EPA’s stated goal of “protecting against environmental degradation by nutrients,” the underlying causal models must be correct. Habitat condition is a crucial consideration in this regard (e.g., light [for example, canopy cover], hydrology, grazer abundance, velocity, sediment type) that is not adequately addressed in the Guidance. Thus, a major uncertainty inherent in the Guidance is accounting for factors that influence biological responses to nutrient inputs. Addressing this uncertainty requires adequately accounting for these factors in different types of waterbodies. [See the responses to Charge Questions 1, 2, 3, and 5 for additional discussion.]

• Uncertainty in the water quality criteria for nutrients could be reduced by obtaining data from

well-designed site-specific monitoring programs. If “water quality criteria for nutrients were based solely on estimated stressor-response relationships,” a critical overall uncertainty would be understanding where, within the range of probabilities, a single waterbody to which the criteria are applied will fall. This, in effect, is uncertainty in the space-for-time assumption discussed in the Guidance. That is, if the criterion nutrient concentration developed using an approach involving data from multiple locations is exceeded, will the predicted response and designated use impairment occur at a single location of interest? This type of uncertainty can be reduced by obtaining data from well-designed site-specific monitoring programs. Such monitoring would focus on obtaining specific information on the variability in stressor and response variables and important covariates with a goal of better defining the interactions of multiple variables and attributes affecting the designated uses of a waterbody. Measurement of actual biological responses would be appropriate, emphasizing variables that respond most directly to changes in nutrient concentrations. These are typically measures of primary productivity or primary producers, or water chemistry changes such as DO and pH. Where necessary, such data may be used to develop computer simulation models specific to the system of interest that can facilitate forecasting of stressors and associated responses.

• Numeric nutrient criteria developed and implemented without consideration of system

specific conditions (e.g., from a classification based on site types) can lead to management actions that may have negative social and economic and unintended environmental consequences without additional environmental protection. The Committee emphasizes the importance of not only recognizing but also making allowance in the Guidance for conditions specific to the system of interest so that the resulting science allows the best management decisions to be made. In this regard, as previously discussed, we recommend use of a tiered weight-of-evidence approach to criteria development. Weight-of-evidence is typically used to determine the tier at which uncertainty has been reduced sufficiently for informed management decision making. [See the responses to Charge Questions 1, 2, 3, and 5 for additional discussion.]

• The Guidance can be used to develop numeric nutrient criteria in a tiered, weight-of-evidence

assessment using appropriately modified EPA approved procedures together with other approaches that address causation. Large uncertainties in the stressor-response relationship

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and the fact that causation is neither directly addressed nor documented indicate that the stressor-response approach using empirical data cannot be used in isolation to develop technically defensible water quality criteria that will “protect against environmental degradation by nutrients.” The Guidance can, however, be used in a tiered, weight-of-evidence assessment (using appropriately modified U.S. EPA-approved procedures, e.g., EPA’s Causal Analysis/Diagnosis Decision Information System [CADDIS]), (U.S. EPA, 2009b). [See the responses to Charge Questions 1, 3, 5, and 6 for additional discussion.]

• EPA should consider addressing the use of probabilistic modeling (using the distribution of

data in the model and re-sampling or simulating a new distribution) to better determine significant stressor-response relationships. For instance, a statistically significant stressor-response relationship can be derived that may represent only a small portion of the variability in the data. Relying solely on this relationship would result in a tremendous amount of uncertainty in the final criterion developed. A good example of this is Figure 14 (p. 25) of the Guidance, which shows a statistically significant model that explains only 5% of the variation in the data - meaning that 95% of the variation is not explained by the model. Guidance on model selection is critical to reducing uncertainty. The selection of target numeric criteria as outlined in the Guidance is enhanced by the attempt to predict post-implementation conditions. However, the example used in Figures 29 and 30 of the Guidance is confusing as it appears that the values are re-projected using one criterion value (log TP=2) and the prediction analysis is made (i.e., that all 8 of the sites would still exceed the criterion) using a different value (log TP=1.6).

Findings on criteria application and monitoring for assessment • The approach presented in Section 5 of the Guidance should be revisited and possibly

replaced. It appears to be highly sensitive to the way that individual data points located above a response threshold are distributed around the regression line. For example, in Figures 30 and 31 of the Guidance, near the intersection of TP and chlorophyll a targets and candidate criteria, more than half of the data points fall above the regression line which reflects the best fit to all the data. Projecting back to lower TP concentrations for each of these individual data points would force a lower TP criterion than would be the case if the data were actually normally distributed around the regression line. In other cases, there may be a "cluster" of data points below the regression line, and the back-projected TP criterion would be higher than if all data points were distributed randomly about the regression line.

• The Guidance does not adequately address the important issue of continued monitoring and

assessment for adaptive management. With regard to application of numeric nutrient criteria, Section 5 of the Guidance discusses comparison of predicted and observed data to evaluate response(s), along the lines of adaptive targets. This intrinsically implies that continued monitoring and assessment of concentration versus biological response is taking place. While this is a good idea in principle, it is not clear from the Guidance that this is to be done, how it is to be done, or at what scale it should be done. This is important because it relates to the issue of measuring changes in indicators of biological response as nutrient inputs are reduced to waterbodies. It is unclear how hereditary or legacy losses or inputs of N and P to waterbodies will be considered and accounted for in such an empirical approach. This begs

39

the next set of questions facing water resource managers who establish targets for nutrient loss reduction: “if no water quality improvement or indicator biological response is seen, are the targets/criteria too high or are legacy nutrient inputs increasingly significant contributors?” and “how long does it take dynamic ecosystems and watersheds to respond to changing nutrient inputs?”

• The Guidance should address a number of questions to clarify how the evaluation of

candidate stressor-response criteria will occur, presumably through monitoring. These questions include the following:

− While a sound monitoring program will be essential, what form will this take?

− At what level in time and space will monitoring be established to evaluate criteria?

− Where, when, and how will samples be collected to establish a long-term monitoring program to clearly define and measure candidate response(s) to any changes in management and stressor inputs, as predicted by nutrient criteria?

− How will monitoring be conducted to give a whole watershed assessment, considering all nutrient sources and stressors that are contributing spatially and temporally?

− How will continued legacy stressor inputs (N and P) be distinguished from management change-related decreases? Internal recycling of nutrients can mask water quality improvements brought about by nutrient loss reductions resulting from land management changes.

• The direct and indirect effects of best management practices should be captured in setting

numeric nutrient targets and evaluating responses to target reductions. Implementation of practices to decrease nutrient losses or inputs to surface waters (i.e., best or beneficial management practices [BMPs]) can influence other factors that will affect biological response to nutrient loadings. For instance, riparian buffers are effective at removing sediment and sediment-bound nutrients (particularly P), as well as removing N by uptake and denitrification. However, they also provide shade and will influence stream water temperature and thereby the stressor-response relationship. Such interactions should be addressed in nutrient criteria development. In addition, the use of buffers, for example, will influence the size of particulates or sediment in a stream or river that may affect the benthic population dynamics or species diversity. These direct and indirect effects and complexities should be captured in target setting and the evaluation of response to achieving target reductions.

Key Recommendations in response to Charge Question 7 The Committee provides the following key recommendations to address the comments and findings above.

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Key Recommendations with regard to recognizing uncertainty 1. The Guidance needs to clearly indicate that the empirical stressor-response approach does not

result in cause-effect relationships; it only indicates correlations that need to be explored further. For example, the words “cause-effect” should be removed from the title of Step two.

2. The Guidance should address partitioning the uncertainty among the various factors that are

involved in the stressor-response relationship for the specific region/system of interest. Some variables may be irrelevant to the hypothesized model for that system.

3. The Guidance should better document the physical, chemical and biological variables

comprising the relationships (e.g., habitat, spatial, and temporal) that define the aquatic system, and which may be important in modifying the relationship between nutrient concentrations and observed endpoints. These factors need to be well documented so that the uncertainty in the relationship between nutrient concentrations and measured endpoints can be reduced.

Key recommendations with regard to conceptual models and uncertainty description/analysis 4. The Guidance should caution users about potential problems associated with using the

overall regression to predict conditions that might result after implementing different nutrient criteria.

5. EPA should consider addressing the use of probabilistic modeling to better determine

significant stressor-response relationships. 6. The Guidance should address uncertainty resulting from climatic or other environmental

conditions under which studies were conducted. 7. EPA should discourage use of “biased” databases (i.e., that do not contain the range of data

necessary to fully characterize a system of interest) to develop stressor-response relationships.

8. When cross-sectional data are used to develop empirical models, the ranges of values for

stressors and responses in the cross-sectional data should fully encompass not only the current conditions in systems of interest, but also the predicted values for the stressors and responses corresponding to removal of the designated use impairment.

9. The Committee recommends predicting conditions that might result after implementing

different nutrient criteria and testing these conditions on specific data-rich systems of interest.

10. The Committee recommends that EPA frame uncertainty according to the following key

issues:

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− What are the goals of the decision makers (e.g., what are the designated uses and when are they impaired?), and what amount of certainty is required to make that decision?

− Are the mechanisms of the cause-effect relationship understood and are they reflected

in the types of measurements recommended?

− Do the variables measured reflect the goals of the Clean Water Act? In the examples presented in Section 5 of the Guidance species richness or chlorophyll a are not clearly linked to the stated goals (fishable, swimmable waters, etc).

− Does the analysis tool reflect a known cause-effect relationship and does it allow an

understanding of the process?

− What are the a priori criteria to be met by the data? This must be established to make it possible to tell when the data cannot support the decision making process.

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4. REFERENCES

Adams, S.M. 2003. Establishing causality between environmental stressors and effects on aquatic ecosystems. Human and Ecological Risk Assessment 9:17-35. Benstead, J.P., A.D. Rosemond, W.F. Cross, J.B. Wallace, S.L. Eggert, K. Suberkropp, V. Gulis, J.L. Greenwood, and C.J. Tant. 2009. Nutrient enrichment alters storage and fluxes of detritus in a headwater stream ecosystem. Ecology 90:2556-2566. Burnham K.P. and D.R. Anderson. 2002. Model Selection and multimodel Inference: A Practical Information-Theoretic Approach. Springer-Verlag, NY, 488 pp. Burton, G.A., Jr., P.M. Chapman, and E.P. Smith. 2002. Weight-of-evidence approaches for assessing ecosystem impairment. Human and Ecological Risk Assessment 8:1657-73. Carleton, J.N., M.C. Wellman, A.S. Donigian, J.C. Imhoff, J.T. Love, R.A. Park, and J.S. Clough. 2005. Nutrient Criteria Development with a Linked Modeling System: Methodology Development and Demonstration Case Studies for Blue Earth, Rum and Crow Wing Rivers, Minnesota. EPA-823-R-05-003. U.S. Environmental Protection Agency, Office of Water and Office of Science and Technology, Washington, DC. Cerco, C.F. and M.R. Noel. 2004. The 2002 Chesapeake Bay Eutrophication Model. EPA 903-R-04-004. U.S. Environmental Protection Agency, Region III, Chesapeake Bay Program Office, Annapolis, MD, and U.S. Army Corps of Engineers, Engineer Research and Development Center, Vicksburg, MS. Chapman, P.M. 2007. Determining when contamination is pollution – weight-of-evidence determinations for sediments and effluents. Environment International 33:492-501. Chapman, P.M., B.G. McDonald, and G.S. Lawrence. 2002. Weight-of-evidence frameworks for sediment quality and other assessments. Human and Ecological Risk Assessment 8:1489-1515. Collier, T.K. 2003. Forensic ecotoxicology: Establishing causality between contaminants and biological effects in field studies. Human and Ecological Risk Assessment 9:259-266. Conley, D.J., H.W. Paerl, R.W. Howarth, D.F. Boesch, S.P. Seitzinger, K.E. Havens, C. Lancelot and G.E. Likens. 2009. Controlling eutrophication: nitrogen and phosphorus. Science 323:1014-1015. Cormier, S.M., G.W. Suter, and S.B. Norton. 2010. Causal characteristics for ecoepidemiology. Human and Ecological Risk Assessment 16 (in press). Cross, W.F., J.B. Wallace, A.D. Rosemond, and S.L. Eggert. 2006. Whole-system nutrient enrichment increases secondary production in a detrital-based ecosystem. Ecology 87:1556-1565.

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Cross, W.F., J.B. Wallace, and A.D. Rosemond. 2007. Nutrient enrichment reduces constraints on material flows in a detritus-based food web. Ecology 88:2563-2575. Florida Department of Environmental Protection. 2009. Draft Technical Support document: Development of Numeric Nutrient Criteria for Florida Lakes and Streams. Standards and Assessment Section, Tallahassee, FL [Available at: http://www.dep.state.fl.us/water/wqssp/nutrients ] Fox, G.A. 1991. Practical causal inference for ecoepidemiologists. Journal of Toxicology and Environmental Health 33:359-373. Greenwood, J.L., A.D. Rosemond, J.B. Wallace, W.F. Cross, and H.S. Weyers. 2007. Nutrients stimulate leaf breakdown rates and detritivore biomass: bottom-up effects via heterotrophic pathways. Oecologia 151:637-649. Hagy, J.D., W.R. Boynton, C.W. Keefe, and K.V. Wood. 2004. Hypoxia in Chesapeake Bay, 1950-2001: Long-term change in relation to nutrient loading and river flow. Estuaries 27(4):634-658.

Helsel D.R. and R.M. Hirsch. 1992. Statistical Methods in Water Resources. Elsevier, NY, 522 pp. [Available online at: http://www.practicalstats.com/aes/aes/AESbook_files/HelselHirsch.PDF] Helsel, D.R., D.K Mueller, and J. R. Slack. 2006. Computer program for the Kendall family of trend tests: U.S. Geological Survey Scientific Investigations Report 2005–5275, 4 pp. Hickey, G.L. 2008. Making species salinity sensitivity distributions reflective of naturally occurring communities: using rapid testing and Bayesian statistics. Environmental Toxicology and Chemistry 22:2403-2411. Hill, W.R. and S.E. Fanta. 2008. Phosphorus and light colimit periphyton growth at subsaturating irradiances. Freshwater Biology 53:215-225. Hill, W.R., S.E. Fanta, and B.J. Roberts. 2009. Quantifying phosphorus and light effects in stream algae. Limnology and Oceanography 54:368-380. Kutner, M.H., C.J. Nachtsheim, J. Neter, and W. Li. 2004. Applied Linear Statistical Models, 5th Edition. McGraw-Hill Irwin, NY, 1396 pp. Lewis, W.M., Jr. and W.A. Wurtsbaugh. 2008. Control of lacustrine phytoplankton by nutrients: erosion of the phosphorus paradigm. International Review of Hydrobiology 93:446-465. Leung, K.M.Y., A. Bjorgesester, J. Gray, W.K. Li, G.C.S. Lui, Y. Wang, and P.K.S. Lam. 2005. Deriving sediment quality guidelines for field-based species sensitivity distributions. Environmental Science and Technology 39:5148-5156.

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Linder, S.H., G. Delclos, and K. Sexton. 2010. Making causal claims about environmentally-induced adverse effects. Human and Ecological Risk Assessment 16 (in press). Linkov, I., D. Loney, S. Cormier, F.K. Satterstrom, and T. Bridges. 2009. Weight-of-evidence evaluation in environmental assessment: Review of qualitative and quantitative approaches. Science of the Total Environment 401:5199-5205. Maine Department of Department of Environmental Protection. 2009. Nutrient Criteria for Fresh Surface Waters. http://www.maine.gov/dep/blwq/rules/Other/nutrients_freshwater/index.htm . [Accessed on October 25, 2009] McLaughlin, K. and M. Sutula. 2007. Developing Nutrient Numeric Endpoint and TMDL Tools for California Estuaries: An Implementation Plan. Southern California Coastal Water Research Project Technical Report 540. Costa Mesa, CA [Available at: ftp://ftp.sccwrp.org/pub/download/DOCUMENTS/TechnicalReports/540_CA_NNE_PhaseII.pdf] Mississippi River/Gulf of Mexico Watershed Nutrient Task Force. 2008. Gulf Hypoxia Action Plan 2008 for Reducing, Mitigating, and Controlling Hypoxia in the Northern Gulf of Mexico and Improving Water Quality in the Mississippi River Basin. Washington, DC. [Available at: http://www.epa.gov/msbasin/pdf/ghap2008_update082608.pdf] Paerl, H.W. 2009. Controlling eutrophication along the freshwater-marine continuum: dual nutrient (N and P) reductions are essential. Estuaries and Coasts 32:593-601. Peterson, B.J., J.E. Hobbie, A.E. Hershey, M.A. Lock, T.E. Ford, J.R. Vestal, V.L. McKinley, M.A.J. Hullar, M.C. Miller, R.M. Ventullo, and G.S. Volk. 1985. Transformation of a tundra river from heterotrophy to autotrophy by addition of phosphorus. Science 229:1383-1386. Scavia, D., D. Justic, and V.J. Bierman, Jr. 2004. Reducing hypoxia in the Gulf of Mexico: Advice from three models. Estuaries 27(3):419-425. Slavik, K., B. J. Peterson, L. A. Deegan, W.B. Bowden, A. E. Hershey, and J. E. Hobbie. 2004. Long-term responses of the Kuparuk river ecosystem to phosphorus fertilization. Ecology 85(4): 939-954. Stockner, J.G. and K.R.S. Shortreed. 1978. Enhancement of autotrophic production by nutrient addition in a coastal rainforest stream on Vancouver Island. Journal of the Fisheries Research Board of Canada 35:28-34. Suter, G.W., II, S.B. Norton, and S.M. Cormier. 2002. A methodology for inferring the causes of observed impairments in aquatic ecosystems. Environmental Toxicology and Chemistry 21:1101-1111.

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Suter, G.W., II, S.B. Norton, and S.M. Cormier. 2010. The science and philosophy of a method for assessing environmental causes. Human and Ecological Risk Assessment 16 (in press). Turner, R.E., N.N. Rabalais, and D. Justic. 2008. Gulf of Mexico hypoxia: alternate states and a legacy. Environmental Science and Technology. 42:2323-2327. U.S. EPA. 2000a. Nutrient Criteria Technical Guidance Manual: Rivers and Streams. EPA-822-B-00-001. U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2000b. Nutrient Criteria Technical Guidance Manual: Lakes and Reservoirs. EPA-822-B00-001. U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2000c. Stressor Identification Guidance document. EPA/822/B-00/025, U.S. EPA Office of Water, Washington, DC. U.S. EPA. 2001. Nutrient Criteria Technical Guidance Manual: Estuarine and Coastal Marine Waters. EPA-822-B-01-003. U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2006a. Data Quality Assessment: A Reviewers Guide (QA/G-9R). EPA/240/B-06/002. U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2006b. Data Quality Assessment: Statistical Tools for Practitioners (QA/G9s). EPA/B-06/003. U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2008. Nutrient Criteria Technical Guidance Manual: Wetlands. EPA-822-B-08-001, U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2009a. Guidance on the Development, Evaluation, and Application of Environmental Models. EPA/100/K-09/003. Office of the Science Advisor, Council for Regulatory Environmental Modeling, U.S. Environmental Protection Agency, Washington, DC. U.S. EPA. 2009b. CADDIS: Helping Scientists Identify the Causes of Biological Impairments. http://cfpub.epa.gov/caddis/ [Accessed September 15, 2009] U.S. EPA. 2009c. Quality Management Tools - Systematic Planning. http://www.epa.gov/quality1/dqos.html [Accessed November 11, 2009] Weed, D.L. 2005. Weight-of-evidence: A review of concept and methods. Risk Analysis 25:1545-57. Weisberg, S. 1985. Applied Linear Regression, 2nd Edition. John Wiley & Sons, New York, 324 pp. Wickwire, T. and C.A. Menzie. 2010. The causal analysis framework: Refining approaches and expanding multidisciplinary applications. Human and Ecological Risk Assessment 16 (in press).

CHAPTER 2010-205

Committee Substitute for Committee Substitute forCommittee Substitute for Senate Bill No. 550

An act relating to environmental protection; creating part VII of ch. 373, F.S.,relating to water supply policy, planning, production, and funding;providing a declaration of policy; providing for the general powers andduties of water management district governing boards; requiring theDepartment of Environmental Protection to develop the Florida watersupply plan; providing components of the plan; requiring water manage-ment district governing boards to develop water supply plans for theirrespective regions; providing components of district water supply plans;providing legislative findings and intent with respect to water resourcedevelopment and water supply development; requiring water managementdistricts to fund and implement water resource development; specifyingwater supply development projects that are eligible to receive priorityconsideration for state or water management district funding assistance;encouraging cooperation in the development of water supplies; providingfor alternative water supply development; encouraging municipalities,counties, and special districts to create regional water supply authorities;establishing the primary roles of the water management districts inalternative water supply development; establishing the primary roles oflocal governments, regional water supply authorities, special districts, andpublicly owned and privately owned water utilities in alternative watersupply development; requiring the water management districts to detailthe specific allocations to be used for alternative water supply developmentin their annual budget submission; requiring that the water managementdistricts include the amount needed to implement the water supplydevelopment projects in each annual budget; establishing general fundingcriteria for funding assistance to the state or water management districts;establishing economic incentives for alternative water supply develop-ment; providing a funding formula for the distribution of state funds to thewater management districts for alternative water supply development;requiring that funding assistance for alternative water supply develop-ment be limited to a percentage of the total capital costs of an approvedproject; establishing a selection process and criteria; providing for costrecovery from the Public Service Commission; requiring a water manage-ment district governing board to conduct water supply planning for eachregion identified in the district water supply plan; providing proceduresand requirements with respect to regional water supply plans; providingfor joint development of a specified water supply development componentof a regional water supply plan within the boundaries of the SouthwestFlorida Water Management District; providing that approval of a regionalwater supply plan is not subject to the rulemaking requirements of theAdministrative Procedure Act; requiring the department to submit annualreports on the status of regional water supply planning in each district;providing for construction with respect to the water supply development

1

component of a regional water supply plan; requiring water managementdistricts to present to certain entities the relevant portions of a regionalwater supply plan; requiring certain entities to provide written notificationto water management districts as to the implementation of water supplyproject options; requiring water management districts to notify localgovernments of the need for alternative water supply projects; requiringwater management districts to assist local governments in the develop-ment and future revision of local government comprehensive planelements or public facilities reports related to water resource issues;providing for the creation of regional water supply authorities; providingpurpose of such authorities; specifying considerations with respect to thecreation of a proposed authority; specifying authority of a regional watersupply authority; providing authority of specified entities to convey title,dedicate land, or grant land-use rights to a regional water supply authorityfor specified purposes; providing preferential rights of counties andmunicipalities to purchase water from regional water supply authorities;providing an exemption for specified water supply authorities fromconsideration of certain factors and submissions; providing applicabilityof such exemptions; authorizing the West Coast Regional Water SupplyAuthority and its member governments to reconstitute the authority’sgovernance and rename the authority under a voluntary interlocalagreement; providing compliance requirements with respect to theinterlocal agreement; providing for supersession of conflicting general orspecial laws; providing requirements with respect to annual budgets;specifying the annual millage for the authority; authorizing the authorityto request the governing board of the district to levy ad valorem taxeswithin the boundaries of the authority to finance authority functions;providing requirements and procedures with respect to the collection ofsuch taxes; amending ss. 120.52, 163.3167, 163.3177, 163.3191, 189.404,189.4155, 189.4156, and 367.021, F.S.; conforming cross-references andremoving obsolete provisions; amending ss. 373.036, 373.0363, 373.0421,373.0695, 373.223, 373.2234, 373.229, 373.236, 373.536, 373.59, 378.212,378.404, 403.0891, 403.890, 403.891, and 682.02, F.S.; conforming cross-references and removing obsolete provisions; renumbering s. 373.71, F.S.;relating to the Apalachicola-Chattahoochee-Flint River Basin Compact, toclarify retention of the section in part VI of ch. 373, F.S.; repealing s.373.0361, F.S., relating to regional water supply planning; repealing s.373.0391, F.S., relating to technical assistance to local governments;repealing s. 373.0831, F.S., relating to water resource and water supplydevelopment; repealing s. 373.196, F.S., relating to alternative watersupply development; repealing s. 373.1961, F.S., relating to waterproduction and related powers and duties of water management districts;repealing s. 373.1962, F.S., relating to regional water supply authorities;repealing s. 373.1963, F.S., relating to assistance to the West CoastRegional Water Supply Authority; amending s. 373.1961, F.S.; expandingalternative water supply funding to include quantifiable conservationprojects; adding a high-water recharge criterion to the ranking criteria forwater projects; amending s. 373.414, F.S.; adding limestone extractionoperations to activities in surface waters and wetlands that require

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mitigation; amending s. 378.901, F.S.; allowing life-of-the-mine permits forlimestone extraction operations; providing authority for local governmentsto impose different permit restrictions; amending s. 373.41492, F.S.;updating mitigation fees for the Miami-Dade Lake Belt Mitigation Plan;revising provisions requiring the interagency committee to submit a reportregarding mitigation fees to the Legislature; amending s. 215.619, F.S.;authorizing the issuance of bonds to be used to finance the management ofsewage facilities in the Florida Keys Area of Critical State Concern;amending s. 380.0552, F.S.; revising legislative intent relating to thedesignation of the Florida Keys as an area of critical state concern; revisingthe procedures for removing the designation; providing for administrativereview of such removal rather than judicial review; authorizing theAdministration Commission to adopt rules or revise existing rules;revising the principles guiding development; revising compliance require-ments for reviewing comprehensive plan amendments; amending s.381.0065, F.S.; providing additional legislative intent; providing addi-tional requirements for onsite sewage treatment and disposal systems inMonroe County; directing the Department of Health to create andadminister a statewide septic tank evaluation program; providing proce-dures and criteria for the evaluation program; prohibiting the landapplication of septage after January 1, 2016; creating s. 381.00656, F.S.;providing for a low-income grant program for septic tank maintenance andreplacement; amending s. 381.0066, F.S.; authorizing the Department ofHealth to collect an evaluation report fee; requiring such fees to be revenueneutral; amending s. 403.086, F.S.; requiring the Department of Environ-mental Protection to submit a report on the effects of reclaimed water use;clarifying reuse requirements for domestic wastewater facilities thatdischarge through ocean outfalls; clarifying reuse requirements fordomestic wastewater facilities that divert wastewater from facilitiesdischarging through ocean outfalls; providing legislative findings anddischarge requirements for wastewater facilities in Monroe County;repealing sections 4, 5, and 6 of chapter 99-395, Laws of Florida, asamended, relating to sewage treatment in the Florida Keys; amending s.403.1835, F.S.; conforming terms to changes made to the Florida WaterPollution Control Financing Corporation; amending s. 403.1837, F.S.;expanding the purview of the corporation to include loans made from thedrinking water state revolving loan fund; providing conforming changes;amending s. 403.8532, F.S.; providing definitions for the terms “bonds” and“corporation”; providing conforming changes; authorizing the Departmentof Environmental Protection to adopt certain rules; amending s. 403.8533,F.S.; revising the purposes for the Drinking Water Revolving Loan TrustFund; providing that the trust fund is exempt from the terminationprovisions of the State Constitution; amending s. 369.317, F.S.; clarifyingmitigation offsets in the Wekiva Study Area; amending s. 215.47, F.S.;authorizing the State Board of Administration to make investments inalternative water supply and water resource development projects;amending s. 373.129, F.S.; requiring the water management districts tosubmit to alternative dispute resolution in conflicts with other govern-mental entities; amending s. 403.707, F.S.; requiring liners for new

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landfills and expansions of existing landfills not yet permitted that willaccept construction and demolition debris; amending s. 298.66, F.S.;clarifying penalties for people who damage drainage works constructedor maintained by a water management district; providing legislative intentthat there are no substantive changes in the reorganization ch. 373, F.S.;providing legislative intent that substantive changes affecting repealedsections of law relating to the reorganization of ch. 373, F.S., shall be givenfull force and effect; amending s. 373.0361, F.S.; providing for the inclusionof wastewater utilities, reuse utilities, and the department in the regionalwater supply planning process; amending s. 373.079, F.S.; revisingprovisions relating to the authority of a water management districtgoverning board to employ an executive director, an ombudsman, aninspector general, professional persons, and personnel; prohibiting gov-erning board intervention during review of specified permit applications;providing for expiration of such prohibition; revising provisions authoriz-ing a water management district governing board to delegate certainauthority to the executive director; requiring the governing board toprovide a process for referring certain denials to the board for final action;amending s. 373.083, F.S.; revising provisions authorizing a watermanagement district governing board to delegate certain authority tothe executive director; deleting a provision prohibiting governing boardmembers from intervening in the review of certain applications; amendings. 373.085, F.S.; requiring water management districts and governmentalagencies to encourage public-private partnerships for procurement ofmaterials for infrastructure and restoration work projects; amending s.373.118, F.S.; authorizing a water management district governing board todelegate certain authority to the executive director; requiring a watermanagement district governing board to provide a process for referringapplication and petition denials to the board for final action; exemptingsuch delegations from rulemaking under ch. 120, F.S.; amending s.373.236, F.S.; reducing the frequency of compliance reports during theterm of a consumptive use permit; providing an exception; amending s.373.250, F.S.; requiring water management districts, in consultation withthe department, to adopt rules relating to reclaimed water feasibilityevaluations for consumptive use permit applicants; providing rule require-ments; encouraging reuse utilities and water management districts toperiodically coordinate and share information relating to reclaimed water;requiring water management districts to initiate certain rulemaking by aspecified date; providing legislative findings with respect to nutrient waterquality standards and the United States Environmental ProtectionAgency’s nutrient water quality criteria rulemaking; amending ss.220.1845 and 376.30781, F.S.; providing requirements for claiming certainsite rehabilitation costs in applications for contaminated site rehabilita-tion tax credits; conforming cross-references; amending s. 376.85, F.S.;revising requirements for the Department of Environmental Protection’sannual report to the Legislature regarding site rehabilitation; amending s.403.973, F.S.; transferring certain authority over the expedited permittingand comprehensive plan amendment process from the Office of Tourism,Trade, and Economic Development to the Secretary of Environmental

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Protection; revising job-creation criteria for businesses to qualify to submitpermit applications and local comprehensive plan amendments forexpedited review; providing that permit applications and local compre-hensive plan amendments for specified renewable energy projects areeligible for the expedited permitting process; providing for the establish-ment of regional permit action teams through the execution of memorandaof agreement developed by permit applicants and the secretary; revisingprovisions relating to the memoranda of agreement developed by thesecretary; providing for the appeal of local government comprehensiveplan approvals for projects and requiring such appeals to be consolidatedwith challenges to state agency actions; requiring recommended ordersrelating to challenges to state agency actions pursuant to summaryhearing provisions to include certain information; extending the deadlinefor issuance of final orders relating to such challenges; providing forchallenges to state agency action related to expedited permitting forspecified renewable energy projects; revising provisions relating to thereview of sites proposed for the location of facilities eligible for theInnovation Incentive Program; revising criteria for counties eligible toreceive technical assistance in preparing permit applications and localcomprehensive plan amendments; specifying expedited review eligibilityfor certain electrical power projects; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Part VII of chapter 373, Florida Statutes, consisting of sections373.701, 373.703, 373.705, 373.707, 373.709, 373.711, 373.713, and 373.715,is created to read:

PART VII

WATER SUPPLY POLICY, PLANNING, PRODUCTION, AND FUNDING

373.701 Declaration of policy.—It is declared to be the policy of theLegislature:

(1) To promote the availability of sufficient water for all existing andfuture reasonable-beneficial uses and natural systems.

(2)(a) Because water constitutes a public resource benefiting the entirestate, it is the policy of the Legislature that the waters in the state bemanaged on a state and regional basis. Consistent with this directive, theLegislature recognizes the need to allocate water throughout the state so asto meet all reasonable-beneficial uses. However, the Legislature acknowl-edges that such allocations have in the past adversely affected the waterresources of certain areas in this state. To protect such water resources andto meet the current and future needs of those areas with abundant water, theLegislature directs the department and the water management districts toencourage the use of water from sources nearest the area of use or applicationwhenever practicable. Such sources shall include all naturally occurringwater sources and all alternative water sources, including, but not limited to,

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desalination, conservation, reuse of nonpotable reclaimed water and storm-water, and aquifer storage and recovery. Reuse of potable reclaimed waterand stormwater shall not be subject to the evaluation described in s.373.223(3)(a)-(g). However, this directive to encourage the use of water,whenever practicable, from sources nearest the area of use or applicationshall not apply to the transport and direct and indirect use of water withinthe area encompassed by the Central and Southern Florida Flood ControlProject, nor shall it apply anywhere in the state to the transport and use ofwater supplied exclusively for bottled water as defined in s. 500.03(1)(d), norshall it apply to the transport and use of reclaimed water for electrical powerproduction by an electric utility as defined in s. 366.02(2).

(b) In establishing the policy outlined in paragraph (a), the Legislaturerealizes that under certain circumstances the need to transport water fromdistant sources may be necessary for environmental, technical, or economicreasons.

(3) Cooperative efforts between municipalities, counties, water manage-ment districts, and the department are mandatory in order to meet the waterneeds of rapidly urbanizing areas in a manner that will supply adequate anddependable supplies of water where needed without resulting in adverseeffects upon the areas from which such water is withdrawn. Such effortsshould use all practical means of obtaining water, including, but not limitedto, withdrawals of surface water and ground water, reuse, and desalinationand will necessitate not only cooperation but also well-coordinated activities.Municipalities, counties, and special districts are encouraged to createregional water supply authorities as authorized in s. 373.713 or multi-jurisdictional water supply entities.

373.703 Water production; general powers and duties.—In the perfor-mance of, and in conjunction with, its other powers and duties, the governingboard of a water management district existing pursuant to this chapter:

(1) Shall engage in planning to assist counties, municipalities, specialdistricts, publicly owned and privately owned water utilities, multijurisdic-tional water supply entities, or regional water supply authorities in meetingwater supply needs in such manner as will give priority to encouragingconservation and reducing adverse environmental effects of improper orexcessive withdrawals of water from concentrated areas. As used in thissection and s. 373.707, regional water supply authorities are regional waterauthorities created under s. 373.713 or other laws of this state.

(2) Shall assist counties, municipalities, special districts, publicly ownedor privately owned water utilities, multijurisdictional water supply entities,or regional water supply authorities in meeting water supply needs in suchmanner as will give priority to encouraging conservation and reducingadverse environmental effects of improper or excessive withdrawals of waterfrom concentrated areas.

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(3) May establish, design, construct, operate, and maintain waterproduction and transmission facilities for the purpose of supplying waterto counties, municipalities, special districts, publicly owned and privatelyowned water utilities, multijurisdictional water supply entities, or regionalwater supply authorities. The permit required by part II of this chapter for awater management district engaged in water production and transmissionshall be granted, denied, or granted with conditions by the department.

(4) Shall not engage in local water supply distribution.

(5) Shall not deprive, directly or indirectly, any county wherein water iswithdrawn of the prior right to the reasonable and beneficial use of waterwhich is required to supply adequately the reasonable and beneficial needs ofthe county or any of the inhabitants or property owners therein.

(6) May provide water and financial assistance to regional water supplyauthorities, but may not provide water to counties and municipalities whichare located within the area of such authority without the specific approval ofthe authority or, in the event of the authority’s disapproval, the approval ofthe Governor and Cabinet sitting as the Land and Water AdjudicatoryCommission. The district may supply water at rates and upon termsmutually agreed to by the parties or, if they do not agree, as set by thegoverning board and specifically approved by the Governor and Cabinetsitting as the Land and Water Adjudicatory Commission.

(7) May acquire title to such interest as is necessary in real property, bypurchase, gift, devise, lease, eminent domain, or otherwise, for waterproduction and transmission consistent with this section and s. 373.707.However, the district shall not use any of the eminent domain powers hereingranted to acquire water and water rights already devoted to reasonable andbeneficial use or any water production or transmission facilities owned byany county, municipality, or regional water supply authority. The districtmay exercise eminent domain powers outside of its district boundaries for theacquisition of pumpage facilities, storage areas, transmission facilities, andthe normal appurtenances thereto, provided that at least 45 days prior to theexercise of eminent domain, the district notifies the district where theproperty is located after public notice and the district where the property islocated does not object within 45 days after notification of such exercise ofeminent domain authority.

(8) In addition to the power to issue revenue bonds pursuant to s.373.584, may issue revenue bonds for the purposes of paying the costs andexpenses incurred in carrying out the purposes of this chapter or refundingobligations of the district issued pursuant to this section. Such revenue bondsshall be secured by, and be payable from, revenues derived from theoperation, lease, or use of its water production and transmission facilitiesand other water-related facilities and from the sale of water or servicesrelating thereto. Such revenue bonds may not be secured by, or be payablefrom, moneys derived by the district from the Water Management LandsTrust Fund or from ad valorem taxes received by the district. All provisions of

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s. 373.584 relating to the issuance of revenue bonds which are notinconsistent with this section shall apply to the issuance of revenue bondspursuant to this section. The district may also issue bond anticipation notesin accordance with the provisions of s. 373.584.

(9) May join with one or more other water management districts,counties, municipalities, special districts, publicly owned or privatelyowned water utilities, multijurisdictional water supply entities, or regionalwater supply authorities for the purpose of carrying out any of its powers,and may contract with such other entities to finance acquisitions, construc-tion, operation, andmaintenance. The contract may provide for contributionsto be made by each party thereto, for the division and apportionment of theexpenses of acquisitions, construction, operation, and maintenance, and forthe division and apportionment of the benefits, services, and productstherefrom. The contracts may contain other covenants and agreementsnecessary and appropriate to accomplish their purposes.

373.705 Water resource development; water supply development.—

(1) The Legislature finds that:

(a) The proper role of the water management districts in water supply isprimarily planning and water resource development, but this does notpreclude them from providing assistance with water supply development.

(b) The proper role of local government, regional water supply autho-rities, and government-owned and privately owned water utilities in watersupply is primarily water supply development, but this does not precludethem from providing assistance with water resource development.

(c) Water resource development and water supply development mustreceive priority attention, where needed, to increase the availability ofsufficient water for all existing and future reasonable-beneficial uses andnatural systems.

(2) It is the intent of the Legislature that:

(a) Sufficient water be available for all existing and future reasonable-beneficial uses and the natural systems, and that the adverse effects ofcompetition for water supplies be avoided.

(b) Water management districts take the lead in identifying andimplementing water resource development projects, and be responsible forsecuring necessary funding for regionally significant water resource devel-opment projects.

(c) Local governments, regional water supply authorities, and govern-ment-owned and privately owned water utilities take the lead in securingfunds for and implementing water supply development projects. Generally,direct beneficiaries of water supply development projects should pay the

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costs of the projects from which they benefit, and water supply developmentprojects should continue to be paid for through local funding sources.

(d) Water supply development be conducted in coordination with watermanagement district regional water supply planning and water resourcedevelopment.

(3) The water management districts shall fund and implement waterresource development as defined in s. 373.019. The water managementdistricts are encouraged to implement water resource development asexpeditiously as possible in areas subject to regional water supply plans.Each governing board shall include in its annual budget the amount neededfor the fiscal year to implement water resource development projects, asprioritized in its regional water supply plans.

(4)(a) Water supply development projects that are consistent with therelevant regional water supply plans and that meet one or more of thefollowing criteria shall receive priority consideration for state or watermanagement district funding assistance:

1. The project supports establishment of a dependable, sustainablesupply of water which is not otherwise financially feasible;

2. The project provides substantial environmental benefits by preventingor limiting adverse water resource impacts, but requires funding assistanceto be economically competitive with other options; or

3. The project significantly implements reuse, storage, recharge, orconservation of water in a manner that contributes to the sustainability ofregional water sources.

(b) Water supply development projects that meet the criteria in para-graph (a) and that meet one or more of the following additional criteria shallbe given first consideration for state or water management district fundingassistance:

1. The project brings about replacement of existing sources in order tohelp implement a minimum flow or level; or

2. The project implements reuse that assists in the elimination ofdomestic wastewater ocean outfalls as provided in s. 403.086(9).

373.707 Alternative water supply development.—

(1) The purpose of this section is to encourage cooperation in thedevelopment of water supplies and to provide for alternative water supplydevelopment.

(a) Demands on natural supplies of fresh water to meet the needs of arapidly growing population and the needs of the environment, agriculture,industry, and mining will continue to increase.

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(b) There is a need for the development of alternative water supplies forFlorida to sustain its economic growth, economic viability, and naturalresources.

(c) Cooperative efforts between municipalities, counties, special districts,water management districts, and the Department of Environmental Protec-tion are mandatory in order to meet the water needs of rapidly urbanizingareas in a manner that will supply adequate and dependable supplies ofwater where needed without resulting in adverse effects upon the areas fromwhich such water is withdrawn. Such efforts should use all practical means ofobtaining water, including, but not limited to, withdrawals of surface waterand ground water, reuse, and desalinization, and will necessitate not onlycooperation but also well-coordinated activities. Municipalities, counties,and special districts are encouraged to create regional water supplyauthorities as authorized in s. 373.713 or multijurisdictional water supplyentities.

(d) Alternative water supply development must receive priority fundingattention to increase the available supplies of water to meet all existing andfuture reasonable-beneficial uses and to benefit the natural systems.

(e) Cooperation between counties, municipalities, regional water supplyauthorities, multijurisdictional water supply entities, special districts, andpublicly owned and privately owned water utilities in the development ofcountywide and multicountywide alternative water supply projects willallow for necessary economies of scale and efficiencies to be achieved in orderto accelerate the development of new, dependable, and sustainable alter-native water supplies.

(f) It is in the public interest that county, municipal, industrial,agricultural, and other public and private water users, the Department ofEnvironmental Protection, and the water management districts cooperateand work together in the development of alternative water supplies to avoidthe adverse effects of competition for limited supplies of water. Publicmoneys or services provided to private entities for alternative water supplydevelopment may constitute public purposes that also are in the publicinterest.

(2)(a) Sufficient water must be available for all existing and futurereasonable-beneficial uses and the natural systems, and the adverse effectsof competition for water supplies must be avoided.

(b) Water supply development and alternative water supply developmentmust be conducted in coordination with water management district regionalwater supply planning.

(c) Funding for the development of alternative water supplies shall be ashared responsibility of water suppliers and users, the State of Florida, andthe water management districts, with water suppliers and users having the

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primary responsibility and the State of Florida and the water managementdistricts being responsible for providing funding assistance.

(3) The primary roles of the water management districts in waterresource development as it relates to supporting alternative water supplydevelopment are:

(a) The formulation and implementation of regional water resourcemanagement strategies that support alternative water supply development;

(b) The collection and evaluation of surface water and groundwater datato be used for a planning level assessment of the feasibility of alternativewater supply development projects;

(c) The construction, operation, and maintenance of major public worksfacilities for flood control, surface and underground water storage, andgroundwater recharge augmentation to support alternative water supplydevelopment;

(d) Planning for alternative water supply development as provided inregional water supply plans in coordination with local governments, regionalwater supply authorities, multijurisdictional water supply entities, specialdistricts, and publicly owned and privately owned water utilities and self-suppliers;

(e) The formulation and implementation of structural and nonstructuralprograms to protect and manage water resources in support of alternativewater supply projects; and

(f) The provision of technical and financial assistance to local govern-ments and publicly owned and privately owned water utilities for alternativewater supply projects.

(4) The primary roles of local government, regional water supplyauthorities, multijurisdictional water supply entities, special districts, andpublicly owned and privately owned water utilities in alternative watersupply development shall be:

(a) The planning, design, construction, operation, and maintenance ofalternative water supply development projects;

(b) The formulation and implementation of alternative water supplydevelopment strategies and programs;

(c) The planning, design, construction, operation, and maintenance offacilities to collect, divert, produce, treat, transmit, and distribute water forsale, resale, or end use; and

(d) The coordination of alternative water supply development activitieswith the appropriate water management district having jurisdiction over theactivity.

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(5) Nothing in this section shall be construed to preclude the variousspecial districts, municipalities, and counties from continuing to operateexisting water production and transmission facilities or to enter intocooperative agreements with other special districts, municipalities, andcounties for the purpose of meeting their respective needs for dependable andadequate supplies of water; however, the obtaining of water through suchoperations shall not be done in a manner that results in adverse effects uponthe areas from which such water is withdrawn.

(6)(a) The statewide funds provided pursuant to the Water Protectionand Sustainability Program serve to supplement existing water manage-ment district or basin board funding for alternative water supply develop-ment assistance and should not result in a reduction of such funding.Therefore, the water management districts shall include in the annualtentative and adopted budget submittals required under this chapter theamount of funds allocated for water resource development that supportsalternative water supply development and the funds allocated for alternativewater supply projects selected for inclusion in the Water Protection andSustainability Program. It shall be the goal of each water managementdistrict and basin boards that the combined funds allocated annually forthese purposes be, at a minimum, the equivalent of 100 percent of the statefunding provided to the water management district for alternative watersupply development. If this goal is not achieved, the water managementdistrict shall provide in the budget submittal an explanation of the reasons orconstraints that prevent this goal from being met, an explanation of how thegoal will be met in future years, and affirmation of match is required duringthe budget review process as established under s. 373.536(5). The SuwanneeRiver Water Management District and the Northwest Florida WaterManagement District shall not be required to meet the match requirementsof this paragraph; however, they shall try to achieve the match requirementto the greatest extent practicable.

(b) State funds from the Water Protection and Sustainability Programcreated in s. 403.890 shall be made available for financial assistance for theproject construction costs of alternative water supply development projectsselected by a water management district governing board for inclusion in theprogram.

(7) The water management district shall implement its responsibilitiesas expeditiously as possible in areas subject to regional water supply plans.Each district’s governing board shall include in its annual budget the amountneeded for the fiscal year to assist in implementing alternative water supplydevelopment projects.

(8)(a) The water management districts and the state shall share apercentage of revenues with water providers and users, including localgovernments, water, wastewater, and reuse utilities, municipal, specialdistrict, industrial, and agricultural water users, and other public andprivate water users, to be used to supplement other funding sources in thedevelopment of alternative water supplies.

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(b) Beginning in the 2005-2006 fiscal year, the state shall annuallyprovide a portion of those revenues deposited into the Water Protection andSustainability Program Trust Fund for the purpose of providing fundingassistance for the development of alternative water supplies pursuant to theWater Protection and Sustainability Program. At the beginning of each fiscalyear, beginning with the 2005-2006 fiscal year, such revenues shall bedistributed by the department into the alternative water supply trust fundaccounts created by each district for the purpose of alternative water supplydevelopment under the following funding formula:

1. Thirty percent to the South Florida Water Management District;

2. Twenty-five percent to the Southwest Florida Water ManagementDistrict;

3. Twenty-five percent to the St. Johns River Water ManagementDistrict;

4. Ten percent to the Suwannee River Water Management District; and

5. Ten percent to the Northwest Florida Water Management District.

(c) The financial assistance for alternative water supply projects allo-cated in each district’s budget as required in subsection (6) shall be combinedwith the state funds and used to assist in funding the project constructioncosts of alternative water supply projects selected by the governing board. Ifthe district has not completed any regional water supply plan, or the regionalwater supply plan does not identify the need for any alternative water supplyprojects, funds deposited in that district’s trust fund may be used for waterresource development projects, including, but not limited to, springsprotection.

(d) All projects submitted to the governing board for consideration shallreflect the total capital cost for implementation. The costs shall be segregatedpursuant to the categories described in the definition of capital costs.

(e) Applicants for projects that may receive funding assistance pursuantto the Water Protection and Sustainability Program shall, at a minimum, berequired to pay 60 percent of the project’s construction costs. The watermanagement districts may, at their discretion, totally or partially waive thisrequirement for projects sponsored by financially disadvantaged small localgovernments as defined in former s. 403.885(5). The water managementdistricts or basin boards may, at their discretion, use ad valorem or federalrevenues to assist a project applicant in meeting the requirements of thisparagraph.

(f) The governing boards shall determine those projects that will beselected for financial assistance. The governing boards may establish factorsto determine project funding; however, significant weight shall be given tothe following factors:

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1. Whether the project provides substantial environmental benefits bypreventing or limiting adverse water resource impacts.

2. Whether the project reduces competition for water supplies.

3. Whether the project brings about replacement of traditional sources inorder to help implement a minimum flow or level or a reservation.

4. Whether the project will be implemented by a consumptive usepermittee that has achieved the targets contained in a goal-based waterconservation program approved pursuant to s. 373.227.

5. The quantity of water supplied by the project as compared to its cost.

6. Projects in which the construction and delivery to end users of reusewater is a major component.

7. Whether the project will be implemented by a multijurisdictionalwater supply entity or regional water supply authority.

8. Whether the project implements reuse that assists in the eliminationof domestic wastewater ocean outfalls as provided in s. 403.086(9).

(g) Additional factors to be considered in determining project fundingshall include:

1. Whether the project is part of a plan to implement two or morealternative water supply projects, all of which will be operated to producewater at a uniform rate for the participants in a multijurisdictional watersupply entity or regional water supply authority.

2. The percentage of project costs to be funded by the water supplier orwater user.

3. Whether the project proposal includes sufficient preliminary planningand engineering to demonstrate that the project can reasonably beimplemented within the timeframes provided in the regional water supplyplan.

4. Whether the project is a subsequent phase of an alternative watersupply project that is underway.

5. Whether and in what percentage a local government or local govern-ment utility is transferring water supply system revenues to the localgovernment general fund in excess of reimbursements for services receivedfrom the general fund, including direct and indirect costs and legitimatepayments in lieu of taxes.

(h) After conducting one or more meetings to solicit public input oneligible projects, including input from those entities identified pursuant to s.373.709(2)(a)3.d. for implementation of alternative water supply projects, thegoverning board of each water management district shall select projects for

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funding assistance based upon the criteria set forth in paragraphs (f) and (g).The governing boardmay select a project identified or listed as an alternativewater supply development project in the regional water supply plan, orallocate up to 20 percent of the funding for alternative water supply projectsthat are not identified or listed in the regional water supply plan but areconsistent with the goals of the plan.

(i) Without diminishing amounts available through other means de-scribed in this paragraph, the governing boards are encouraged to considerestablishing revolving loan funds to expand the total funds available toaccomplish the objectives of this section. A revolving loan fund created underthis paragraph must be a nonlapsing fund from which the water manage-ment district may make loans with interest rates below prevailing marketrates to public or private entities for the purposes described in this section.The governing board may adopt resolutions to establish revolving loan fundswhich must specify the details of the administration of the fund, theprocedures for applying for loans from the fund, the criteria for awardingloans from the fund, the initial capitalization of the fund, and the goals forfuture capitalization of the fund in subsequent budget years. Revolving loanfunds created under this paragraph must be used to expand the total sumsand sources of cooperative funding available for the development ofalternative water supplies. The Legislature does not intend for the creationof revolving loan funds to supplant or otherwise reduce existing sources oramounts of funds currently available through other means.

(j) For each utility that receives financial assistance from the state or awater management district for an alternative water supply project, the watermanagement district shall require the appropriate rate-setting authority todevelop rate structures for water customers in the service area of the fundedutility that will:

1. Promote the conservation of water; and

2. Promote the use of water from alternative water supplies.

(k) The governing boards shall establish a process for the disbursal ofrevenues pursuant to this subsection.

(l) All revenues made available pursuant to this subsection must beencumbered annually by the governing board when it approves projectssufficient to expend the available revenues.

(m) This subsection is not subject to the rulemaking requirements ofchapter 120.

(n) By March 1 of each year, as part of the consolidated annual reportrequired by s. 373.036(7), each water management district shall submit areport on the disbursal of all budgeted amounts pursuant to this section.Such report shall describe all alternative water supply projects funded aswell as the quantity of newwater to be created as a result of such projects and

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shall account separately for any other moneys provided through grants,matching grants, revolving loans, and the use of district lands or facilities toimplement regional water supply plans.

(o) The Florida Public Service Commission shall allow entities under itsjurisdiction constructing or participating in constructing facilities thatprovide alternative water supplies to recover their full, prudently incurredcost of constructing such facilities through their rate structure. If construc-tion of a facility or participation in construction is pursuant to or infurtherance of a regional water supply plan, the cost shall be deemed tobe prudently incurred. Every component of an alternative water supplyfacility constructed by an investor-owned utility shall be recovered in currentrates. Any state or water management district cost-share is not subject to therecovery provisions allowed in this paragraph.

(9) Funding assistance provided by the water management districts for awater reuse system may include the following conditions for that project if awater management district determines that such conditions will encouragewater use efficiency:

(a) Metering of reclaimed water use for residential irrigation, agricultur-al irrigation, industrial uses, except for electric utilities as defined in s.366.02(2), landscape irrigation, golf course irrigation, irrigation of otherpublic access areas, commercial and institutional uses such as toilet flushing,and transfers to other reclaimed water utilities;

(b) Implementation of reclaimed water rate structures based on actualuse of reclaimed water for the reuse activities listed in paragraph (a);

(c) Implementation of education programs to inform the public aboutwater issues, water conservation, and the importance and proper use ofreclaimed water; or

(d) Development of location data for key reuse facilities.

373.709 Regional water supply planning.—

(1) The governing board of each water management district shall conductwater supply planning for any water supply planning region within thedistrict identified in the appropriate district water supply plan under s.373.036, where it determines that existing sources of water are not adequateto supply water for all existing and future reasonable-beneficial uses and tosustain the water resources and related natural systems for the planningperiod. The planning must be conducted in an open public process, incoordination and cooperation with local governments, regional water supplyauthorities, government-owned and privately owned water utilities, multi-jurisdictional water supply entities, self-suppliers, and other affected andinterested parties. The districts shall actively engage in public education andoutreach to all affected local entities and their officials, as well as members ofthe public, in the planning process and in seeking input. During preparation,

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but prior to completion of the regional water supply plan, the district mustconduct at least one public workshop to discuss the technical data andmodeling tools anticipated to be used to support the regional water supplyplan. The district shall also hold several public meetings to communicate thestatus, overall conceptual intent, and impacts of the plan on existing andfuture reasonable-beneficial uses and related natural systems. During theplanning process, a local government may choose to prepare its own watersupply assessment to determine if existing water sources are adequate tomeet existing and projected reasonable-beneficial needs of the local govern-ment while sustaining water resources and related natural systems. Thelocal government shall submit such assessment, including the data andmethodology used, to the district. The district shall consider the localgovernment’s assessment during the formation of the plan. A determinationby the governing board that initiation of a regional water supply plan for aspecific planning region is not needed pursuant to this section shall besubject to s. 120.569. The governing board shall reevaluate such adetermination at least once every 5 years and shall initiate a regionalwater supply plan, if needed, pursuant to this subsection.

(2) Each regional water supply plan shall be based on at least a 20-yearplanning period and shall include, but need not be limited to:

(a) A water supply development component for each water supplyplanning region identified by the district which includes:

1. A quantification of the water supply needs for all existing and futurereasonable-beneficial uses within the planning horizon. The level-of-cer-tainty planning goal associated with identifying the water supply needs ofexisting and future reasonable-beneficial uses shall be based upon meetingthose needs for a 1-in-10-year drought event. Population projections used fordetermining public water supply needs must be based upon the bestavailable data. In determining the best available data, the district shallconsider the University of Florida’s Bureau of Economic and BusinessResearch (BEBR) medium population projections and any populationprojection data and analysis submitted by a local government pursuant tothe public workshop described in subsection (1) if the data and analysissupport the local government’s comprehensive plan. Any adjustment of ordeviation from the BEBR projections must be fully described, and theoriginal BEBR data must be presented along with the adjusted data.

2. A list of water supply development project options, including tradi-tional and alternative water supply project options, from which localgovernment, government-owned and privately owned utilities, regionalwater supply authorities, multijurisdictional water supply entities, self-suppliers, and others may choose for water supply development. In additionto projects listed by the district, such users may propose specific projects forinclusion in the list of alternative water supply projects. If such users proposea project to be listed as an alternative water supply project, the district shalldetermine whether it meets the goals of the plan, and, if so, it shall beincluded in the list. The total capacity of the projects included in the plan

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shall exceed the needs identified in subparagraph 1. and shall take intoaccount water conservation and other demand management measures, aswell as water resources constraints, including adopted minimum flows andlevels and water reservations. Where the district determines it is appro-priate, the plan should specifically identify the need for multijurisdictionalapproaches to project options that, based on planning level analysis, areappropriate to supply the intended uses and that, based on such analysis,appear to be permittable and financially and technically feasible. The list ofwater supply development options must contain provisions that recognizethat alternative water supply options for agricultural self-suppliers arelimited.

3. For each project option identified in subparagraph 2., the followingshall be provided:

a. An estimate of the amount of water to become available through theproject.

b. The timeframe in which the project option should be implemented andthe estimated planning-level costs for capital investment and operating andmaintaining the project.

c. An analysis of funding needs and sources of possible funding options.For alternative water supply projects the water management districts shallprovide funding assistance in accordance with s. 373.707(8).

d. Identification of the entity that should implement each project optionand the current status of project implementation.

(b) A water resource development component that includes:

1. A listing of those water resource development projects that supportwater supply development.

2. For each water resource development project listed:

a. An estimate of the amount of water to become available through theproject.

b. The timeframe in which the project option should be implemented andthe estimated planning-level costs for capital investment and for operatingand maintaining the project.

c. An analysis of funding needs and sources of possible funding options.

d. Identification of the entity that should implement each project optionand the current status of project implementation.

(c) The recovery and prevention strategy described in s. 373.0421(2).

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(d) A funding strategy for water resource development projects, whichshall be reasonable and sufficient to pay the cost of constructing orimplementing all of the listed projects.

(e) Consideration of how the project options addressed in paragraph (a)serve the public interest or save costs overall by preventing the loss ofnatural resources or avoiding greater future expenditures for water resourcedevelopment or water supply development. However, unless adopted by rule,these considerations do not constitute final agency action.

(f) The technical data and information applicable to each planning regionwhich are necessary to support the regional water supply plan.

(g) The minimum flows and levels established for water resources withineach planning region.

(h) Reservations of water adopted by rule pursuant to s. 373.223(4)within each planning region.

(i) Identification of surface waters or aquifers for which minimum flowsand levels are scheduled to be adopted.

(j) An analysis, developed in cooperation with the department, of areas orinstances in which the variance provisions of s. 378.212(1)(g) or s. 378.404(9)may be used to create water supply development or water resourcedevelopment projects.

(3) The water supply development component of a regional water supplyplan which deals with or affects public utilities and public water supply forthose areas served by a regional water supply authority and its membergovernments within the boundary of the Southwest Florida Water Manage-ment District shall be developed jointly by the authority and the district. Inareas not served by regional water supply authorities, or other multi-jurisdictional water supply entities, and where opportunities exist to meetwater supply needs more efficiently through multijurisdictional projectsidentified pursuant to paragraph (2)(a), water management districts aredirected to assist in developing multijurisdictional approaches to watersupply project development jointly with affected water utilities, specialdistricts, and local governments.

(4) The South Florida Water Management District shall include in itsregional water supply plan water resource and water supply developmentprojects that promote the elimination of wastewater ocean outfalls asprovided in s. 403.086(9).

(5) Governing board approval of a regional water supply plan shall not besubject to the rulemaking requirements of chapter 120. However, any portionof an approved regional water supply plan which affects the substantialinterests of a party shall be subject to s. 120.569.

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(6) Annually and in conjunction with the reporting requirements of s.373.536(6)(a)4., the department shall submit to the Governor and theLegislature a report on the status of regional water supply planning ineach district. The report shall include:

(a) A compilation of the estimated costs of and potential sources offunding for water resource development and water supply developmentprojects as identified in the water management district regional watersupply plans.

(b) The percentage and amount, by district, of district ad valorem taxrevenues or other district funds made available to develop alternative watersupplies.

(c) A description of each district’s progress toward achieving its waterresource development objectives, including the district’s implementation ofits 5-year water resource development work program.

(d) An assessment of the specific progress being made to implement eachalternative water supply project option chosen by the entities and identifiedfor implementation in the plan.

(e) An overall assessment of the progress being made to develop watersupply in each district, including, but not limited to, an explanation of howeach project, either alternative or traditional, will produce, contribute to, oraccount for additional water being made available for consumptive uses, anestimate of the quantity of water to be produced by each project, and anassessment of the contribution of the district’s regional water supply plan inproviding sufficient water to meet the needs of existing and future reason-able-beneficial uses for a 1-in-10 year drought event, as well as the needs ofthe natural systems.

(7) Nothing contained in the water supply development component of aregional water supply plan shall be construed to require local governments,government-owned or privately owned water utilities, special districts, self-suppliers, regional water supply authorities, multijurisdictional watersupply entities, or other water suppliers to select a water supply develop-ment project identified in the component merely because it is identified in theplan. Except as provided in s. 373.223(3) and (5), the plan may not be used inthe review of permits under part II of this chapter unless the plan or anapplicable portion thereof has been adopted by rule. However, this subsec-tion does not prohibit a water management district from employing the dataor other information used to establish the plan in reviewing permits underpart II, nor does it limit the authority of the department or governing boardunder part II.

(8) Where the water supply component of a water supply planning regionshows the need for one or more alternative water supply projects, the districtshall notify the affected local governments and make every reasonable effortto educate and involve local public officials in working toward solutions in

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conjunction with the districts and, where appropriate, other local andregional water supply entities.

(a) Within 6 months following approval or amendment of its regionalwater supply plan, each water management district shall notify by certifiedmail each entity identified in sub-subparagraph (2)(a)3.d. of that portion ofthe plan relevant to the entity. Upon request of such an entity, the watermanagement district shall appear before and present its findings andrecommendations to the entity.

(b) Within 1 year after the notification by a water management districtpursuant to paragraph (a), each entity identified in sub-subparagraph (2)(a)3.d. shall provide to the water management district written notification ofthe following: the alternative water supply projects or options identified inparagraph (2)(a) which it has developed or intends to develop, if any; anestimate of the quantity of water to be produced by each project; and thestatus of project implementation, including development of the financialplan, facilities master planning, permitting, and efforts in coordinatingmultijurisdictional projects, if applicable. The information provided in thenotification shall be updated annually, and a progress report shall beprovided by November 15 of each year to the water management district. Ifan entity does not intend to develop one or more of the alternative watersupply project options identified in the regional water supply plan, the entityshall propose, within 1 year after notification by a water managementdistrict pursuant to paragraph (a), another alternative water supply projectoption sufficient to address the needs identified in paragraph (2)(a) withinthe entity’s jurisdiction and shall provide an estimate of the quantity of waterto be produced by the project and the status of project implementation asdescribed in this paragraph. The entity may request that the watermanagement district consider the other project for inclusion in the regionalwater supply plan.

(9) For any regional water supply plan that is scheduled to be updatedbefore December 31, 2005, the deadline for such update shall be extended by1 year.

373.711 Technical assistance to local governments.—

(1) The water management districts shall assist local governments in thedevelopment and future revision of local government comprehensive planelements or public facilities report as required by s. 189.415, related to waterresource issues.

(2) By July 1, 1991, each water management district shall prepare andprovide information and data to assist local governments in the preparationand implementation of their local government comprehensive plans or publicfacilities report as required by s. 189.415, whichever is applicable. Suchinformation and data shall include, but not be limited to:

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(a) All information and data required in a public facilities reportpursuant to s. 189.415.

(b) A description of regulations, programs, and schedules implementedby the district.

(c) Identification of regulations, programs, and schedules undertaken orproposed by the district to further the State Comprehensive Plan.

(d) A description of surface water basins, including regulatory jurisdic-tions, flood-prone areas, existing and projected water quality in watermanagement district operated facilities, as well as surface water runoffcharacteristics and topography regarding flood plains, wetlands, andrecharge areas.

(e) A description of groundwater characteristics, including existing andplanned wellfield sites, existing and anticipated cones of influence, highlyproductive groundwater areas, aquifer recharge areas, deep well injectionzones, contaminated areas, an assessment of regional water resource needsand sources for the next 20 years, and water quality.

(f) The identification of existing and potential water management districtland acquisitions.

(g) Information reflecting the minimum flows for surface watercourses toavoid harm to water resources or the ecosystem and information reflectingthe minimum water levels for aquifers to avoid harm to water resources orthe ecosystem.

373.713 Regional water supply authorities.—

(1) By interlocal agreement between counties, municipalities, or specialdistricts, as applicable, pursuant to the Florida Interlocal Cooperation Act of1969, s. 163.01, and upon the approval of the Secretary of EnvironmentalProtection to ensure that such agreement will be in the public interest andcomplies with the intent and purposes of this act, regional water supplyauthorities may be created for the purpose of developing, recovering, storing,and supplying water for county or municipal purposes in such a manner aswill give priority to reducing adverse environmental effects of excessive orimproper withdrawals of water from concentrated areas. In approving saidagreement the Secretary of Environmental Protection shall consider, but notbe limited to, the following:

(a) Whether the geographic territory of the proposed authority is ofsufficient size and character to reduce the environmental effects of improperor excessive withdrawals of water from concentrated areas.

(b) The maximization of economic development of the water resourceswithin the territory of the proposed authority.

(c) The availability of a dependable and adequate water supply.

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(d) The ability of any proposed authority to design, construct, operate,and maintain water supply facilities in the locations, and at the timesnecessary, to ensure that an adequate water supply will be available to allcitizens within the authority.

(e) The effect or impact of any proposed authority on any municipality,county, or existing authority or authorities.

(f) The existing needs of the water users within the area of the authority.

(2) In addition to other powers and duties agreed upon, and notwith-standing the provisions of s. 163.01, such authority may:

(a) Upon approval of the electors residing in each county or municipalitywithin the territory to be included in any authority, levy ad valorem taxes,not to exceed 0.5 mill, pursuant to s. 9(b), Art. VII of the State Constitution.No tax authorized by this paragraph shall be levied in any county ormunicipality without an affirmative vote of the electors residing in suchcounty or municipality.

(b) Acquire water and water rights; develop, store, and transport water;provide, sell, and deliver water for county or municipal uses and purposes;and provide for the furnishing of such water and water service upon termsand conditions and at rates which will apportion to parties and nonparties anequitable share of the capital cost and operating expense of the authority’swork to the purchaser.

(c) Collect, treat, and recover wastewater.

(d) Not engage in local distribution.

(e) Exercise the power of eminent domain in the manner provided by lawfor the condemnation of private property for public use to acquire title to suchinterest in real property as is necessary to the exercise of the powers hereingranted, except water and water rights already devoted to reasonable andbeneficial use or any water production or transmission facilities owned byany county or municipality.

(f) Issue revenue bonds in the manner prescribed by the Revenue BondAct of 1953, as amended, part I, chapter 159, to be payable solely from fundsderived from the sale of water by the authority to any county or municipality.Such bonds may be additionally secured by the full faith and credit of anycounty or municipality, as provided by s. 159.16 or by a pledge of excise taxes,as provided by s. 159.19. For the purpose of issuing revenue bonds, anauthority shall be considered a “unit” as defined in s. 159.02(2) and as thatterm is used in the Revenue Bond Act of 1953, as amended. Such bonds maybe issued to finance the cost of acquiring properties and facilities for theproduction and transmission of water by the authority to any county ormunicipality, which cost shall include the acquisition of real property andeasements therein for such purposes. Such bonds may be in the form ofrefunding bonds to take up any outstanding bonds of the authority or of any

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county or municipality where such outstanding bonds are secured byproperties and facilities for production and transmission of water, whichproperties and facilities are being acquired by the authority. Refundingbonds may be issued to take up and refund all outstanding bonds of saidauthority that are subject to call and termination, and all bonds of saidauthority that are not subject to call or redemption, when the surrender ofsaid bonds can be procured from the holder thereof at prices satisfactory tothe authority. Such refunding bonds may be issued at any time when, in thejudgment of the authority, it will be to the best interest of the authorityfinancially or economically by securing a lower rate of interest on said bondsor by extending the time of maturity of said bonds or, for any other reason, inthe judgment of the authority, advantageous to said authority.

(g) Sue and be sued in its own name.

(h) Borrow money and incur indebtedness and issue bonds or otherevidence of such indebtedness.

(i) Join with one or more other public corporations for the purpose ofcarrying out any of its powers and for that purpose to contract with suchother public corporation or corporations for the purpose of financing suchacquisitions, construction, and operations. Such contracts may provide forcontributions to be made by each party thereto, for the division andapportionment of the expenses of such acquisitions and operations, andfor the division and apportionment of the benefits, services, and productstherefrom. Such contract may contain such other and further covenants andagreements as may be necessary and convenient to accomplish the purposeshereof.

(3) A regional water supply authority is authorized to develop, construct,operate, maintain, or contract for alternative sources of potable water,including desalinated water, and pipelines to interconnect authority sourcesand facilities, either by itself or jointly with a water management district;however, such alternative potable water sources, facilities, and pipelinesmay also be privately developed, constructed, owned, operated, and main-tained, in which event an authority and a water management district areauthorized to pledge and contribute their funds to reduce the wholesale costof water from such alternative sources of potable water supplied by anauthority to its member governments.

(4) When it is found to be in the public interest, for the public convenienceand welfare, for a public benefit, and necessary for carrying out the purposeof any regional water supply authority, any state agency, county, watercontrol district existing pursuant to chapter 298, water management districtexisting pursuant to this chapter, municipality, governmental agency, orpublic corporation in this state holding title to any interest in land is herebyauthorized, in its discretion, to convey the title to or dedicate land, title towhich is in such entity, including tax-reverted land, or to grant use-rightstherein, to any regional water supply authority created pursuant to thissection. Land granted or conveyed to such authority shall be for the public

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purposes of such authority and may be made subject to the condition that inthe event said land is not so used, or if used and subsequently its use for saidpurpose is abandoned, the interest granted shall cease as to such authorityand shall automatically revert to the granting entity.

(5) Each county, special district, or municipality that is a party to anagreement pursuant to subsection (1) shall have a preferential right topurchase water from the regional water supply authority for use by suchcounty, special district, or municipality.

(6) In carrying out the provisions of this section, any county whereinwater is withdrawn by the authority shall not be deprived, directly orindirectly, of the prior right to the reasonable and beneficial use of waterwhich is required adequately to supply the reasonable and beneficial needs ofthe county or any of the inhabitants or property owners therein.

(7) Upon a resolution adopted by the governing body of any county ormunicipality, the authority may, subject to a majority vote of its votingmembers, include such county or municipality in its regional water supplyauthority upon such terms and conditions as may be prescribed.

(8) The authority shall design, construct, operate, and maintain facilitiesin the locations and at the times necessary to ensure that an adequate watersupply will be available to all citizens within the authority.

(9) Where a water supply authority exists pursuant to this section or s.373.715 under a voluntary interlocal agreement that is consistent withrequirements in s. 373.715(1)(b) and receives or maintains consumptive usepermits under this voluntary agreement consistent with the water supplyplan, if any, adopted by the governing board, such authority shall be exemptfrom consideration by the governing board or department of the factorsspecified in s. 373.223(3)(a)-(g) and the submissions required by s. 373.229(3).Such exemptions shall apply only to water sources within the jurisdictionalareas of such voluntary water supply interlocal agreements.

373.715 Assistance to West Coast Regional Water Supply Authority.—

(1) It is the intent of the Legislature to authorize the implementation ofchanges in governance recommended by the West Coast Regional WaterSupply Authority in its reports to the Legislature dated February 1, 1997,and January 5, 1998. The authority and its member governments mayreconstitute the authority’s governance and rename the authority under avoluntary interlocal agreement with a term of not less than 20 years. Theinterlocal agreement must comply with this subsection as follows:

(a) The authority and its member governments agree that cooperativeefforts are mandatory to meet their water needs in a manner that willprovide adequate and dependable supplies of water where needed withoutresulting in adverse environmental effects upon the areas from which thewater is withdrawn or otherwise produced.

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(b) In accordance with s. 4, Art. VIII of the State Constitution andnotwithstanding s. 163.01, the interlocal agreement may include thefollowing terms, which are considered approved by the parties without avote of their electors, upon execution of the interlocal agreement by allmember governments and upon satisfaction of all conditions precedent in theinterlocal agreement:

1. All member governments shall relinquish to the authority theirindividual rights to develop potable water supply sources, except asotherwise provided in the interlocal agreement;

2. The authority shall be the sole and exclusive wholesale potable watersupplier for all member governments; and

3. The authority shall have the absolute and unequivocal obligation tomeet the wholesale needs of the member governments for potable water.

4. A member government may not restrict or prohibit the use of landwithin a member’s jurisdictional boundaries by the authority for watersupply purposes through use of zoning, land use, comprehensive planning, orother form of regulation.

5. Amember government may not impose any tax, fee, or charge upon theauthority in conjunction with the production or supply of water not otherwiseprovided for in the interlocal agreement.

6. The authority may use the powers provided in part II of chapter 159 forfinancing and refinancing water treatment, production, or transmissionfacilities, including, but not limited to, desalinization facilities. All suchwater treatment, production, or transmission facilities are considered a“manufacturing plant” for purposes of s. 159.27(5) and serve a paramountpublic purpose by providing water to citizens of the state.

7. A member government and any governmental or quasi-judicial boardor commission established by local ordinance or general or special law wherethe governing membership of such board or commission is shared, in whole orin part, or appointed by a member government agreeing to be bound by theinterlocal agreement shall be limited to the procedures set forth thereinregarding actions that directly or indirectly restrict or prohibit the use oflands or other activities related to the production or supply of water.

(c) The authority shall acquire full or lesser interests in all regionallysignificant member government wholesale water supply facilities andtangible assets and each member government shall convey such interestsin the facilities and assets to the authority, at an agreed value.

(d) The authority shall charge a uniform per gallon wholesale rate tomember governments for the wholesale supply of potable water. All capital,operation, maintenance, and administrative costs for existing facilities andacquired facilities, authority master water plan facilities, and other future

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projects must be allocated to member governments based on water usage atthe uniform per gallon wholesale rate.

(e) The interlocal agreement may include procedures for resolving theparties’ differences regarding water management district proposed agencyaction in the water use permitting process within the authority. Suchprocedures should minimize the potential for litigation and include alter-native dispute resolution. Any governmental or quasi-judicial board orcommission established by local ordinance or general or special law wherethe governing members of such board or commission is shared, in whole or inpart, or appointed by a member government, may agree to be bound by thedispute resolution procedures set forth in the interlocal agreement.

(f) Upon execution of the voluntary interlocal agreement provided forherein, the authority shall jointly develop with the Southwest Florida WaterManagement District alternative sources of potable water and transmissionpipelines to interconnect regionally significant water supply sources andfacilities of the authority in amounts sufficient to meet the needs of allmember governments for a period of at least 20 years and for naturalsystems. Nothing herein, however, shall preclude the authority and itsmember governments from developing traditional water sources pursuant tothe voluntary interlocal agreement. Development and construction costs foralternative source facilities, which may include a desalination facility andsignificant regional interconnects, must be borne as mutually agreed to byboth the authority and the Southwest Florida Water Management District.Nothing herein shall preclude authority or district cost sharing with privateentities for the construction or ownership of alternative source facilities. ByDecember 31, 1997, the authority and the Southwest Florida WaterManagement District shall enter into a mutually acceptable agreementdetailing the development and implementation of directives contained in thisparagraph. Nothing in this section shall be construed to modify the rights orresponsibilities of the authority or its member governments, except asotherwise provided herein, or of the Southwest Florida Water ManagementDistrict or the department pursuant to this chapter or chapter 403 and asotherwise set forth by statutes.

(g) Unless otherwise provided in the interlocal agreement, the authorityshall be governed by a board of commissioners consisting of nine votingmembers, all of whom must be elected officers, as follows:

1. Three members fromHillsborough County whomust be selected by thecounty commission; provided, however, that one member shall be selected bythe Mayor of Tampa in the event that the City of Tampa elects to be amember of the authority;

2. Three members from Pasco County, two of whom must be selected bythe county commission and one of whommust be selected by the City Councilof New Port Richey; and

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3. Three members from Pinellas County, two of whom must be selectedby the county commission and one of whom must be selected by the CityCouncil of St. Petersburg.

Except as otherwise provided in this section or in the voluntary interlocalagreement between the member governments, a majority vote shall bind theauthority and its member governments in all matters relating to the fundingof wholesale water supply, production, delivery, and related activities.

(2) The provisions of this section supersede any conflicting provisionscontained in all other general or special laws or provisions thereof as theymay apply directly or indirectly to the exclusivity of water supply orwithdrawal of water, including provisions relating to the environmentaleffects, if any, in conjunction with the production and supply of potablewater, and the provisions of this section are intended to be a completerevision of all laws related to a regional water supply authority created unders. 373.713 and this section.

(3) In lieu of the provisions in s. 373.713(2)(a), the Southwest FloridaWater Management District shall assist the West Coast Regional WaterSupply Authority for a period of 5 years, terminating December 31, 1981, bylevying an ad valorem tax, upon request of the authority, of not more than0.05 mill on all taxable property within the limits of the authority. Duringsuch period the corresponding basin board ad valorem tax levies shall bereduced accordingly.

(4) The authority shall prepare its annual budget in the same manner asprescribed for the preparation of basin budgets, but such authority budgetshall not be subject to review by the respective basin boards or by thegoverning board of the district.

(5) The annual millage for the authority shall be the amount required toraise the amount called for by the annual budget when applied to the totalassessment on all taxable property within the limits of the authority, asdetermined for county taxing purposes.

(6) The authority may, by resolution, request the governing board of thedistrict to levy ad valorem taxes within the boundaries of the authority. Uponreceipt of such request, together with formal certification of the adoption ofits annual budget and of the required tax levy, the authority tax levy shall bemade by the governing board of the district to finance authority functions.

(7) The taxes provided for in this section shall be extended by theproperty appraiser on the county tax roll in each county within, or partlywithin, the authority boundaries and shall be collected by the tax collector inthe same manner and time as county taxes, and the proceeds therefrom paidto the district which shall forthwith pay them over to the authority. Untilpaid, such taxes shall be a lien on the property against which assessed andenforceable in like manner as county taxes. The property appraisers, taxcollectors, and clerks of the circuit court of the respective counties shall be

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entitled to compensation for services performed in connection with suchtaxes at the same rates as apply to county taxes.

(8) The governing board of the district shall not be responsible for anyactions or lack of actions by the authority.

Section 2. Subsection (13) of section 120.52, Florida Statutes, is amendedto read:

120.52 Definitions.—As used in this act:

(13) “Party” means:

(a) Specifically named persons whose substantial interests are beingdetermined in the proceeding.

(b) Any other person who, as a matter of constitutional right, provision ofstatute, or provision of agency regulation, is entitled to participate in wholeor in part in the proceeding, or whose substantial interests will be affected byproposed agency action, and who makes an appearance as a party.

(c) Any other person, including an agency staff member, allowed by theagency to intervene or participate in the proceeding as a party. An agencymay by rule authorize limited forms of participation in agency proceedingsfor persons who are not eligible to become parties.

(d) Any county representative, agency, department, or unit funded andauthorized by state statute or county ordinance to represent the interests ofthe consumers of a county, when the proceeding involves the substantialinterests of a significant number of residents of the county and the board ofcounty commissioners has, by resolution, authorized the representative,agency, department, or unit to represent the class of interested persons. Theauthorizing resolution shall apply to a specific proceeding and to appeals andancillary proceedings thereto, and it shall not be required to state the namesof the persons whose interests are to be represented.

The term “party” does not include a member government of a regional watersupply authority or a governmental or quasi-judicial board or commissionestablished by local ordinance or special or general law where the governingmembership of such board or commission is shared with, in whole or in part,or appointed by a member government of a regional water supply authorityin proceedings under s. 120.569, s. 120.57, or s. 120.68, to the extent that aninterlocal agreement under ss. 163.01 and 373.713 373.1962 exists in whichthe member government has agreed that its substantial interests are notaffected by the proceedings or that it is to be bound by alternative disputeresolution in lieu of participating in the proceedings. This exclusion appliesonly to those particular types of disputes or controversies, if any, identified inan interlocal agreement.

Section 3. Subsection (13) of section 163.3167, Florida Statutes, isamended to read:

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163.3167 Scope of act.—

(13) Each local government shall address in its comprehensive plan, asenumerated in this chapter, the water supply sources necessary to meet andachieve the existing and projected water use demand for the establishedplanning period, considering the applicable plan developed pursuant to s.373.709 373.0361.

Section 4. Paragraph (a) of subsection (4) and paragraphs (c), (d), and (h)of subsection (6) of section 163.3177, Florida Statutes, are amended to read:

163.3177 Required and optional elements of comprehensive plan; studiesand surveys.—

(4)(a) Coordination of the local comprehensive plan with the comprehen-sive plans of adjacent municipalities, the county, adjacent counties, or theregion; with the appropriate water management district’s regional watersupply plans approved pursuant to s. 373.709 373.0361; with adopted rulespertaining to designated areas of critical state concern; and with the statecomprehensive plan shall be a major objective of the local comprehensiveplanning process. To that end, in the preparation of a comprehensive plan orelement thereof, and in the comprehensive plan or element as adopted, thegoverning body shall include a specific policy statement indicating therelationship of the proposed development of the area to the comprehensiveplans of adjacent municipalities, the county, adjacent counties, or the regionand to the state comprehensive plan, as the case may require and as suchadopted plans or plans in preparation may exist.

(6) In addition to the requirements of subsections (1)-(5) and (12), thecomprehensive plan shall include the following elements:

(c) A general sanitary sewer, solid waste, drainage, potable water, andnatural groundwater aquifer recharge element correlated to principles andguidelines for future land use, indicating ways to provide for future potablewater, drainage, sanitary sewer, solid waste, and aquifer recharge protectionrequirements for the area. The element may be a detailed engineering planincluding a topographic map depicting areas of prime groundwater recharge.The element shall describe the problems and needs and the general facilitiesthat will be required for solution of the problems and needs. The elementshall also include a topographic map depicting any areas adopted by aregional water management district as prime groundwater recharge areasfor the Floridan or Biscayne aquifers. These areas shall be given specialconsideration when the local government is engaged in zoning or consideringfuture land use for said designated areas. For areas served by septic tanks,soil surveys shall be provided which indicate the suitability of soils for septictanks. Within 18 months after the governing board approves an updatedregional water supply plan, the element must incorporate the alternativewater supply project or projects selected by the local government from thoseidentified in the regional water supply plan pursuant to s. 373.709(2)(a)373.0361(2)(a) or proposed by the local government under s. 373.709(8)(b)

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373.0361(8)(b). If a local government is located within two water manage-ment districts, the local government shall adopt its comprehensive planamendment within 18 months after the later updated regional water supplyplan. The element must identify such alternative water supply projects andtraditional water supply projects and conservation and reuse necessary tomeet the water needs identified in s. 373.709(2)(a) 373.0361(2)(a) within thelocal government’s jurisdiction and include a work plan, covering at least a 10year planning period, for building public, private, and regional water supplyfacilities, including development of alternative water supplies, which areidentified in the element as necessary to serve existing and new develop-ment. The work plan shall be updated, at aminimum, every 5 years within 18months after the governing board of a water management district approvesan updated regional water supply plan. Amendments to incorporate the workplan do not count toward the limitation on the frequency of adoption ofamendments to the comprehensive plan. Local governments, public andprivate utilities, regional water supply authorities, special districts, andwater management districts are encouraged to cooperatively plan for thedevelopment of multijurisdictional water supply facilities that are sufficientto meet projected demands for established planning periods, including thedevelopment of alternative water sources to supplement traditional sourcesof groundwater and surface water supplies.

(d) A conservation element for the conservation, use, and protection ofnatural resources in the area, including air, water, water recharge areas,wetlands, waterwells, estuarine marshes, soils, beaches, shores, flood plains,rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat,minerals, and other natural and environmental resources, including factorsthat affect energy conservation. Local governments shall assess theircurrent, as well as projected, water needs and sources for at least a 10-year period, considering the appropriate regional water supply planapproved pursuant to s. 373.709 373.0361, or, in the absence of an approvedregional water supply plan, the district water management plan approvedpursuant to s. 373.036(2). This information shall be submitted to theappropriate agencies. The land use map or map series contained in thefuture land use element shall generally identify and depict the following:

1. Existing and planned waterwells and cones of influence whereapplicable.

2. Beaches and shores, including estuarine systems.

3. Rivers, bays, lakes, flood plains, and harbors.

4. Wetlands.

5. Minerals and soils.

6. Energy conservation.

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The land uses identified on such maps shall be consistent with applicablestate law and rules.

(h)1. An intergovernmental coordination element showing relationshipsand stating principles and guidelines to be used in the accomplishment ofcoordination of the adopted comprehensive plan with the plans of schoolboards, regional water supply authorities, and other units of local govern-ment providing services but not having regulatory authority over the use ofland, with the comprehensive plans of adjacent municipalities, the county,adjacent counties, or the region, with the state comprehensive plan and withthe applicable regional water supply plan approved pursuant to s. 373.709373.0361, as the case may require and as such adopted plans or plans inpreparation may exist. This element of the local comprehensive plan shalldemonstrate consideration of the particular effects of the local plan, whenadopted, upon the development of adjacent municipalities, the county,adjacent counties, or the region, or upon the state comprehensive plan, asthe case may require.

a. The intergovernmental coordination element shall provide proceduresto identify and implement joint planning areas, especially for the purpose ofannexation, municipal incorporation, and joint infrastructure service areas.

b. The intergovernmental coordination element shall provide for recogni-tion of campus master plans prepared pursuant to s. 1013.30 and airportmaster plans under paragraph(k).

c. The intergovernmental coordination element shall provide for adispute resolution process as established pursuant to s. 186.509 for bringingto closure in a timely manner intergovernmental disputes.

d. The intergovernmental coordination element shall provide for inter-local agreements as established pursuant to s. 333.03(1)(b).

2. The intergovernmental coordination element shall further stateprinciples and guidelines to be used in the accomplishment of coordinationof the adopted comprehensive plan with the plans of school boards and otherunits of local government providing facilities and services but not havingregulatory authority over the use of land. In addition, the intergovernmentalcoordination element shall describe joint processes for collaborative planningand decisionmaking on population projections and public school siting, thelocation and extension of public facilities subject to concurrency, and sitingfacilities with countywide significance, including locally unwanted land useswhose nature and identity are established in an agreement. Within 1 year ofadopting their intergovernmental coordination elements, each county, all themunicipalities within that county, the district school board, and any unit oflocal government service providers in that county shall establish byinterlocal or other formal agreement executed by all affected entities, thejoint processes described in this subparagraph consistent with their adoptedintergovernmental coordination elements.

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3. To foster coordination between special districts and local general-purpose governments as local general-purpose governments implement localcomprehensive plans, each independent special district must submit a publicfacilities report to the appropriate local government as required by s.189.415.

4.a. Local governments shall execute an interlocal agreement with thedistrict school board, the county, and nonexempt municipalities pursuant tos. 163.31777. The local government shall amend the intergovernmentalcoordination element to provide that coordination between the localgovernment and school board is pursuant to the agreement and shallstate the obligations of the local government under the agreement.

b. Plan amendments that comply with this subparagraph are exemptfrom the provisions of s. 163.3187(1).

5. The state land planning agency shall establish a schedule for phasedcompletion and transmittal of plan amendments to implement subpara-graphs 1., 2., and 3. from all jurisdictions so as to accomplish their adoptionby December 31, 1999. A local government may complete and transmit itsplan amendments to carry out these provisions prior to the scheduled dateestablished by the state land planning agency. The plan amendments areexempt from the provisions of s. 163.3187(1).

6. By January 1, 2004, any county having a population greater than100,000, and themunicipalities and special districts within that county, shallsubmit a report to the Department of Community Affairs which:

a. Identifies all existing or proposed interlocal service delivery agree-ments regarding the following: education; sanitary sewer; public safety; solidwaste; drainage; potable water; parks and recreation; and transportationfacilities.

b. Identifies any deficits or duplication in the provision of services withinits jurisdiction, whether capital or operational. Upon request, the Depart-ment of Community Affairs shall provide technical assistance to the localgovernments in identifying deficits or duplication.

7. Within 6 months after submission of the report, the Department ofCommunity Affairs shall, through the appropriate regional planning council,coordinate a meeting of all local governments within the regional planningarea to discuss the reports and potential strategies to remedy any identifieddeficiencies or duplications.

8. Each local government shall update its intergovernmental coordina-tion element based upon the findings in the report submitted pursuant tosubparagraph 6. The report may be used as supporting data and analysis forthe intergovernmental coordination element.

Section 5. Paragraph (l) of subsection (2) of section 163.3191, FloridaStatutes, is amended to read:

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163.3191 Evaluation and appraisal of comprehensive plan.—

(2) The report shall present an evaluation and assessment of thecomprehensive plan and shall contain appropriate statements to updatethe comprehensive plan, including, but not limited to, words, maps,illustrations, or other media, related to:

(l) The extent to which the local government has been successful inidentifying alternative water supply projects and traditional water supplyprojects, including conservation and reuse, necessary to meet the waterneeds identified in s. 373.709(2)(a) 373.0361(2)(a) within the local govern-ment’s jurisdiction. The report must evaluate the degree to which the localgovernment has implemented the work plan for building public, private, andregional water supply facilities, including development of alternative watersupplies, identified in the element as necessary to serve existing and newdevelopment.

Section 6. Paragraphs (c) and (d) of subsection (4) of section 189.404,Florida Statutes, are amended to read:

189.404 Legislative intent for the creation of independent specialdistricts; special act prohibitions; model elements and other requirements;general-purpose local government/Governor and Cabinet creation author-izations.—

(4) LOCAL GOVERNMENT/GOVERNOR AND CABINET CREATIONAUTHORIZATIONS.—Except as otherwise authorized by general law, onlythe Legislature may create independent special districts.

(c) The Governor and Cabinet may create an independent special districtwhich shall be established by rule in accordance with s. 190.005 or asotherwise authorized in general law. The Governor and Cabinet may alsoapprove the establishment of a charter for the creation of an independentspecial district which shall be in accordance with s. 373.713 373.1962, or asotherwise authorized in general law.

(d)1. Any combination of two or more counties may create a regionalspecial district which shall be established in accordance with s. 950.001, or asotherwise authorized in general law.

2. Any combination of two or more counties or municipalities may createa regional special district which shall be established in accordance with s.373.713 373.1962, or as otherwise authorized by general law.

3. Any combination of two or more counties, municipalities, or otherpolitical subdivisions may create a regional special district in accordancewith s. 163.567, or as otherwise authorized in general law.

Section 7. Subsection (3) of section 189.4155, Florida Statutes, isamended to read:

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189.4155 Activities of special districts; local government comprehensiveplanning.—

(3) The provisions of this section shall not apply to water managementdistricts created pursuant to s. 373.069, to regional water supply authoritiescreated pursuant to s. 373.713 373.1962, or to spoil disposal sites owned orused by the Federal Government.

Section 8. Section 189.4156, Florida Statutes, is amended to read:

189.4156 Water management district technical assistance; local govern-ment comprehensive planning.—Water management districts shall assistlocal governments in the development of local government comprehensiveplan elements related to water resource issues as required by s. 373.711373.0391.

Section 9. Subsection (7) of section 367.021, Florida Statutes, is amendedto read:

367.021 Definitions.—As used in this chapter, the following words orterms shall have the meanings indicated:

(7) “Governmental authority”means a political subdivision, as defined bys. 1.01(8), a regional water supply authority created pursuant to s. 373.713373.1962, or a nonprofit corporation formed for the purpose of acting onbehalf of a political subdivision with respect to a water or wastewater facility.

Section 10. Subsections (1) and (17) of section 373.019, Florida Statutes,are amended to read:

373.019 Definitions.—When appearing in this chapter or in any rule,regulation, or order adopted pursuant thereto, the term:

(1) “Alternative water supplies” means salt water; brackish surface andgroundwater; surface water captured predominately during wet-weatherflows; sources made available through the addition of new storage capacityfor surface or groundwater, water that has been reclaimed after one or morepublic supply, municipal, industrial, commercial, or agricultural uses; thedownstream augmentation of water bodies with reclaimed water; storm-water; and any other water supply source that is designated as nontradi-tional for a water supply planning region in the applicable regional watersupply plan.

(17) “Regional water supply plan” means a detailed water supply plandeveloped by a governing board under s. 373.709 s. 373.0361.

Section 11. Paragraph (b) of subsection (2) and paragraph (b) ofsubsection (7) of section 373.036, Florida Statutes, are amended to read:

373.036 Florida water plan; district water management plans.—

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(2) DISTRICT WATER MANAGEMENT PLANS.—

(b) The district water management plan shall include, but not be limitedto:

1. The scientific methodologies for establishing minimum flows andlevels under s. 373.042, and all established minimum flows and levels.

2. Identification of one or more water supply planning regions that singlyor together encompass the entire district.

3. Technical data and information prepared under s. 373.711 373.0391.

4. A districtwide water supply assessment, to be completed no later thanJuly 1, 1998, which determines for each water supply planning region:

a. Existing legal uses, reasonably anticipated future needs, and existingand reasonably anticipated sources of water and conservation efforts; and

b. Whether existing and reasonably anticipated sources of water andconservation efforts are adequate to supply water for all existing legal usesand reasonably anticipated future needs and to sustain the water resourcesand related natural systems.

5. Any completed regional water supply plans.

(7) CONSOLIDATED WATER MANAGEMENT DISTRICT ANNUALREPORT.—

(b) The consolidated annual report shall contain the following elements,as appropriate to that water management district:

1. A district water management plan annual report or the annual workplan report allowed in subparagraph (2)(e)4.

2. The department-approved minimum flows and levels annual prioritylist and schedule required by s. 373.042(2).

3. The annual 5-year capital improvements plan required by s.373.536(6)(a)3.

4. The alternative water supplies annual report required by s.373.707(8)(n) 373.1961(3)(n).

5. The final annual 5-year water resource development work programrequired by s. 373.536(6)(a)4.

6. The Florida Forever Water Management District Work Plan annualreport required by s. 373.199(7).

7. The mitigation donation annual report required by s. 373.414(1)(b)2.

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Section 12. Paragraphs (a) and (e) of subsection (4) of section 373.0363,Florida Statutes, are amended to read:

373.0363 Southern Water Use Caution Area Recovery Strategy.—

(4) The West-Central Florida Water Restoration Action Plan includes:

(a) The Central West Coast Surface Water Enhancement Initiative. Thepurpose of this initiative is to make additional surface waters available forpublic supply through restoration of surface waters, natural water flows, andfreshwater wetland communities. This initiative is designed to allow limitson groundwater withdrawals in order to slow the rate of saltwater intrusion.The initiative shall be an ongoing program in cooperation with the PeaceRiver-Manasota Regional Water Supply Authority created under s. 373.713373.1962.

(e) The Central Florida Water Resource Development Initiative. Thepurpose of this initiative is to create and implement a long-term plan thattakes a comprehensive approach to limit ground water withdrawals in theSouthern Water Use Caution Area and to identify and develop alternativewater supplies for Polk County. The project components developed pursuantto this initiative are eligible for state and regional funding under s. 373.707373.196 as an alternative water supply, as defined in s. 373.019, or as asupplemental water supply under the rules of the Southwest Florida WaterManagement District or the South Florida Water Management District. Theinitiative shall be implemented by the district as an ongoing program incooperation with Polk County and the South Florida Water ManagementDistrict.

Section 13. Subsection (2) of section 373.0421, Florida Statutes, isamended to read:

373.0421 Establishment and implementation of minimum flows andlevels.—

(2) If the existing flow or level in a water body is below, or is projected tofall within 20 years below, the applicable minimum flow or level establishedpursuant to s. 373.042, the department or governing board, as part of theregional water supply plan described in s. 373.709 373.0361, shall expedi-tiously implement a recovery or prevention strategy, which includes thedevelopment of additional water supplies and other actions, consistent withthe authority granted by this chapter, to:

(a) Achieve recovery to the established minimum flow or level as soon aspracticable; or

(b) Prevent the existing flow or level from falling below the establishedminimum flow or level.

The recovery or prevention strategy shall include phasing or a timetablewhich will allow for the provision of sufficient water supplies for all existing

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and projected reasonable-beneficial uses, including development of addi-tional water supplies and implementation of conservation and otherefficiency measures concurrent with, to the extent practical, and to offset,reductions in permitted withdrawals, consistent with the provisions of thischapter.

Section 14. Subsection (4) of section 373.0695, Florida Statutes, isamended to read:

373.0695 Duties of basin boards; authorized expenditures.—

(4) In the exercise of the duties and powers granted herein, the basinboards shall be subject to all the limitations and restrictions imposed on thewater management districts in s. 373.703 373.1961.

Section 15. Subsections (3) and (5) of section 373.223, Florida Statutes,are amended to read:

373.223 Conditions for a permit.—

(3) Except for the transport and use of water supplied by the Central andSouthern Florida Flood Control Project, and anywhere in the state when thetransport and use of water is supplied exclusively for bottled water as definedin s. 500.03(1)(d), any water use permit applications pending as of April 1,1998, with the Northwest Florida Water Management District and self-suppliers of water for which the proposed water source and area of use orapplication are located on contiguous private properties, when evaluatingwhether a potential transport and use of ground or surface water acrosscounty boundaries is consistent with the public interest, pursuant toparagraph (1)(c), the governing board or department shall consider:

(a) The proximity of the proposed water source to the area of use orapplication.

(b) All impoundments, streams, groundwater sources, or watercoursesthat are geographically closer to the area of use or application than theproposed source, and that are technically and economically feasible for theproposed transport and use.

(c) All economically and technically feasible alternatives to the proposedsource, including, but not limited to, desalination, conservation, reuse ofnonpotable reclaimed water and stormwater, and aquifer storage andrecovery.

(d) The potential environmental impacts that may result from thetransport and use of water from the proposed source, and the potentialenvironmental impacts that may result from use of the other water sourcesidentified in paragraphs (b) and (c).

(e) Whether existing and reasonably anticipated sources of water andconservation efforts are adequate to supply water for existing legal uses and

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reasonably anticipated future needs of the water supply planning region inwhich the proposed water source is located.

(f) Consultations with local governments affected by the proposedtransport and use.

(g) The value of the existing capital investment in water-relatedinfrastructure made by the applicant.

Where districtwide water supply assessments and regional water supplyplans have been prepared pursuant to ss. 373.036 and 373.709 373.0361, thegoverning board or the department shall use the applicable plans andassessments as the basis for its consideration of the applicable factors in thissubsection.

(5) In evaluating an application for consumptive use of water whichproposes the use of an alternative water supply project as described in theregional water supply plan and provides reasonable assurances of theapplicant’s capability to design, construct, operate, and maintain the project,the governing board or department shall presume that the alternative watersupply use is consistent with the public interest under paragraph (1)(c).However, where the governing board identifies the need for a multijurisdic-tional water supply entity or regional water supply authority to develop thealternative water supply project pursuant to s. 373.709(2)(a)2. 373.0361(2)(a)2., the presumption shall be accorded only to that use proposed by such entityor authority. This subsection does not effect evaluation of the use pursuant tothe provisions of paragraphs (1)(a) and (b), subsections (2) and (3), and ss.373.2295 and 373.233.

Section 16. Section 373.2234, Florida Statutes, is amended to read:

373.2234 Preferred water supply sources.—The governing board of awater management district is authorized to adopt rules that identifypreferred water supply sources for consumptive uses for which there issufficient data to establish that a preferred source will provide a substantialnew water supply to meet the existing and projected reasonable-beneficialuses of a water supply planning region identified pursuant to s. 373.709(1)373.0361(1), while sustaining existing water resources and natural systems.At a minimum, such rules must contain a description of the preferred watersupply source and an assessment of the water the preferred source isprojected to produce. If an applicant proposes to use a preferred water supplysource, that applicant’s proposed water use is subject to s. 373.223(1), exceptthat the proposed use of a preferred water supply source must be consideredby a water management district when determining whether a permitapplicant’s proposed use of water is consistent with the public interestpursuant to s. 373.223(1)(c). A consumptive use permit issued for the use of apreferred water supply source must be granted, when requested by theapplicant, for at least a 20-year period and may be subject to the compliancereporting provisions of s. 373.236(4). Nothing in this section shall beconstrued to exempt the use of preferred water supply sources from the

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provisions of ss. 373.016(4) and 373.223(2) and (3), or be construed to providethat permits issued for the use of a nonpreferred water supply source must beissued for a duration of less than 20 years or that the use of a nonpreferredwater supply source is not consistent with the public interest. Additionally,nothing in this section shall be interpreted to require the use of a preferredwater supply source or to restrict or prohibit the use of a nonpreferred watersupply source. Rules adopted by the governing board of a water managementdistrict to implement this section shall specify that the use of a preferredwater supply source is not required and that the use of a nonpreferred watersupply source is not restricted or prohibited.

Section 17. Subsection (3) of section 373.229, Florida Statutes, isamended to read:

373.229 Application for permit.—

(3) In addition to the information required in subsection (1), all permitapplications filed with the governing board or the department which proposethe transport and use of water across county boundaries shall includeinformation pertaining to factors to be considered, pursuant to s. 373.223(3),unless exempt under s. 373.713(9) 373.1962(9).

Section 18. Paragraph (a) of subsection (6) of section 373.236, FloridaStatutes, is amended to read:

373.236 Duration of permits; compliance reports.—

(6)(a) The Legislature finds that the need for alternative water supplydevelopment projects to meet anticipated public water supply demands of thestate is so important that it is essential to encourage participation in andcontribution to these projects by private-rural-land owners who character-istically have relatively modest near-term water demands but substantiallyincreasing demands after the 20-year planning period in s. 373.709 373.0361.Therefore, where such landowners make extraordinary contributions oflands or construction funding to enable the expeditious implementation ofsuch projects, water management districts and the department may grantpermits for such projects for a period of up to 50 years to municipalities,counties, special districts, regional water supply authorities, multijurisdic-tional water supply entities, and publicly or privately owned utilities, withthe exception of any publicly or privately owned utilities created for or by aprivate landowner after April 1, 2008, which have entered into an agreementwith the private landowner for the purpose of more efficiently pursuingalternative public water supply development projects identified in a district’sregional water supply plan and meeting water demands of both the applicantand the landowner.

Section 19. Paragraph (a) of subsection (6) of section 373.536, FloridaStatutes, is amended to read:

373.536 District budget and hearing thereon.—

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(6) FINAL BUDGET; ANNUAL AUDIT; CAPITAL IMPROVEMENTSPLAN; WATER RESOURCE DEVELOPMENT WORK PROGRAM.—

(a) Each district must, by the date specified for each item, furnish copiesof the following documents to the Governor, the President of the Senate, theSpeaker of the House of Representatives, the chairs of all legislativecommittees and subcommittees having substantive or fiscal jurisdictionover the districts, as determined by the President of the Senate or theSpeaker of the House of Representatives as applicable, the secretary of thedepartment, and the governing board of each county in which the district hasjurisdiction or derives any funds for the operations of the district:

1. The adopted budget, to be furnished within 10 days after its adoption.

2. A financial audit of its accounts and records, to be furnished within 10days after its acceptance by the governing board. The audit must beconducted in accordance with the provisions of s. 11.45 and the rules adoptedthereunder. In addition to the entities named above, the district mustprovide a copy of the audit to the Auditor General within 10 days after itsacceptance by the governing board.

3. A 5-year capital improvements plan, to be included in the consolidatedannual report required by s. 373.036(7). The plan must include expectedsources of revenue for planned improvements and must be prepared in amanner comparable to the fixed capital outlay format set forth in s. 216.043.

4. A 5-year water resource development work program to be furnishedwithin 30 days after the adoption of the final budget. The program mustdescribe the district’s implementation strategy for the water resourcedevelopment component of each approved regional water supply plandeveloped or revised under s. 373.709 373.0361. The work program mustaddress all the elements of the water resource development component in thedistrict’s approved regional water supply plans and must identify whichprojects in the work program will provide water, explain how each waterresource development project will produce additional water available forconsumptive uses, estimate the quantity of water to be produced by eachproject, and provide an assessment of the contribution of the district’sregional water supply plans in providing sufficient water to meet the watersupply needs of existing and future reasonable-beneficial uses for a 1-in-10-year drought event. Within 30 days after its submittal, the department shallreview the proposed work program and submit its findings, questions, andcomments to the district. The reviewmust include a written evaluation of theprogram’s consistency with the furtherance of the district’s approvedregional water supply plans, and the adequacy of proposed expenditures.As part of the review, the department shall give interested parties theopportunity to provide written comments on each district’s proposed workprogram. Within 45 days after receipt of the department’s evaluation, thegoverning board shall state in writing to the department which changesrecommended in the evaluation it will incorporate into its work programsubmitted as part of the March 1 consolidated annual report required by s.

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373.036(7) or specify the reasons for not incorporating the changes. Thedepartment shall include the district’s responses in a final evaluation reportand shall submit a copy of the report to the Governor, the President of theSenate, and the Speaker of the House of Representatives.

Section 20. Subsection (11) of section 373.59, Florida Statutes, isamended to read:

373.59 Water Management Lands Trust Fund.—

(11) Notwithstanding any provision of this section to the contrary, thegoverning board of a water management district may request, and theSecretary of Environmental Protection shall release upon such request,moneys allocated to the districts pursuant to subsection (8) for purposesconsistent with the provisions of s. 373.709 373.0361, s. 373.705 373.0831, s.373.139, or ss. 373.451-373.4595 and for legislatively authorized landacquisition and water restoration initiatives. No funds may be used pursuantto this subsection until necessary debt service obligations, requirements forpayments in lieu of taxes, and land management obligations that may berequired by this chapter are provided for.

Section 21. Paragraph (g) of subsection (1) of section 378.212, FloridaStatutes, is amended to read:

378.212 Variances.—

(1) Upon application, the secretary may grant a variance from theprovisions of this part or the rules adopted pursuant thereto. Variances andrenewals thereof may be granted for any one of the following reasons:

(g) To accommodate reclamation that provides water supply develop-ment or water resource development not inconsistent with the applicableregional water supply plan approved pursuant to s. 373.709 373.0361,provided adverse impacts are not caused to the water resources in the basin.A variance may also be granted from the requirements of part IV of chapter373, or the rules adopted thereunder, when a project provides an improve-ment in water availability in the basin and does not cause adverse impacts towater resources in the basin.

Section 22. Subsection (9) of section 378.404, Florida Statutes, isamended to read:

378.404 Department of Environmental Protection; powers and duties.The department shall have the following powers and duties:

(9) To grant variances from the provisions of this part to accommodatereclamation that provides for water supply development or water resourcedevelopment not inconsistent with the applicable regional water supply planapproved pursuant to s. 373.709 373.0361, appropriate stormwater manage-ment, improved wildlife habitat, recreation, or a mixture thereof, provided

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adverse impacts are not caused to the water resources in the basin and publichealth and safety are not adversely affected.

Section 23. Paragraph (a) of subsection (3) of section 403.0891, FloridaStatutes, is amended to read:

403.0891 State, regional, and local stormwater management plans andprograms.—The department, the water management districts, and localgovernments shall have the responsibility for the development of mutuallycompatible stormwater management programs.

(3)(a) Each local government required by chapter 163 to submit acomprehensive plan, whose plan is submitted after July 1, 1992, and theothers when updated after July 1, 1992, in the development of its stormwatermanagement program described by elements within its comprehensive planshall consider the water resource implementation rule, district stormwatermanagement goals, plans approved pursuant to the Surface Water Improve-ment and Management Act, ss. 373.451-373.4595, and technical assistanceinformation provided by the water management districts pursuant to s.373.711 373.0391.

Section 24. Section 403.890, Florida Statutes, is amended to read:

403.890 Water Protection and Sustainability Program; intent; goals;purposes.—

(1) Effective July 1, 2006, revenues transferred from the Department ofRevenue pursuant to s. 201.15(1)(c)2. shall be deposited into the WaterProtection and Sustainability Program Trust Fund in the Department ofEnvironmental Protection. These revenues and any other additionalrevenues deposited into or appropriated to the Water Protection andSustainability Program Trust Fund shall be distributed by the Departmentof Environmental Protection in the following manner:

(a) Sixty percent to the Department of Environmental Protection for theimplementation of an alternative water supply program as provided in s.373.1961.

(b) Twenty percent for the implementation of best management practicesand capital project expenditures necessary for the implementation of thegoals of the total maximum daily load program established in s. 403.067. Ofthese funds, 85 percent shall be transferred to the credit of the Department ofEnvironmental Protection Water Quality Assurance Trust Fund to addresswater quality impacts associated with nonagricultural nonpoint sources.Fifteen percent of these funds shall be transferred to the Department ofAgriculture and Consumer Services General Inspection Trust Fund toaddress water quality impacts associated with agricultural nonpoint sources.These funds shall be used for research, development, demonstration, andimplementation of the total maximum daily load program under s. 403.067,suitable best management practices or other measures used to achieve water

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quality standards in surface waters and water segments identified pursuantto s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 etseq. Implementation of best management practices and other measures mayinclude cost-share grants, technical assistance, implementation tracking,and conservation leases or other agreements for water quality improvement.The Department of Environmental Protection and the Department ofAgriculture and Consumer Services may adopt rules governing the distribu-tion of funds for implementation of capital projects, best managementpractices, and other measures. These funds shall not be used to abrogate thefinancial responsibility of those point and nonpoint sources that havecontributed to the degradation of water or land areas. Increased priorityshall be given by the department and the water management districtgoverning boards to those projects that have secured a cost-sharingagreement allocating responsibility for the cleanup of point and nonpointsources.

(c) Ten percent shall be disbursed for the purposes of funding projectspursuant to ss. 373.451-373.459 or surface water restoration activities inwater-management-district-designated priority water bodies. The Secretaryof Environmental Protection shall ensure that each water managementdistrict receives the following percentage of funds annually:

1. Thirty-five percent to the South Florida Water Management District;

2. Twenty-five percent to the Southwest Florida Water ManagementDistrict;

3. Twenty-five percent to the St. Johns River Water ManagementDistrict;

4. Seven and one-half percent to the Suwannee River Water Manage-ment District; and

5. Seven and one-half percent to the Northwest Florida Water Manage-ment District.

(d) Ten percent to the Department of Environmental Protection for theDisadvantaged Small Community Wastewater Grant Program as providedin s. 403.1838.

(2) Applicable beginning in the 2007-2008 fiscal year, revenues trans-ferred from the Department of Revenue pursuant to s. 201.15(1)(c)2. shall bedeposited into the Water Protection and Sustainability Program Trust Fundin the Department of Environmental Protection. These revenues and anyother additional Revenues deposited into or appropriated to the WaterProtection and Sustainability Program Trust Fund shall be distributed bythe Department of Environmental Protection in the following manner:

(1)(a) Sixty-five percent to the Department of Environmental Protectionfor the implementation of an alternative water supply program as providedin s. 373.707 373.1961.

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(2)(b) Twenty-two and five-tenths percent for the implementation of bestmanagement practices and capital project expenditures necessary for theimplementation of the goals of the total maximum daily load programestablished in s. 403.067. Of these funds, 83.33 percent shall be transferredto the credit of the Department of Environmental Protection Water QualityAssurance Trust Fund to address water quality impacts associated withnonagricultural nonpoint sources. Sixteen and sixty-seven hundredthspercent of these funds shall be transferred to the Department of Agricultureand Consumer Services General Inspection Trust Fund to address waterquality impacts associated with agricultural nonpoint sources. These fundsshall be used for research, development, demonstration, and implementationof the total maximum daily load program under s. 403.067, suitable bestmanagement practices or other measures used to achieve water qualitystandards in surface waters and water segments identified pursuant to s.303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq.Implementation of best management practices and other measures mayinclude cost-share grants, technical assistance, implementation tracking,and conservation leases or other agreements for water quality improvement.The Department of Environmental Protection and the Department ofAgriculture and Consumer Services may adopt rules governing the distribu-tion of funds for implementation of capital projects, best managementpractices, and other measures. These funds shall not be used to abrogate thefinancial responsibility of those point and nonpoint sources that havecontributed to the degradation of water or land areas. Increased priorityshall be given by the department and the water management districtgoverning boards to those projects that have secured a cost-sharingagreement allocating responsibility for the cleanup of point and nonpointsources.

(3)(c) Twelve and five-tenths percent to the Department of Environ-mental Protection for the Disadvantaged Small Community WastewaterGrant Program as provided in s. 403.1838.

(4)(d) On June 30, 2009, and every 24months thereafter, the Departmentof Environmental Protection shall request the return of all unencumberedfunds distributed pursuant to this section. These funds shall be depositedinto the Water Protection and Sustainability Program Trust Fund andredistributed pursuant to the provisions of this section.

(3) For the 2008-2009 fiscal year only, moneys in the Water Protectionand Sustainability Program Trust Fund shall be transferred to theEcosystem Management and Restoration Trust Fund for grants and aidsto local governments for water projects as provided in the GeneralAppropriations Act. This subsection expires July 1, 2009.

(4) For fiscal year 2005-2006, funds deposited or appropriated into theWater Protection and Sustainability Program Trust Fund shall be distrib-uted as follows:

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(a) One hundred million dollars to the Department of EnvironmentalProtection for the implementation of an alternative water supply program asprovided in s. 373.1961.

(b) Funds remaining after the distribution provided for in subsection (1)shall be distributed as follows:

1. Fifty percent for the implementation of best management practicesand capital project expenditures necessary for the implementation of thegoals of the total maximum daily load program established in s. 403.067. Ofthese funds, 85 percent shall be transferred to the credit of the Department ofEnvironmental Protection Water Quality Assurance Trust Fund to addresswater quality impacts associated with nonagricultural nonpoint sources.Fifteen percent of these funds shall be transferred to the Department ofAgriculture and Consumer Services General Inspection Trust Fund toaddress water quality impacts associated with agricultural nonpoint sources.These funds shall be used for research, development, demonstration, andimplementation of suitable best management practices or other measuresused to achieve water quality standards in surface waters and watersegments identified pursuant to s. 303(d) of the Clean Water Act, Pub. L.No. 92-500, 33 U.S.C. ss. 1251 et seq. Implementation of best managementpractices and other measures may include cost-share grants, technicalassistance, implementation tracking, and conservation leases or otheragreements for water quality improvement. The Department of Environ-mental Protection and the Department of Agriculture and ConsumerServices may adopt rules governing the distribution of funds for implemen-tation of best management practices. These funds shall not be used toabrogate the financial responsibility of those point and nonpoint sources thathave contributed to the degradation of water or land areas. Increased priorityshall be given by the department and the water management districtgoverning boards to those projects that have secured a cost-sharingagreement allocating responsibility for the cleanup of point and nonpointsources.

2. Twenty-five percent for the purposes of funding projects pursuant toss. 373.451-373.459 or surface water restoration activities in water-manage-ment-district-designated priority water bodies. The Secretary of Environ-mental Protection shall ensure that each water management district receivesthe following percentage of funds annually:

a. Thirty-five percent to the South Florida Water Management District;

b. Twenty-five percent to the Southwest Florida Water ManagementDistrict;

c. Twenty-five percent to the St. Johns River Water ManagementDistrict;

d. Seven and one-half percent to the Suwannee River Water Manage-ment District; and

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e. Seven and one-half percent to the Northwest Florida Water Manage-ment District.

3. Twenty-five percent to the Department of Environmental Protectionfor the Disadvantaged Small Community Wastewater Grant Program asprovided in s. 403.1838.

Prior to the end of the 2008 Regular Session, the Legislature must review thedistribution of funds under theWater Protection and Sustainability Programto determine if revisions to the funding formula are required. At thediscretion of the President of the Senate and the Speaker of the House ofRepresentatives, the appropriate substantive committees of the Legislaturemay conduct an interim project to review the Water Protection andSustainability Program and the funding formula and make written recom-mendations to the Legislature proposing necessary changes, if any.

(5) For the 2009-2010 fiscal year only, funds shall be distributed asfollows:

(a) Thirty-one and twenty-one hundredths percent to the Department ofEnvironmental Protection for the implementation of an alternative watersupply program as provided in s. 373.1961.

(b) Twenty-six and eighty-seven hundredths percent for the implementa-tion of best management practices and capital project expendituresnecessary for the implementation of the goals of the total maximum dailyload program established in s. 403.067. Of these funds, 86 percent shall betransferred to the credit of the Water Quality Assurance Trust Fund of theDepartment of Environmental Protection to address water quality impactsassociated with nonagricultural nonpoint sources. Fourteen percent of thesefunds shall be transferred to the General Inspection Trust Fund of theDepartment of Agriculture and Consumer Services to address water qualityimpacts associated with agricultural nonpoint sources. These funds shall beused for research, development, demonstration, and implementation of thetotal maximum daily load program under s. 403.067, suitable best manage-ment practices, or other measures used to achieve water quality standards insurface waters and water segments identified pursuant to s. 303(d) of theClean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. Implementa-tion of best management practices and other measures may include cost-share grants, technical assistance, implementation tracking, and conserva-tion leases or other agreements for water quality improvement. TheDepartment of Environmental Protection and the Department of Agricultureand Consumer Services may adopt rules governing the distribution of fundsfor implementation of capital projects, best management practices, and othermeasures. These funds may not be used to abrogate the financial respon-sibility of those point and nonpoint sources that have contributed to thedegradation of water or land areas. Increased priority shall be given by thedepartment and the water management district governing boards to thoseprojects that have secured a cost-sharing agreement that allocates respon-sibility for the cleanup of point and nonpoint sources.

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(c) Forty-one and ninety-two hundredths percent to the Department ofEnvironmental Protection for the Disadvantaged Small Community Waste-water Grant Program as provided in s. 403.1838.

This subsection expires July 1, 2010.

Section 25. Subsection (1) of section 403.891, Florida Statutes, isamended to read:

403.891 Water Protection and Sustainability Program Trust Fund of theDepartment of Environmental Protection.—

(1) The Water Protection and Sustainability Program Trust Fund iscreated within the Department of Environmental Protection. The purpose ofthe trust fund is to receive funds pursuant to s. 201.15(1)(c)2., funds fromother sources provided for in law and the General Appropriations Act, andfunds received by the department in order to implement the provisions of theWater Sustainability and Protection Program created in s. 403.890.

Section 26. Section 682.02, Florida Statutes, is amended to read:

682.02 Arbitration agreements made valid, irrevocable, and enforceable;scope.—Two or more parties may agree in writing to submit to arbitrationany controversy existing between them at the time of the agreement, or theymay include in a written contract a provision for the settlement byarbitration of any controversy thereafter arising between them relating tosuch contract or the failure or refusal to perform the whole or any partthereof. This section also applies to written interlocal agreements under ss.163.01 and 373.713 373.1962 in which two or more parties agree to submit toarbitration any controversy between them concerning water use permitapplications and other matters, regardless of whether or not the watermanagement district with jurisdiction over the subject application is a partyto the interlocal agreement or a participant in the arbitration. Suchagreement or provision shall be valid, enforceable, and irrevocable withoutregard to the justiciable character of the controversy; provided that this actshall not apply to any such agreement or provision to arbitrate in which it isstipulated that this law shall not apply or to any arbitration or awardthereunder.

Section 27. Section 373.71, Florida Statutes, is renumbered as section373.69, Florida Statutes.

Section 28. Sections 373.0361, 373.0391, 373.0831, 373.196, 373.1961,373.1962, and 373.1963, Florida Statutes, are repealed.

Section 29. Paragraphs (a),(b),(c), and (f) of subsection (3) of section373.1961, Florida Statutes, is amended to read:

373.1961 Water production; general powers and duties; identification ofneeds; funding criteria; economic incentives; reuse funding.—

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(3) FUNDING.—

(a) The water management districts and the state shall share apercentage of revenues with water providers and users, including localgovernments, water, wastewater, and reuse utilities, municipal, specialdistrict, industrial, and agricultural water users, and other public andprivate water users, to be used to supplement other funding sources in thedevelopment of alternative water supplies and conservation projects thatresult in quantifiable water savings.

(b) Beginning in fiscal year 2005-2006, the state shall annually provide aportion of those revenues deposited into the Water Protection and Sustain-ability Program Trust Fund for the purpose of providing funding assistancefor the development of alternative water supplies and conservation projectsthat result in quantifiable water savings pursuant to the Water Protectionand Sustainability Program. At the beginning of each fiscal year, beginningwith fiscal year 2005-2006, such revenues shall be distributed by thedepartment into the alternative water supply trust fund accounts createdby each district for the purpose of alternative water supply developmentunder the following funding formula:

1. Thirty percent to the South Florida Water Management District;

2. Twenty-five percent to the Southwest Florida Water ManagementDistrict;

3. Twenty-five percent to the St. Johns River Water ManagementDistrict;

4. Ten percent to the Suwannee River Water Management District; and

5. Ten percent to the Northwest Florida Water Management District.

(c) The financial assistance for alternative water supply projects allo-cated in each district’s budget as required in s. 373.196(6) shall be combinedwith the state funds and used to assist in funding the project constructioncosts of alternative water supply projects and the project costs of conserva-tion projects that result in quantifiable water savings selected by thegoverning board. If the district has not completed any regional water supplyplan, or the regional water supply plan does not identify the need for anyalternative water supply projects, funds deposited in that district’s trust fundmay be used for water resource development projects, including, but notlimited to, springs protection.

(f) The governing boards shall determine those projects that will beselected for financial assistance. The governing boards may establish factorsto determine project funding; however, significant weight shall be given tothe following factors:

1. Whether the project provides substantial environmental benefits bypreventing or limiting adverse water resource impacts.

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2. Whether the project reduces competition for water supplies.

3. Whether the project brings about replacement of traditional sources inorder to help implement a minimum flow or level or a reservation.

4. Whether the project will be implemented by a consumptive usepermittee that has achieved the targets contained in a goal-based waterconservation program approved pursuant to s. 373.227.

5. The quantity of water supplied by the project as compared to its cost.

6. Projects in which the construction and delivery to end users of reusewater is a major component.

7. Whether the project will be implemented by a multijurisdictionalwater supply entity or regional water supply authority.

8. Whether the project implements reuse that assists in the eliminationof domestic wastewater ocean outfalls as provided in s. 403.086(9).

9. Whether the county or municipality, or the multiple counties ormunicipalities, in which the project is located has implemented a high-waterrecharge protection tax assessment program as provided in s. 193.625.

Section 30. Paragraph (a) of subsection (19) of section 373.414, FloridaStatutes, is amended to read:

373.414 Additional criteria for activities in surface waters and wetlands.

(19)(a) Financial responsibility for mitigation for wetlands and othersurface waters required by a permit issued pursuant to this part for activitiesassociated with the extraction of limestone and phosphate are subject toapproval by the department as part of the permit application review.Financial responsibility for permitted activities that which will occur over aperiod of 3 years or less of mining operations must be provided to thedepartment before prior to the commencement of mining operations andmust shall be in an amount equal to 110 percent of the estimated mitigationcosts for wetlands and other surface waters affected under the permit. Forpermitted activities that which will occur over a period of more than 3 yearsof mining operations, the initial financial responsibility demonstration mustshall be in an amount equal to 110 percent of the estimated mitigation costsfor wetlands and other surface waters affected in the first 3 years of operationunder the permit.; and, For each year thereafter, the financial responsibilitydemonstration must shall be updated, including providing to provide anamount equal to 110 percent of the estimated mitigation costs for the nextyear of operations under the permit for which financial responsibility has notalready been demonstrated and to release portions of the financialresponsibility mechanisms in accordance with applicable rules.

Section 31. Subsection (2) of section 378.901, Florida Statutes, isamended to read:

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378.901 Life-of-the-mine permit.—

(2) As an alternative to, and in lieu of, separate applications for permitsrequired under by part IV of chapter 373 and part IV of this chapter, any eachoperator who mines or extracts or proposes to mine or extract heavyminerals, limestone, or fuller’s earth clay may apply to the bureau for alife-of-the-mine permit. This subsection does not limit the authority of a localgovernment to approve, approve with conditions, deny, or impose a permitduration that is different from the duration issued pursuant to this section.

Section 32. Subsections (2), (5), and (9) of section 373.41492, FloridaStatutes, are amended to read:

373.41492 Miami-Dade County Lake Belt Mitigation Plan; mitigation formining activities within the Miami-Dade County Lake Belt.—

(2) To provide for the mitigation of wetland resources lost to miningactivities within the Miami-Dade County Lake Belt Plan, effective October 1,1999, a mitigation fee is imposed on each ton of limerock and sand extractedby any person who engages in the business of extracting limerock or sandfrom within the Miami-Dade County Lake Belt Area and the east one-half ofsections 24 and 25 and all of sections 35 and 36, Township 53 South, Range39 East. The mitigation fee is imposed for each ton of limerock and sand soldfrom within the properties where the fee applies in raw, processed, ormanufactured form, including, but not limited to, sized aggregate, asphalt,cement, concrete, and other limerock and concrete products. The mitigationfee imposed by this subsection for each ton of limerock and sand sold shall be12 cents per ton beginning January 1, 2007; 18 cents per ton beginningJanuary 1, 2008; and 24 cents per ton beginning January 1, 2009, and 45cents per ton beginning close of business December 31, 2011. To upgrade awater treatment plant that treats water coming from the NorthwestWellfield in Miami-Dade County, a water treatment plant upgrade fee isimposed within the same Lake Belt Area subject to the mitigation fee andupon the same kind of mined limerock and sand subject to the mitigation fee.The water treatment plant upgrade fee imposed by this subsection for eachton of limerock and sand sold shall be 15 cents per ton beginning on January1, 2007, and the collection of this fee shall cease once the total amount ofproceeds collected for this fee reaches the amount of the actual moneysnecessary to design and construct the water treatment plant upgrade, asdetermined in an open, public solicitation process. Any limerock or sand thatis used within the mine from which the limerock or sand is extracted isexempt from the fees. The amount of the mitigation fee and the watertreatment plant upgrade fee imposed under this section must be statedseparately on the invoice provided to the purchaser of the limerock or sandproduct from the limerock or sand miner, or its subsidiary or affiliate, forwhich the fee or fees apply. The limerock or sand miner, or its subsidiary oraffiliate, who sells the limerock or sand product shall collect the mitigationfee and the water treatment plant upgrade fee and forward the proceeds ofthe fees to the Department of Revenue on or before the 20th day of the monthfollowing the calendar month in which the sale occurs.

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(5) Each January 1, beginning January 1, 2010, through December 31,2011, Beginning January 1, 2010, and each January 1 thereafter, the per-tonmitigation fee shall be increased by 2.1 percentage points, plus a cost growthindex. The cost growth index shall be the percentage change in the weightedaverage of the Employment Cost Index for All Civilian Workers (ecu 10001I),issued by the United States Department of Labor for the most recent 12-month period ending on September 30, and the percentage change in theProducer Price Index for All Commodities (WPU 00000000), issued by theUnited States Department of Labor for the most recent 12-month periodending on September 30, compared to the weighted average of these indicesfor the previous year. The weighted average shall be calculated as 0.6 timesthe percentage change in the Employment Cost Index for All CivilianWorkers (ecu 10001I), plus 0.4 times the percentage change in the ProducerPrice Index for All Commodities (WPU 00000000). If either index isdiscontinued, it shall be replaced by its successor index, as identified bythe United States Department of Labor.

(9)(a) The interagency committee established in this section shallannually prepare and submit to the governing board of the South FloridaWater Management District a report evaluating the mitigation costs andrevenues generated by the mitigation fee.

(b) No sooner than January 31, 2010, and no more frequently than every2 5 years thereafter, the interagency committee shall submit to theLegislature a report recommending any needed adjustments to the mitiga-tion fee, including the annual escalator provided for in subsection (5), toensure that the revenue generated reflects the actual costs of the mitigation.

Section 33. Subsection (1) of section 215.619, Florida Statutes, isamended to read:

215.619 Bonds for Everglades restoration.—

(1) The issuance of Everglades restoration bonds to finance or refinancethe cost of the acquisition and improvement of land, water areas, and relatedproperty interests and resources for the purpose of implementing theComprehensive Everglades Restoration Plan under s. 373.470, the LakeOkeechobee Watershed Protection Plan under s. 373.4595, the Caloosa-hatchee River Watershed Protection Plan under s. 373.4595, the St. LucieRiver Watershed Protection Plan under s. 373.4595, and the Florida KeysArea of Critical State Concern protection program under ss. 380.05 and380.0552 in order to restore and conserve natural systems through theimplementation of water management projects, including wastewatermanagement projects identified in the “Keys Wastewater Plan,” datedNovember 2007, and submitted to the Florida House of Representativeson December 4, 2007, is authorized in accordance with s. 11(e), Art. VII of theState Constitution.

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(a) Everglades restoration bonds, except refunding bonds, may be issuedonly in fiscal years 2002-2003 through 2019-2020 andmay not be issued in anamount exceeding $100 million per fiscal year unless:

1.(a) The Department of Environmental Protection has requested addi-tional amounts in order to achieve cost savings or accelerate the purchase ofland; or

2.(b) The Legislature authorizes an additional amount of bonds not toexceed $200 million, and limited to $50 million per fiscal year, for no morethan 4 fiscal years, specifically for the purpose of funding the Florida KeysArea of Critical State Concern protection program. Proceeds from the bondsshall be managed by the Department of Environmental Protection for thepurpose of entering into financial assistance agreements with local govern-ments located in the Florida Keys Area of Critical State Concern to finance orrefinance the cost of constructing sewage collection, treatment, and disposalfacilities.

(b) The duration of Everglades restoration bonds may not exceed 20annual maturities, and those bonds must mature by December 31, 2040.Except for refunding bonds, a series of bonds may not be issued unless anamount equal to the debt service coming due in the year of issuance has beenappropriated by the Legislature. Beginning July 1, 2010, the Legislatureshall analyze the ratio of the state’s debt to projected revenues beforeauthorizing the issuance of prior to the authorization to issue any bondsunder this section.

Section 34. Subsections (2), (4), (7), and (9) of section 380.0552, FloridaStatutes, are amended to read:

380.0552 Florida Keys Area; protection and designation as area ofcritical state concern.—

(2) LEGISLATIVE INTENT.—It is hereby declared that the intent of theLegislature to is:

(a) To Establish a land use management system that protects the naturalenvironment of the Florida Keys.

(b) To Establish a land use management system that conserves andpromotes the community character of the Florida Keys.

(c) To Establish a land use management system that promotes orderlyand balanced growth in accordance with the capacity of available andplanned public facilities and services.

(d) To Provide for affordable housing in close proximity to places ofemployment in the Florida Keys.

(e) To Establish a land use management system that promotes andsupports a diverse and sound economic base.

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(f) To Protect the constitutional rights of property owners to own, use,and dispose of their real property.

(g) To Promote coordination and efficiency among governmental agenciesthat have with permitting jurisdiction over land use activities in the FloridaKeys.

(h) Promote an appropriate land acquisition and protection strategy forenvironmentally sensitive lands within the Florida Keys.

(i) Protect and improve the nearshore water quality of the Florida Keysthrough the construction and operation of wastewater management facilitiesthat meet the requirements of ss. 381.0065(4)(l) and 403.086(10), asapplicable.

(j) Ensure that the population of the Florida Keys can be safelyevacuated.

(4) REMOVAL OF DESIGNATION.—

(a) Between July 12, 2008, and August 30, 2008, the state land planningagency shall submit a written report to the Administration Commissiondescribing in detail the progress of the Florida Keys Area toward accom-plishing the tasks of the work program as defined in paragraph (c) andproviding a recommendation as to whether substantial progress towardaccomplishing the tasks of the work program has been achieved. Subsequentto receipt of the report, the Administration Commission shall determine,prior to October 1, 2008, whether substantial progress has been achievedtoward accomplishing the tasks of the work program. The designation of theFlorida Keys Area as an area of critical state concern under this section maybe recommended for removal upon fulfilling the legislative intent undersubsection (2) and completion of all the work program tasks specified in rulesof the Administration Commission shall be removed October 1, 2009, unlessthe Administration Commission finds, after receipt of the state landplanning agency report, that substantial progress has not been achievedtoward accomplishing the tasks of the work program. If the designation of theFlorida Keys Area as an area of critical state concern is removed, theAdministration Commission, within 60 days after removal of the designa-tion, shall initiate rulemaking pursuant to chapter 120 to repeal any rulesrelating to the designation of the Florida Keys Area as an area of criticalstate concern. If, after receipt of the state land planning agency’s report, theAdministration Commission finds that substantial progress toward accom-plishing the tasks of the work program has not been achieved, theAdministration Commission shall provide a written report to the MonroeCounty Commission within 30 days after making such finding detailing thetasks under the work program that must be accomplished in order forsubstantial progress to be achieved within the next 12 months.

(b) Beginning November 30, 2010, the state land planning agency shallannually submit a written report to the Administration Commission

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describing the progress of the Florida Keys Area toward completing the workprogram tasks specified in commission rules. The land planning agency shallrecommend removing the Florida Keys Area from being designated as anarea of critical state concern to the commission if it determines that:

1. All of the work program tasks have been completed, includingconstruction of, operation of, and connection to central wastewater manage-ment facilities pursuant to s. 403.086(10) and upgrade of onsite sewagetreatment and disposal systems pursuant to s. 381.0065(4)(l);

2. All local comprehensive plans and land development regulations andthe administration of such plans and regulations are adequate to protect theFlorida Keys Area, fulfill the legislative intent specified in subsection (2), andare consistent with and further the principles guiding development; and

3. A local government has adopted a resolution at a public hearingrecommending the removal of the designation.

(b) If the designation of the Florida Keys Area as an area of critical stateconcern is not removed in accordance with paragraph (a), the state landplanning agency shall submit a written annual report to the AdministrationCommission on November 1 of each year, until such time as the designationis removed, describing the progress of the Florida Keys Area towardaccomplishing remaining tasks under the work program and providing arecommendation as to whether substantial progress toward accomplishingthe tasks of the work program has been achieved. The AdministrationCommission shall determine, within 45 days after receipt of the annualreport, whether substantial progress has been achieved toward accomplish-ing the remaining tasks of the work program. The designation of the FloridaKeys Area as an area of critical state concern under this section shall beremoved unless the Administration Commission finds that substantialprogress has not been achieved toward accomplishing the tasks of thework program. If the designation of the Florida Keys Area as an area ofcritical state concern is removed, the Administration Commission, within 60days after removal of the designation, shall initiate rulemaking pursuant tochapter 120 to repeal any rules relating to the designation of the FloridaKeys Area as an area of critical state concern. If the AdministrationCommission finds that substantial progress has not been achieved, theAdministration Commission shall provide to the Monroe County Commis-sion, within 30 days after making its finding, a report detailing the tasksunder the work program that must be accomplished in order for substantialprogress to be achieved within the next 12 months.

(c) After receipt of the state land planning agency report and recom-mendation, the Administration Commission shall determine whether therequirements have been fulfilled and may remove the designation of theFlorida Keys as an area of critical state concern. If the commission removesthe designation, it shall initiate rulemaking to repeal any rules relating suchdesignation within 60 days. If, after receipt of the state land planningagency’s report and recommendation, the commission finds that the

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requirements for recommending removal of designation have not been met,the commission shall provide a written report to the local governmentswithin 30 days after making such a finding detailing the tasks that must becompleted by the local government.

(c) For purposes of this subsection, the term “work program” means the10-year work program as set forth in rule 28-20.110, Florida AdministrativeCode, on January 1, 2006, excluding amendments to the work program thattake effect after January 1, 2006.

(d) The determination of the Administration Commission’s determina-tion concerning the removal of the designation of the Florida Keys as an areaof critical state concern Commission as to whether substantial progress hasbeen made toward accomplishing the tasks of the work program may bejudicially reviewed pursuant to chapter 120 86. All proceedings shall beconducted by the Division of Administrative Hearings and must be initiatedwithin 30 days after the commission issues its determination in the circuitcourt of the judicial circuit where the Administration Commission maintainsits headquarters and shall be initiated within 30 days after rendition of theAdministration Commission’s determination. The Administration Commis-sion’s determination as to whether substantial progress has been madetoward accomplishing the tasks of the work program shall be upheld if it issupported by competent and substantial evidence and shall not be subject toadministrative review under chapter 120.

(e) After removal of the designation of the Florida Keys as an area ofcritical state concern, the state land planning agency shall review proposedlocal comprehensive plans, and any amendments to existing comprehensiveplans, which are applicable to the Florida Keys Area, the boundaries of whichwere described in chapter 28-29, Florida Administrative Code, as of January1, 2006, for compliance with subparagraphs 1. and 2., in addition toreviewing proposed local comprehensive plans and amendments for com-pliance as defined in s. 163.3184. All procedures and penalties described in s.163.3184 apply to the review conducted pursuant to this paragraph.

1. Adoption of construction schedules for wastewater facilities improve-ments in the annually adopted capital improvements element and adoptionof standards for the construction of wastewater treatment facilities whichmeet or exceed the criteria of chapter 99-395, Laws of Florida.

2. Adoption of goals, objectives, and policies to protect public safety andwelfare in the event of a natural disaster by maintaining a hurricaneevacuation clearance time for permanent residents of no more than 24 hours.The hurricane evacuation clearance time shall be determined by a hurricaneevacuation study conducted in accordance with a professionally acceptedmethodology and approved by the state land planning agency.

(f) The Administration Commission may adopt rules or revise existingrules as necessary to administer this subsection.

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(7) PRINCIPLES FOR GUIDING DEVELOPMENT.—State, regional,and local agencies and units of government in the Florida Keys Area shallcoordinate their plans and conduct their programs and regulatory activitiesconsistent with the principles for guiding development as specified set forthin chapter 27F-8, Florida Administrative Code, as amended effective August23, 1984, which chapter is hereby adopted and incorporated herein byreference. For the purposes of reviewing the consistency of the adopted plan,or any amendments to that plan, with the principles for guiding develop-ment, and any amendments to the principles, the principles shall beconstrued as a whole and no specific provisions may not provision shall beconstrued or applied in isolation from the other provisions. However, theprinciples for guiding development as set forth in chapter 27F-8, FloridaAdministrative Code, as amended effective August 23, 1984, are repealed 18months from July 1, 1986. After repeal, the following shall be the principleswith which any plan amendments must be consistent with the followingprinciples:

(a) Strengthening To strengthen local government capabilities formanaging land use and development so that local government is able toachieve these objectives without continuing the continuation of the area ofcritical state concern designation.

(b) Protecting To protect shoreline and marine resources, includingmangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife,and their habitat.

(c) Protecting To protect upland resources, tropical biological commu-nities, freshwater wetlands, native tropical vegetation (for example, hard-wood hammocks and pinelands), dune ridges and beaches, wildlife, and theirhabitat.

(d) Ensuring To ensure the maximum well-being of the Florida Keys andits citizens through sound economic development.

(e) Limiting To limit the adverse impacts of development on the quality ofwater throughout the Florida Keys.

(f) Enhancing To enhance natural scenic resources, promoting promotethe aesthetic benefits of the natural environment, and ensuring ensure thatdevelopment is compatible with the unique historic character of the FloridaKeys.

(g) Protecting To protect the historical heritage of the Florida Keys.

(h) Protecting To protect the value, efficiency, cost-effectiveness, andamortized life of existing and proposed major public investments, including:

1. The Florida Keys Aqueduct and water supply facilities;

2. Sewage collection, treatment, and disposal facilities;

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3. Solid waste treatment, collection, and disposal facilities;

4. Key West Naval Air Station and other military facilities;

5. Transportation facilities;

6. Federal parks, wildlife refuges, and marine sanctuaries;

7. State parks, recreation facilities, aquatic preserves, and other publiclyowned properties;

8. City electric service and the Florida Keys Electric Co-op; and

9. Other utilities, as appropriate.

(i) Protecting and improving water quality by providing for the construc-tion, operation, maintenance, and replacement of stormwater managementfacilities; central sewage collection; treatment and disposal facilities; and theinstallation and proper operation and maintenance of onsite sewagetreatment and disposal systems.

(j) Ensuring the improvement of nearshore water quality by requiringthe construction and operation of wastewater management facilities thatmeet the requirements of ss. 381.0065(4)(l) and 403.086(10), as applicable,and by directing growth to areas served by central wastewater treatmentfacilities through permit allocation systems.

(k)(i) Limiting To limit the adverse impacts of public investments on theenvironmental resources of the Florida Keys.

(l)(j) Making To make available adequate affordable housing for allsectors of the population of the Florida Keys.

(m)(k) Providing To provide adequate alternatives for the protection ofpublic safety and welfare in the event of a natural or manmade disaster andfor a postdisaster reconstruction plan.

(n)(l) Protecting To protect the public health, safety, and welfare of thecitizens of the Florida Keys and maintain the Florida Keys as a uniqueFlorida resource.

(9) MODIFICATION TO PLANS AND REGULATIONS.—

(a) Any land development regulation or element of a local comprehensiveplan in the Florida Keys Area may be enacted, amended, or rescinded by alocal government, but the enactment, amendment, or rescission becomesshall become effective only upon the approval thereof by the state landplanning agency. The state land planning agency shall review the proposedchange to determine if it is in compliance with the principles for guidingdevelopment specified set forth in chapter 27F-8, Florida AdministrativeCode, as amended effective August 23, 1984, and must shall either approveor reject the requested changes within 60 days after of receipt thereof.

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Amendments to local comprehensive plans in the Florida Keys Area mustalso be reviewed for compliance with the following:

1. Construction schedules and detailed capital financing plans forwastewater management improvements in the annually adopted capitalimprovements element, and standards for the construction of wastewatertreatment and disposal facilities or collection systems that meet or exceedthe criteria in s. 403.086(10) for wastewater treatment and disposal facilitiesor s. 381.0065(4)(l) for onsite sewage treatment and disposal systems.

2. Goals, objectives, and policies to protect public safety and welfare inthe event of a natural disaster by maintaining a hurricane evacuationclearance time for permanent residents of no more than 24 hours. Thehurricane evacuation clearance time shall be determined by a hurricaneevacuation study conducted in accordance with a professionally acceptedmethodology and approved by the state land planning agency.

(b) Further, The state land planning agency, after consulting with theappropriate local government, may, no more often than once per a year,recommend to the Administration Commission the enactment, amendment,or rescission of a land development regulation or element of a localcomprehensive plan. Within 45 days following the receipt of such recom-mendation by the state land planning agency, the commission shall reject therecommendation, or accept it with or without modification and adopt it, byrule, including any changes. Any Such local development regulation or planmust shall be in compliance with the principles for guiding development.

Section 35. Subsection (1) and paragraph (l) of subsection (4) of section381.0065, Florida Statutes are amended, present subsection (5) of thatsection is renumbered as subsection (6), and new subsections (5) and (7) areadded to that section, to read:

381.0065 Onsite sewage treatment and disposal systems; regulation.—

(1) LEGISLATIVE INTENT.—

(a) It is the intent of the Legislature that proper management of onsitesewage treatment and disposal systems is paramount to the health, safety,and welfare of the public. It is further the intent of the Legislature that thedepartment shall administer an evaluation program to ensure the opera-tional condition of the system and identify any failure with the system.

(b) It is the intent of the Legislature that where a publicly owned orinvestor-owned sewerage system is not available, the department shall issuepermits for the construction, installation, modification, abandonment, orrepair of onsite sewage treatment and disposal systems under conditions asdescribed in this section and rules adopted under this section. It is furtherthe intent of the Legislature that the installation and use of onsite sewagetreatment and disposal systems not adversely affect the public health orsignificantly degrade the groundwater or surface water.

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(4) PERMITS; INSTALLATION; AND CONDITIONS.—A person maynot construct, repair, modify, abandon, or operate an onsite sewagetreatment and disposal system without first obtaining a permit approvedby the department. The department may issue permits to carry out thissection, but shall not make the issuance of such permits contingent uponprior approval by the Department of Environmental Protection, except thatthe issuance of a permit for work seaward of the coastal construction controlline established under s. 161.053 shall be contingent upon receipt of anyrequired coastal construction control line permit from the Department ofEnvironmental Protection. A construction permit is valid for 18 months fromthe issuance date and may be extended by the department for one 90-dayperiod under rules adopted by the department. A repair permit is valid for 90days from the date of issuance. An operating permit must be obtained prior tothe use of any aerobic treatment unit or if the establishment generatescommercial waste. Buildings or establishments that use an aerobic treat-ment unit or generate commercial waste shall be inspected by the depart-ment at least annually to assure compliance with the terms of the operatingpermit. The operating permit for a commercial wastewater system is valid for1 year from the date of issuance and must be renewed annually. Theoperating permit for an aerobic treatment unit is valid for 2 years from thedate of issuance and must be renewed every 2 years. If all informationpertaining to the siting, location, and installation conditions or repair of anonsite sewage treatment and disposal system remains the same, aconstruction or repair permit for the onsite sewage treatment and disposalsystemmay be transferred to another person, if the transferee files, within 60days after the transfer of ownership, an amended application providing allcorrected information and proof of ownership of the property. There is no feeassociated with the processing of this supplemental information. A personmay not contract to construct, modify, alter, repair, service, abandon, ormaintain any portion of an onsite sewage treatment and disposal systemwithout being registered under part III of chapter 489. A property owner whopersonally performs construction, maintenance, or repairs to a systemserving his or her own owner-occupied single-family residence is exemptfrom registration requirements for performing such construction, mainte-nance, or repairs on that residence, but is subject to all permittingrequirements. A municipality or political subdivision of the state may notissue a building or plumbing permit for any building that requires the use ofan onsite sewage treatment and disposal system unless the owner or builderhas received a construction permit for such system from the department. Abuilding or structure may not be occupied and a municipality, politicalsubdivision, or any state or federal agency may not authorize occupancy untilthe department approves the final installation of the onsite sewagetreatment and disposal system. A municipality or political subdivision ofthe state may not approve any change in occupancy or tenancy of a buildingthat uses an onsite sewage treatment and disposal system until thedepartment has reviewed the use of the system with the proposed change,approved the change, and amended the operating permit.

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(l) For the Florida Keys, the department shall adopt a special rule for theconstruction, installation, modification, operation, repair, maintenance, andperformance of onsite sewage treatment and disposal systems whichconsiders the unique soil conditions and which considers water tableelevations, densities, and setback requirements. On lots where a setbackdistance of 75 feet from surface waters, saltmarsh, and buttonwoodassociation habitat areas cannot be met, an injection well, approved andpermitted by the department, may be used for disposal of effluent from onsitesewage treatment and disposal systems. The following additional require-ments apply to onsite sewage treatment and disposal systems in MonroeCounty:

1. The county, each municipality, and those special districts establishedfor the purpose of the collection, transmission, treatment, or disposal ofsewage shall ensure, in accordance with the specific schedules adopted by theAdministration Commission under s. 380.0552, the completion of onsitesewage treatment and disposal system upgrades to meet the requirements ofthis paragraph.

2. Onsite sewage treatment and disposal systems must cease dischargeby December 31, 2015, or must comply with department rules and providethe level of treatment which, on a permitted annual average basis, producesan effluent that contains no more than the following concentrations:

a. Biochemical Oxygen Demand (CBOD5) of 10 mg/l.

b. Suspended Solids of 10 mg/l.

c. Total Nitrogen, expressed as N, of 10 mg/l.

d. Total Phosphorus, expressed as P, of 1 mg/l.

In addition, onsite sewage treatment and disposal systems discharging to aninjection well must provide basic disinfection as defined by department rule.

3. On or after July 1, 2010, all new, modified, and repaired onsite sewagetreatment and disposal systems must provide the level of treatmentdescribed in subparagraph 2. However, in areas scheduled to be served bycentral sewer by December 31, 2015, if the property owner has paid aconnection fee or assessment for connection to the central sewer system, anonsite sewage treatment and disposal system may be repaired to thefollowing minimum standards:

a. The existing tanks must be pumped and inspected and certified asbeing watertight and free of defects in accordance with department rule; and

b. A sand-lined drainfield or injection well in accordance with depart-ment rule must be installed.

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4. Onsite sewage treatment and disposal systems must be monitored fortotal nitrogen and total phosphorus concentrations as required by depart-ment rule.

5. The department shall enforce proper installation, operation, andmaintenance of onsite sewage treatment and disposal systems pursuant tothis chapter, including ensuring that the appropriate level of treatmentdescribed in subparagraph 2. is met.

6. The authority of a local government, including a special district, tomandate connection of an onsite sewage treatment and disposal system isgoverned by section 4 of chapter 99-395, Laws of Florida.

(5) EVALUATION AND ASSESSMENT.—

(a) Beginning January 1, 2011, the department shall administer anonsite sewage treatment and disposal system evaluation program for thepurpose of assessing the fundamental operational condition of systems andidentifying any failures within the systems. The department shall adoptrules implementing the program standards, procedures, and requirements,including, but not limited to, a schedule for a 5-year evaluation cycle,requirements for the pump-out of a system or repair of a failing system,enforcement procedures for failure of a system owner to obtain an evaluationof the system, and failure of a contractor to timely submit evaluation resultsto the department and the system owner. The department shall ensurestatewide implementation of the evaluation and assessment program byJanuary 1, 2016.

(b) Owners of an onsite sewage treatment and disposal system, excludinga system that is required to obtain an operating permit, shall have thesystem evaluated at least once every 5 years to assess the fundamentaloperational condition of the system, and identify any failure within thesystem.

(c) All evaluation procedures must be documented and nothing in thissubsection limits the amount of detail an evaluator may provide at his or herprofessional discretion. The evaluation must include a tank and drainfieldevaluation, a written assessment of the condition of the system, and, ifnecessary, a disclosure statement pursuant to the department’s procedure.

(d)1. Systems being evaluated that were installed prior to January 1,1983, shall meet a minimum 6-inch separation from the bottom of thedrainfield to the wettest season water table elevation as defined bydepartment rule. All drainfield repairs, replacements or modifications tosystems installed prior to January 1, 1983, shall meet a minimum 12-inchseparation from the bottom of the drainfield to the wettest season water tableelevation as defined by department rule.

2. Systems being evaluated that were installed on or after January 1,1983, shall meet a minimum 12-inch separation from the bottom of the

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drainfield to the wettest season water table elevation as defined bydepartment rule. All drainfield repairs, replacements or modification tosystems developed on or after January 1, 1983, shall meet a minimum 24-inch separation from the bottom of the drainfield to the wettest season watertable elevation.

(e) If documentation of a tank pump-out or a permitted new installation,repair, or modification of the system within the previous 5 years is provided,and states the capacity of the tank and indicates that the condition of thetank is not a sanitary or public health nuisance pursuant to department rule,a pump-out of the system is not required.

(f) Owners are responsible for paying the cost of any required pump-out,repair, or replacement pursuant to department rule, and may not requestpartial evaluation or the omission of portions of the evaluation.

(g) Each evaluation or pump-out required under this subsection must beperformed by a septic tank contractor or master septic tank contractorregistered under part III of chapter 489, a professional engineer withwastewater treatment system experience licensed pursuant to chapter 471,or an environmental health professional certified under chapter 381 in thearea of onsite sewage treatment and disposal system evaluation.

(h) The evaluation report fee collected pursuant to s. 381.0066(2)(b) shallbe remitted to the department by the evaluator at the time the report issubmitted.

(i) Prior to any evaluation deadline, the department must provide aminimum of 60 days’ notice to owners that their systems must be evaluatedby that deadline. The department may include a copy of any homeownereducational materials developed pursuant to this section which providesinformation on the proper maintenance of onsite sewage treatment anddisposal systems.

(6)(5) ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.—

(a) Department personnel who have reason to believe noncomplianceexists, may at any reasonable time, enter the premises permitted under ss.381.0065-381.0066, or the business premises of any septic tank contractor ormaster septic tank contractor registered under part III of chapter 489, or anypremises that the department has reason to believe is being operated ormaintained not in compliance, to determine compliance with the provisionsof this section, part I of chapter 386, or part III of chapter 489 or rules orstandards adopted under ss. 381.0065-381.0067, part I of chapter 386, or partIII of chapter 489. As used in this paragraph, the term “premises” does notinclude a residence or private building. To gain entry to a residence or privatebuilding, the department must obtain permission from the owner or occupantor secure an inspection warrant from a court of competent jurisdiction.

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(b)1. The department may issue citations that may contain an order ofcorrection or an order to pay a fine, or both, for violations of ss. 381.0065-381.0067, part I of chapter 386, or part III of chapter 489 or the rules adoptedby the department, when a violation of these sections or rules is enforceableby an administrative or civil remedy, or when a violation of these sections orrules is a misdemeanor of the second degree. A citation issued under ss.381.0065-381.0067, part I of chapter 386, or part III of chapter 489constitutes a notice of proposed agency action.

2. A citation must be in writing and must describe the particular natureof the violation, including specific reference to the provisions of law or ruleallegedly violated.

3. The fines imposed by a citation issued by the department may notexceed $500 for each violation. Each day the violation exists constitutes aseparate violation for which a citation may be issued.

4. The department shall inform the recipient, by written notice pursuantto ss. 120.569 and 120.57, of the right to an administrative hearing to contestthe citation within 21 days after the date the citation is received. The citationmust contain a conspicuous statement that if the recipient fails to pay thefine within the time allowed, or fails to appear to contest the citation afterhaving requested a hearing, the recipient has waived the recipient’s right tocontest the citation and must pay an amount up to the maximum fine.

5. The department may reduce or waive the fine imposed by the citation.In determining whether to reduce or waive the fine, the department mustconsider the gravity of the violation, the person’s attempts at correcting theviolation, and the person’s history of previous violations including violationsfor which enforcement actions were taken under ss. 381.0065-381.0067, partI of chapter 386, part III of chapter 489, or other provisions of law or rule.

6. Any person who willfully refuses to sign and accept a citation issued bythe department commits a misdemeanor of the second degree, punishable asprovided in s. 775.082 or s. 775.083.

7. The department, pursuant to ss. 381.0065-381.0067, part I of chapter386, or part III of chapter 489, shall deposit any fines it collects in the countyhealth department trust fund for use in providing services specified in thosesections.

8. This section provides an alternative means of enforcing ss. 381.0065-381.0067, part I of chapter 386, and part III of chapter 489. This section doesnot prohibit the department from enforcing ss. 381.0065-381.0067, part I ofchapter 386, or part III of chapter 489, or its rules, by any other means.However, the department must elect to use only a single method ofenforcement for each violation.

(7) LAND APPLICATION OF SEPTAGE PROHIBITED.—EffectiveJanuary 1, 2016, the land application of septage from onsite sewage

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treatment and disposal systems is prohibited. By February 1, 2011, thedepartment, in consultation with the Department of Environmental Protec-tion, shall provide a report to the Governor, the President of the Senate, andthe Speaker of the House of Representatives, recommending alternativemethods to establish enhanced treatment levels for the land application ofseptage from onsite sewage and disposal systems. The report shall include,but is not limited to, a schedule for the reduction in land application,appropriate treatment levels, alternative methods for treatment anddisposal, enhanced application site permitting requirements including anyrequirements for nutrient management plans, and the range of costs to localgovernments, affected businesses and individuals for alternative treatmentand disposal methods. The report shall also include any recommendations forlegislation or rule authority needed to reduce land application of septage.

Section 36. Section 381.00656, Florida Statutes, is created to read:

381.00656 Grant program for repair of onsite sewage treatment disposalsystems.—Effective January 1, 2012, the department shall administer agrant program to assist owners of onsite sewage treatment and disposalsystems identified pursuant to s. 381.0065 or the rules adopted thereunder.A grant under the programmay be awarded to an owner only for the purposeof inspecting, pumping, repairing, or replacing a system serving a single-family residence occupied by an owner with a family income of less than orequal to 133 percent of the federal poverty level at the time of application.The department may prioritize applications for an award of grant fundsbased upon the severity of a system’s failure, its relative environmentalimpact, the income of the family, or any combination thereof. The depart-ment shall adopt rules establishing the grant application and award process,including an application form. The department shall seek to make grants ineach fiscal year equal to the total amount of grant funds available, with anyexcess funds used for grant awards in subsequent fiscal years.

Section 37. Subsection (2) of section 381.0066, Florida Statutes, isamended to read:

381.0066 Onsite sewage treatment and disposal systems; fees.—

(2) The minimum fees in the following fee schedule apply until changedby rule by the department within the following limits:

(a) Application review, permit issuance, or system inspection, includingrepair of a subsurface, mound, filled, or other alternative system orpermitting of an abandoned system: a fee of not less than $25, or morethan $125.

(b) A 5-year evaluation report submitted pursuant to s. 381.0065(5): a feenot less than $15, or more than $30. At least $1 and nomore than $5 collectedpursuant to this paragraph shall be used to fund a grant program establishedunder s. 381.00656.

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(c)(b) Site evaluation, site reevaluation, evaluation of a system previouslyin use, or a per annum septage disposal site evaluation: a fee of not less than$40, or more than $115.

(d)(c) Biennial Operating permit for aerobic treatment units or perfor-mance-based treatment systems: a fee of not more than $100.

(e)(d) Annual operating permit for systems located in areas zoned forindustrial manufacturing or equivalent uses or where the system is expectedto receive wastewater which is not domestic in nature: a fee of not less than$150, or more than $300.

(f)(e) Innovative technology: a fee not to exceed $25,000.

(g)(f) Septage disposal service, septage stabilization facility, portable ortemporary toilet service, tank manufacturer inspection: a fee of not less than$25, or more than $200, per year.

(h)(g) Application for variance: a fee of not less than $150, or more than$300.

(i)(h) Annual operating permit for waterless, incinerating, or organicwaste composting toilets: a fee of not less than $50, or more than $150.

(j)(i) Aerobic treatment unit or performance-based treatment systemmaintenance entity permit: a fee of not less than $25, or more than $150, peryear.

(k)(j) Reinspection fee per visit for site inspection after system construc-tion approval or for noncompliant system installation per site visit: a fee ofnot less than $25, or more than $100.

(l)(k) Research: An additional $5 fee shall be added to each new systemconstruction permit issued to be used to fund onsite sewage treatment anddisposal system research, demonstration, and training projects. Five dollarsfrom any repair permit fee collected under this section shall be used forfunding the hands-on training centers described in s. 381.0065(3)(j).

(m)(l) Annual operating permit, including annual inspection and anyrequired sampling and laboratory analysis of effluent, for an engineer-designed performance-based system: a fee of not less than $150, or more than$300.

On or before January 1, 2011, the Surgeon General, after consultation withthe Revenue Estimating Conference, shall determine a revenue neutral feeschedule for services provided pursuant to s. 381.0065(5) within theparameters set in paragraph (b). Such determination is not subject to theprovisions of chapter 120. The funds collected pursuant to this subsectionmust be deposited in a trust fund administered by the department, to be usedfor the purposes stated in this section and ss. 381.0065 and 381.00655.

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Section 38. Subsection (9) of section 403.086, Florida Statutes, isamended, and subsection (10) is added to that section, to read:

403.086 Sewage disposal facilities; advanced and secondary wastetreatment.—

(9) The Legislature finds that the discharge of domestic wastewaterthrough ocean outfalls wastes valuable water supplies that should bereclaimed for beneficial purposes to meet public and natural systemsdemands. The Legislature also finds that discharge of domestic wastewaterthrough ocean outfalls compromises the coastal environment, quality of life,and local economies that depend on those resources. The Legislature declaresthat more stringent treatment and management requirements for suchdomestic wastewater and the subsequent, timely elimination of oceanoutfalls as a primary means of domestic wastewater discharge are in thepublic interest.

(a) The construction of new ocean outfalls for domestic wastewaterdischarge and the expansion of existing ocean outfalls for this purpose, alongwith associated pumping and piping systems, are prohibited. Each domesticwastewater ocean outfall shall be limited to the discharge capacity specifiedin the department permit authorizing the outfall in effect on July 1, 2008,which discharge capacity shall not be increased. Maintenance of existing,department-authorized domestic wastewater ocean outfalls and associatedpumping and piping systems is allowed, subject to the requirements of thissection. The department is directed to work with the United StatesEnvironmental Protection Agency to ensure that the requirements of thissubsection are implemented consistently for all domestic wastewaterfacilities in Florida which discharge through ocean outfalls.

(b) The discharge of domestic wastewater through ocean outfalls shallmeet advanced wastewater treatment and management requirements nolater than December 31, 2018. For purposes of this subsection, the term“advanced wastewater treatment and management requirements” meansthe advanced waste treatment requirements set forth in subsection (4), areduction in outfall baseline loadings of total nitrogen and total phosphoruswhich is equivalent to that which would be achieved by the advanced wastetreatment requirements in subsection (4), or a reduction in cumulativeoutfall loadings of total nitrogen and total phosphorus occurring betweenDecember 31, 2008, and December 31, 2025, which is equivalent to thatwhich would be achieved if the advanced waste treatment requirements insubsection (4) were fully implemented beginning December 31, 2018, andcontinued through December 31, 2025. The department shall establish theaverage baseline loadings of total nitrogen and total phosphorus for eachoutfall using monitoring data available for calendar years 2003 through 2007and shall establish required loading reductions based on this baseline. Thebaseline loadings and required loading reductions of total nitrogen and totalphosphorus shall be expressed as an average annual daily loading value. Theadvanced wastewater treatment and management requirements of thisparagraph shall be deemed to be met for any domestic wastewater facility

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discharging through an ocean outfall on July 1, 2008, which has installed nolater than December 31, 2018, a fully operational reuse system comprising100 percent of the facility’s annual average daily flow for reuse activitiesauthorized by the department.

(c) Each domestic wastewater facility that discharges through an oceanoutfall on July 1, 2008, shall install a functioning reuse system no later thanDecember 31, 2025. For purposes of this subsection, a “functioning reusesystem” means an environmentally, economically, and technically feasiblesystem that provides a minimum of 60 percent of the facility’s actual flow onan annual basis for irrigation of public access areas, residential properties, oragricultural crops; aquifer recharge; groundwater recharge; industrial cool-ing; or other acceptable reuse purposes authorized by the department. Forpurposes of this subsection, the term “facility’s actual flow on an annualbasis” means the annual average flow of domestic wastewater dischargingthrough the facility’s ocean outfall, as determined by the department, usingmonitoring data available for calendar years 2003 through 2007. Flowsdiverted Diversion of flows from these facilities to other facilities that provide100 percent reuse of the diverted flows prior to December 31, 2025, shall beconsidered to contribute to meeting the 60 percent 60-percent reuserequirement. For utilities operating more than one outfall, the reuserequirement can be met if the combined actual reuse flows from facilitiesserved by the outfalls is at least 60 percent of the sum of the total actual flowsfrom the these facilities, including flows diverted to other facilities for 100percent reuse prior to December 31, 2025. In the event treatment in additionto the advanced wastewater treatment and management requirementsdescribed in paragraph (b) is needed in order to support a functioningreuse system, such treatment shall be fully operational no later thanDecember 31, 2025.

(d) The discharge of domestic wastewater through ocean outfalls isprohibited after December 31, 2025, except as a backup discharge that is partof a functioning reuse system authorized by the department as provided forin paragraph (c). A backup discharge may occur only during periods ofreduced demand for reclaimed water in the reuse system, such as periods ofwet weather, and shall comply with the advanced wastewater treatment andmanagement requirements of paragraph (b).

(e) The holder of a department permit authorizing the discharge ofdomestic wastewater through an ocean outfall as of July 1, 2008, shall submitto the secretary of the department the following:

1. A detailed plan to meet the requirements of this subsection, includingan identification of all land acquisition and facilities necessary to provide forreuse of the domestic wastewater; an analysis of the costs to meet therequirements; and a financing plan for meeting the requirements, includingidentifying any actions necessary to implement the financing plan, such asbond issuance or other borrowing, assessments, rate increases, fees, othercharges, or other financing mechanisms. The plan shall include a detailedschedule for the completion of all necessary actions and shall be accompanied

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by supporting data and other documentation. The plan shall be submitted nolater than July 1, 2013.

2. No later than July 1, 2016, an update of the plan required insubparagraph 1. documenting any refinements or changes in the costs,actions, or financing necessary to eliminate the ocean outfall discharge inaccordance with this subsection or a written statement that the plan iscurrent and accurate.

(f) By December 31, 2009, and by December 31 every 5 years thereafter,the holder of a department permit authorizing the discharge of domesticwastewater through an ocean outfall shall submit to the secretary of thedepartment a report summarizing the actions accomplished to date and theactions remaining and proposed to meet the requirements of this subsection,including progress toward meeting the specific deadlines set forth inparagraphs (b) through (e). The report shall include the detailed schedulefor and status of the evaluation of reuse and disposal options, preparation ofpreliminary design reports, preparation and submittal of permit applica-tions, construction initiation, construction progress milestones, constructioncompletion, initiation of operation, and continuing operation and main-tenance.

(g) No later than July 1, 2010, and by July 1 every 5 years thereafter, thedepartment shall submit a report to the Governor, the President of theSenate, and the Speaker of the House of Representatives on the implemen-tation of this subsection. The report shall summarize progress to date,including the increased amount of reclaimed water provided and potablewater offsets achieved, and identify any obstacles to continued progress,including all instances of substantial noncompliance.

(h) By February 1, 2012, the department shall submit a report to theGovernor and Legislature detailing the results and recommendations fromphases 1 through 3 of its ongoing study on reclaimed water use.

(i)(h) The renewal of each permit that authorizes the discharge ofdomestic wastewater through an ocean outfall as of July 1, 2008, shall beaccompanied by an order in accordance with s. 403.088(2)(e) and (f) whichestablishes an enforceable compliance schedule consistent with the require-ments of this subsection.

(j) An entity that diverts wastewater flow from a receiving facility thatdischarges domestic wastewater through an ocean outfall must meet the 60percent reuse requirement of paragraph (c). Reuse by the diverting entity ofthe diverted flows shall be credited to the diverting entity. The diverted flowshall also be correspondingly deducted from the receiving facility’s actualflow on an annual basis from which the required reuse is calculated pursuantto paragraph (c), and the receiving facility’s reuse requirement shall berecalculated accordingly.

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(10) The Legislature finds that the discharge of inadequately treated andmanaged domestic wastewater from dozens of small wastewater facilitiesand thousands of septic tanks and other onsite systems in the Florida Keyscompromises the quality of the coastal environment, including nearshore andoffshore waters, and threatens the quality of life and local economies thatdepend on those resources. The Legislature also finds that the only practicaland cost-effective way to fundamentally improve wastewater management inthe Florida Keys is for the local governments in Monroe County, includingthose special districts established for the purpose of collection, transmission,treatment, or disposal of sewage, to timely complete the wastewater orsewage treatment and disposal facilities initiated under the work program ofAdministration Commission rule 28-20, Florida Administrative Code, andtheMonroe County Sanitary MasterWastewater Plan, dated June 2000. TheLegislature therefore declares that the construction and operation ofcomprehensive central wastewater systems in accordance with this subsec-tion is in the public interest. To give effect to those findings, the requirementsof this subsection apply to all domestic wastewater facilities in MonroeCounty, including privately owned facilities, unless otherwise providedunder this subsection.

(a) The discharge of domestic wastewater into surface waters is prohib-ited.

(b) Monroe County, each municipality, and those special districtsestablished for the purpose of collection, transmission, treatment, or disposalof sewage in Monroe County shall complete the wastewater collection,treatment, and disposal facilities within its jurisdiction designated as hotspots in the Monroe County Sanitary Master Wastewater Plan, dated June2000, specifically listed in Exhibits 6-1 through 6-3 of Chapter 6 of the planand mapped in Exhibit F-1 of Appendix F of the plan. The required facilitiesand connections, and any additional facilities or other adjustments requiredby rules adopted by the Administration Commission under s. 380.0552, mustbe completed by December 31, 2015, pursuant to specific schedulesestablished by the commission. Domestic wastewater facilities locatedoutside local government and special district service areas must meet thetreatment and disposal requirements of this subsection by December 31,2015.

(c) After December 31, 2015, all new or expanded domestic wastewaterdischarges must comply with the treatment and disposal requirements ofthis subsection and department rules.

(d) Wastewater treatment facilities having design capacities:

1. Greater than or equal to 100,000 gallons per day must provide basicdisinfection as defined by department rule and the level of treatment which,on a permitted annual average basis, produces an effluent that contains nomore than the following concentrations:

a. Biochemical Oxygen Demand (CBOD5) of 5 mg/l.

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b. Suspended Solids of 5 mg/l.

c. Total Nitrogen, expressed as N, of 3 mg/l.

d. Total Phosphorus, expressed as P, of 1 mg/l.

2. Less than 100,000 gallons per day must provide basic disinfection asdefined by department rule and the level of treatment which, on a permittedannual average basis, produces an effluent that contains no more than thefollowing concentrations:

a. Biochemical Oxygen Demand (CBOD5) of 10 mg/l.

b. Suspended Solids of 10 mg/l.

c. Total Nitrogen, expressed as N, of 10 mg/l.

d. Total Phosphorus, expressed as P, of 1 mg/l.

(e) Class V injection wells, as defined by department or Department ofHealth rule, must meet the following requirements and otherwise complywith department or Department of Health rules, as applicable:

1. If the design capacity of the facility is less than 1 million gallons perday, the injection well must be at least 90 feet deep and cased to a minimumdepth of 60 feet or to such greater cased depth and total well depth as may berequired by department rule.

2. Except as provided in subparagraph 3. for backup wells, if the designcapacity of the facility is equal to or greater than 1 million gallons per day,each primary injection well must be cased to a minimum depth of 2,000 feetor to such greater depth as may be required by department rule.

3. If an injection well is used as a backup to a primary injection well, thefollowing conditions apply:

a. The backup well may be used only when the primary injection well isout of service because of equipment failure, power failure, or the need formechanical integrity testing or repair;

b. The backup well may not be used for more than a total of 500 hoursduring any 5-year period unless specifically authorized in writing by thedepartment;

c. The backup well must be at least 90 feet deep and cased to a minimumdepth of 60 feet, or to such greater cased depth and total well depth as may berequired by department rule; and

d. Fluid injected into the backup well must meet the requirements ofparagraph (d).

(f) The requirements of paragraphs (d) and (e) do not apply to:

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1. Class I injection wells as defined by department rule, including anyauthorized mechanical integrity tests;

2. Authorized mechanical integrity tests associated with Class V wells asdefined by department rule; or

3. The following types of reuse systems authorized by department rule:

a. Slow-rate land application systems;

b. Industrial uses of reclaimed water; and

c. Use of reclaimed water for toilet flushing, fire protection, vehiclewashing, construction dust control, and decorative water features.

However, disposal systems serving as backups to reuse systems must complywith the other provisions of this subsection.

(g) For wastewater treatment facilities in operation as of July 1, 2010,which are located within areas to be served by Monroe County, munici-palities in Monroe County, or those special districts established for thepurpose of collection, transmission, treatment, or disposal of sewage butwhich are owned by other entities, the requirements of paragraphs (d) and (e)do not apply until January 1, 2016. Wastewater operating permits issuedpursuant to this chapter and in effect for these facilities as of June 30, 2010,are extended until December 31, 2015, or until the facility is connected to alocal government central wastewater system, whichever occurs first. Waste-water treatment facilities in operation after December 31, 2015, must complywith the treatment and disposal requirements of this subsection anddepartment rules.

(h) If it is demonstrated that a discharge, even if the discharge isotherwise in compliance with this subsection, will cause or contribute to aviolation of state water quality standards, the department shall:

1. Require more stringent effluent limitations;

2. Order the point or method of discharge changed;

3. Limit the duration or volume of the discharge; or

4. Prohibit the discharge.

(i) All sewage treatment facilities must monitor effluent for total nitrogenand total phosphorus concentration as required by department rule.

(j) The department shall require the levels of operator certification andstaffing necessary to ensure proper operation and maintenance of sewagefacilities.

(k) The department may adopt rules necessary to carry out thissubsection.

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(l) The authority of a local government, including a special district, tomandate connection of a wastewater facility, as defined by department rule,is governed by section 4 of chapter 99-395, Laws of Florida.

Section 39. Section 5 of chapter 99-395, Laws of Florida; and section 6 ofchapter 99-395, Laws of Florida, as amended by section 1 of chapter 2001-337, and section 1 of chapter 2004-455, Laws of Florida, are repealed.

Section 40. Subsection (2) of section 403.1835, Florida Statutes, isreordered and amended, and subsections (3) and (10) of that section areamended, to read:

403.1835 Water pollution control financial assistance.—

(2) As used in For the purposes of this section and s. 403.1837, the term:

(c)(a) “Local governmental agencies” refers to any municipality, county,district, or authority, or any agency thereof, or a combination of two or moreof the foregoing, acting jointly in connection with a project having jurisdictionover collection, transmission, treatment, or disposal of sewage, industrialwastes, stormwater, or other wastes and includes a district or authoritywhose the principal responsibility of which is to provide airport, industrial orresearch park, or port facilities to the public.

(a)(b) “Bonds” means bonds, certificates, or other obligations of indebt-edness issued by the Florida Water Pollution Control Financing corporationunder this section and s. 403.1837.

(b)(c) “Corporation” means the Florida Water Pollution Control Finan-cing Corporation created under s. 403.1837.

(3) The department may provide financial assistance through anyprogram authorized under 33 U.S.C. s. 1383 s.603 of the Federal WaterPollution Control Act (Clean Water Act), Pub. L. No. 92-500, as amended,including, but not limited to, making grants and loans, providing loanguarantees, purchasing loan insurance or other credit enhancements, andbuying or refinancing local debt. This financial assistance must beadministered in accordance with this section and applicable federalauthorities. The department shall administer all programs operated fromfunds secured through the activities of the Florida Water Pollution ControlFinancing corporation under s. 403.1837, to fulfill the purposes of thissection.

(a) The department may make or request the corporation to make loansto local government agencies, which agencies may pledge any revenueavailable to them to repay any funds borrowed.

(b) The department may make or request the corporation to make loans,grants, and deposits to other entities eligible to participate in the financialassistance programs authorized under the Federal Water Pollution ControlAct, or as a result of other federal action, which entities may pledge any

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revenue available to them to repay any funds borrowed. Notwithstanding s.17.57, the departmentmaymake deposits to financial institutions that whichearn less than the prevailing rate for United States Treasury securities thathave with corresponding maturities for the purpose of enabling suchfinancial institutions to make below-market interest rate loans to entitiesqualified to receive loans under this section and the rules of the department.

(c) The department shall administer financial assistance so that at least15 percent of the funding made available each year under this section isreserved for use by small communities during the year it is reserved.

(d) The department may make grants to financially disadvantaged smallcommunities, as defined in s. 403.1838, using funds made available fromgrant allocations on loans authorized under subsection (4). The grants mustbe administered in accordance with s. 403.1838.

(10) The department may adopt rules regarding program administration;project eligibilities and priorities, including the development and manage-ment of project priority lists; financial assistance application requirementsassociated with planning, design, construction, and implementation activ-ities, including environmental and engineering requirements; financialassistance agreement conditions; disbursement and repayment provisions;auditing provisions; program exceptions; the procedural and contractualrelationship between the department and the Florida Water PollutionControl Financing corporation under s. 403.1837; and other provisionsconsistent with the purposes of this section.

Section 41. Section 403.1837, Florida Statutes, is amended to read:

403.1837 Florida Water Pollution Control Financing Corporation.—

(1) The FloridaWater Pollution Control Financing Corporation is createdas a nonprofit public-benefit corporation for the purpose of financing orrefinancing the costs of water pollution control projects and activitiesdescribed in ss. s. 403.1835 and 403.8532. The projects and activitiesdescribed in those sections that section are found to constitute a publicgovernmental purpose; are be necessary for the health, safety, and welfare ofall residents; and include legislatively approved fixed capital outlay projects.Fulfilling The fulfillment of the purposes of the corporation promotes thehealth, safety, and welfare of the people of the state and serves essentialgovernmental functions and a paramount public purpose. The activities ofthe corporation are specifically limited to assisting the department inimplementing financing activities to provide funding for the programsauthorized in ss. s. 403.1835 and 403.8532. All other activities relating tothe purposes for which the corporation raises funds are the responsibility ofthe department, including, but not limited to, development of programcriteria, review of applications for financial assistance, decisions relating tothe number and amount of loans or other financial assistance to be provided,and enforcement of the terms of any financial assistance agreements

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provided through funds raised by the corporation. The corporation shallterminate upon fulfilling fulfillment of the purposes of this section.

(2) The corporation shall be governed by a board of directors consisting ofthe Governor’s Budget Director or the budget director’s designee, the ChiefFinancial Officer or the Chief Financial Officer’s designee, and the Secretaryof Environmental Protection or the secretary’s designee. The executivedirector of the State Board of Administration shall be the chief executiveofficer of the corporation; shall direct and supervise the administrativeaffairs of the corporation; and shall control, direct, and supervise operation ofthe corporation. The corporation shall have such other officers as may bedetermined by the board of directors.

(3) The corporation shall have all the powers of a corporate body underthe laws of the state, consistent to the extent not inconsistent with orrestricted by this section, including, but not limited to, the power to:

(a) Adopt, amend, and repeal bylaws consistent not inconsistent with thissection.

(b) Sue and be sued.

(c) Adopt and use a common seal.

(d) Acquire, purchase, hold, lease, and convey any real and personalproperty as may be proper or expedient to carry out the purposes of thecorporation and this section, and to sell, lease, or otherwise dispose of thatproperty.

(e) Elect or appoint and employ such officers, agents, and employees asthe corporation considers advisable to operate and manage the affairs of thecorporation, who which officers, agents, and employees may be officers oremployees of the department and the state agencies represented on the boardof directors of the corporation.

(f) Borrow money and issue notes, bonds, certificates of indebtedness, orother obligations or evidences of indebtedness described in s. 403.1835 or s.403.8532.

(g) Operate, as specifically directed by the department, any program toprovide financial assistance authorized under s. 403.1835(3) or s.403.8532(3), which may be funded from any funds received under a servicecontract with the department, from the proceeds of bonds issued by thecorporation, or from any other funding sources obtained by the corporation.

(h) Sell all or any portion of the loans issued under s. 403.1835 or s.403.8532 to accomplish the purposes of those sections this section and s.403.1835.

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(i) Make and execute any contracts, trust agreements, and otherinstruments and agreements necessary or convenient to accomplish thepurposes of the corporation and this section.

(j) Select, retain, and employ professionals, contractors, or agents, whichmay include the Division of Bond Finance of the State Board of Adminis-tration, as are necessary or convenient to enable or assist the corporation incarrying out its purposes and this section.

(k) Do any act or thing necessary or convenient to carry out the purposesof the corporation and this section.

(4) The corporation shall evaluate all financial and market conditionsnecessary and prudent for the purpose of making sound, financiallyresponsible, and cost-effective decisions in order to secure additional fundsto fulfill the purposes of this section and ss. s. 403.1835 and 403.8532.

(5) The corporation may enter into one or more service contracts with thedepartment under which the corporation shall provide services to thedepartment in connection with financing the functions, projects, andactivities provided for in ss. s. 403.1835 and 403.8532. The departmentmay enter into one or more service contracts with the corporation andprovide for payments under those contracts pursuant to s. 403.1835(9) or s.403.8533, subject to annual appropriation by the Legislature.

(a) The service contracts may provide for the transfer of all or a portion ofthe funds in the Wastewater Treatment and Stormwater ManagementRevolving Loan Trust Fund and the Drinking Water Revolving Loan TrustFund to the corporation for use by the corporation for costs incurred by thecorporation in its operations, including, but not limited to, payment of debtservice, reserves, or other costs in relation to bonds issued by the corporation,for use by the corporation at the request of the department to directly providethe types of local financial assistance provided for in ss. s. 403.1835(3) and403.8532(3), or for payment of the administrative costs of the corporation.

(b) The department may not transfer funds under any service contractwith the corporation without a specific appropriation for such purpose in theGeneral Appropriations Act, except for administrative expenses incurred bythe State Board of Administration or other expenses necessary underdocuments authorizing or securing previously issued bonds of the corpora-tion. The service contracts may also provide for the assignment or transfer tothe corporation of any loans made by the department.

(c) The service contracts may establish the operating relationshipbetween the department and the corporation and must shall require thedepartment to request the corporation to issue bonds before any issuance ofbonds by the corporation, to take any actions necessary to enforce theagreements entered into between the corporation and other parties, and totake all other actions necessary to assist the corporation in its operations.

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(d) In compliance with s. 287.0641 and other applicable provisions of law,the obligations of the department under the service contracts do notconstitute a general obligation of the state or a pledge of the faith andcredit or taxing power of the state, nor may the obligations be construed inany manner as an obligation of the State Board of Administration or entitiesfor which it invests funds, or of the department except as provided in thissection as payable solely from amounts available under any service contractbetween the corporation and the department, subject to appropriation.

(e) In compliance with this subsection and s. 287.0582, service contractsmust expressly include the following statement: “The State of Florida’sperformance and obligation to pay under this contract is contingent upon anannual appropriation by the Legislature.”

(6) The corporation may issue and incur notes, bonds, certificates ofindebtedness, or other obligations or evidences of indebtedness payable fromand secured by amounts received from payment of loans and other moneysreceived by the corporation, including, but not limited to, amounts payable tothe corporation by the department under a service contract entered intounder subsection (5). The proceeds of the bonds may be used for the purposeof providing funds for projects and activities provided for in subsection (1) orfor refunding bonds previously issued by the corporation. The corporationmay select a financing team and issue obligations through competitivebidding or negotiated contracts, whichever is most cost-effective. Any Suchindebtedness of the corporation does not constitute a debt or obligation of thestate or a pledge of the faith and credit or taxing power of the state.

(7) The corporation is exempt from taxation and assessments of anynature whatsoever upon its income and any property, assets, or revenuesacquired, received, or used in the furtherance of the purposes provided in ss.403.1835, and 403.1838, and 403.8532. The obligations of the corporationincurred under subsection (6) and the interest and income on the obligationsand all security agreements, letters of credit, liquidity facilities, or otherobligations or instruments arising out of, entered into in connection with, orgiven to secure payment of the obligations are exempt from all taxation;however, the exemption does not apply to any tax imposed by chapter 220 onthe interest, income, or profits on debt obligations owned by corporations.

(8) The corporation shall validate any bonds issued under this section,except refunding bonds, which may be validated at the option of thecorporation, by proceedings under chapter 75. The validation complaintmust be filed only in the Circuit Court for Leon County. The notice requiredunder s. 75.06 must be published in Leon County, and the complaint andorder of the circuit court shall be served only on the State Attorney for theSecond Judicial Circuit. Sections 75.04(2) and 75.06(2) do not apply to avalidation complaint filed as authorized in this subsection. The validation ofthe first bonds issued under this section may be appealed to the SupremeCourt, and the appeal shall be handled on an expedited basis.

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(9) The corporation and the department may shall not take any actionthat will materially and adversely affects affect the rights of holders of anyobligations issued under this section as long as the obligations are out-standing.

(10) The corporation is not a special district for purposes of chapter 189 ora unit of local government for purposes of part III of chapter 218. Theprovisions of chapters 120 and 215, except the limitation on interest ratesprovided by s. 215.84, which applies to obligations of the corporation issuedunder this section, and part I of chapter 287, except ss. 287.0582 and287.0641, do not apply to this section, the corporation created in this section,the service contracts entered into under this section, or debt obligationsissued by the corporation as provided in this section.

(11) The benefits or earnings of the corporation may not inure to thebenefit of any private person, except persons receiving grants and loansunder s. 403.1835 or s. 403.8532.

(12) Upon dissolution of the corporation, title to all property owned by thecorporation reverts to the department.

(13) The corporation may contract with the State Board of Administra-tion to serve as trustee with respect to debt obligations issued by thecorporation as provided by this section; to hold, administer, and investproceeds of those debt obligations and other funds of the corporation; and toperform other services required by the corporation. The State Board ofAdministration may perform these services and may contract with others toprovide all or a part of those services and to recover the costs and expenses ofproviding those services.

Section 42. Subsections (2), (3), (9), and (14) of section 403.8532, FloridaStatutes, are amended to read:

403.8532 Drinking water state revolving loan fund; use; rules.—

(2) For purposes of this section, the term:

(a) “Bonds” means bonds, certificates, or other obligations of indebted-ness issued by the corporation under this section and s. 403.1837.

(b) “Corporation” means the Florida Water Pollution Control FinancingCorporation created pursuant to s. 403.1837.

(c)(a) “Financially disadvantaged community” means the service area ofa project to be served by a public water system that meets criteria establishedby department rule and in accordance with federal guidance.

(d)(b) “Local governmental agency” means any municipality, county,district, or authority, or any agency thereof, or a combination of two or moreof the foregoing acting jointly in connection with a project, having jurisdictionover a public water system.

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(e)(c) “Public water system” means all facilities, including land, neces-sary for the treatment and distribution of water for human consumption andincludes public water systems as defined in s. 403.852 and as otherwisedefined in the federal Safe Drinking Water Act, as amended. Such systemsmay be publicly owned, privately owned, investor-owned, or cooperativelyheld.

(f)(d) “Small public water system” means a public water system thatwhich regularly serves fewer than 10,000 people.

(3) The department may is authorized to make, or request that thecorporation make, loans, grants, and deposits to community water systems,nonprofit transient noncommunity water systems, and nonprofit nontran-sient noncommunity water systems to assist them in planning, designing,and constructing public water systems, unless such public water systems arefor-profit privately owned or investor-owned systems that regularly serve1,500 service connections or more within a single certified or franchised area.However, a for-profit privately owned or investor-owned public water systemthat regularly serves 1,500 service connections or more within a singlecertified or franchised area may qualify for a loan only if the proposed projectwill result in the consolidation of two or more public water systems. Thedepartment may is authorized to provide loan guarantees, to purchase loaninsurance, and to refinance local debt through the issue of new loans forprojects approved by the department. Public water systems may areauthorized to borrow funds made available pursuant to this section andmay pledge any revenues or other adequate security available to them torepay any funds borrowed.

(a) The department shall administer loans so that amounts credited tothe Drinking Water Revolving Loan Trust Fund in any fiscal year arereserved for the following purposes:

1.(a) At least 15 percent for to qualifying small public water systems.

2.(b) Up to 15 percent for to qualifying financially disadvantagedcommunities.

(b)(c) However, If an insufficient number of the projects for which fundsare reserved under this subsection paragraph have been submitted to thedepartment at the time the funding priority list authorized under this sectionis adopted, the reservation of these funds shall no longer applies apply. Thedepartment may award the unreserved funds as otherwise provided in thissection.

(9) The department may adopt rules regarding the procedural andcontractual relationship between the department and the corporationunder s. 403.1837 and is authorized to make rules necessary to carry outthe purposes of this section and the federal Safe Drinking Water Act, asamended. Such rules shall:

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(a) Set forth a priority system for loans based on public healthconsiderations, compliance with state and federal requirements relating topublic drinking water systems, and affordability. The priority system shallgive special consideration to the following:

1. Projects that provide for the development of alternative drinking watersupply projects and management techniques in areas where existing sourcewaters are limited or threatened by saltwater intrusion, excessive draw-downs, contamination, or other problems;

2. Projects that provide for a dependable, sustainable supply of drinkingwater and that are not otherwise financially feasible; and

3. Projects that contribute to the sustainability of regional water sources.

(b) Establish the requirements for the award and repayment of financialassistance.

(c) Require evidence of credit worthiness and adequate security, includ-ing an identification of revenues to be pledged, and documentation of theirsufficiency for loan repayment and pledged revenue coverage, to ensure thateach loan recipient can meet its loan repayment requirements.

(d) Require each project receiving financial assistance to be cost-effective,environmentally sound, implementable, and self-supporting.

(e) Implement other provisions of the federal Safe DrinkingWater Act, asamended.

(14) All moneys available for financial assistance under this section shallbe deposited in The Drinking Water Revolving Loan Trust Fund establishedunder s. 403.8533 shall be used exclusively to carry out the purposes of thissection. Any funds that therein which are not needed on an immediate basisfor financial assistance shall be invested pursuant to s. 215.49. Staterevolving fund capitalization grants awarded by the Federal Government,state matching funds, and investment earnings thereon shall be depositedinto the fund. The principal and interest of all loans repaid and investmentearnings thereon shall be deposited into the fund.

Section 43. Section 403.8533, Florida Statutes, is amended to read:

403.8533 Drinking Water Revolving Loan Trust Fund.—

(1) There is created the DrinkingWater Revolving Loan Trust Fund to beadministered by the Department of Environmental Protection for thepurposes of:

(a) Funding for low-interest loans for planning, engineering design, andconstruction of public drinking water systems and improvements to suchsystems;

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(b) Funding for compliance activities, operator certification programs,and source water protection programs; and

(c) Funding for administering loans by the department; and.

(d) Paying amounts payable under any service contract entered into bythe department under s. 403.1837, subject to annual appropriation by theLegislature.

(2) The trust fund shall be used for the deposit of all moneys awarded bythe Federal Government to fund revolving loan programs. All moneys in thefund that are not needed on an immediate basis for loans shall be investedpursuant to s. 215.49. The principal and interest of all loans repaid andinvestment earnings shall be deposited into this fund.

(3) Pursuant to s. 19(f)(3), Art. III of the State Constitution, the DrinkingWater Revolving Loan Trust Fund is exempt from the termination provisionsof s. 19(f)(2), Art. III of the State Constitution.

Section 44. Subsection (6) of section 369.317, Florida Statutes, isamended to read:

369.317 Wekiva Parkway.—

(6) The Orlando-Orange County Expressway Authority is hereby grantedthe authority to act as a third-party acquisition agent, pursuant to s. 259.041on behalf of the Board of Trustees or chapter 373 on behalf of the governingboard of the St. Johns River Water Management District, for the acquisitionof all necessary lands, property and all interests in property identifiedherein, including fee simple or less-than-fee simple interests. The landssubject to this authority are identified in paragraph 10.a., State of Florida,Office of the Governor, Executive Order 03-112 of July 1, 2003, and inRecommendation 16 of the Wekiva Basin Area Task Force created byExecutive Order 2002-259, such lands otherwise known as NeighborhoodLakes, a 1,587+/- acre parcel located in Orange and Lake Counties withinSections 27, 28, 33, and 34 of Township 19 South, Range 28 East, andSections 3, 4, 5, and 9 of Township 20 South, Range 28 East; SeminoleWoods/Swamp, a 5,353+/- acre parcel located in Lake County within Section 37,Township 19 South, Range 28 East; New Garden Coal; a 1,605+/- acre parcelin Lake County within Sections 23, 25, 26, 35, and 36, Township 19 South,Range 28 East; Pine Plantation, a 617+/- acre tract consisting of eightindividual parcels within the Apopka City limits. The Department ofTransportation, the Department of Environmental Protection, the St.Johns River Water Management District, and other land acquisition entitiesshall participate and cooperate in providing information and support to thethird-party acquisition agent. The land acquisition process authorized bythis paragraph shall begin no later than December 31, 2004. Acquisition ofthe properties identified as Neighborhood Lakes, Pine Plantation, and NewGarden Coal, or approval as a mitigation bank shall be concluded no laterthan December 31, 2010. Department of Transportation andOrlando-Orange

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County Expressway Authority funds expended to purchase an interest inthose lands identified in this subsection shall be eligible as environmentalmitigation for road construction related impacts in theWekiva Study Area. Ifany of the lands identified in this subsection are used as environmentalmitigation for road construction related impacts incurred by the Departmentof Transportation or Orlando-Orange County Expressway Authority, or forother impacts incurred by other entities, within the Wekiva Study Area orwithin the Wekiva parkway alignment corridor, and if the mitigation offsetsthese impacts, the St. Johns River Water Management District and theDepartment of Environmental Protection shall consider the activity regu-lated under part IV of chapter 373 to meet the cumulative impactrequirements of s. 373.414(8)(a).

Section 45. Subsection (20) is added to section 215.47, Florida Statutes,to read:

215.47 Investments; authorized securities; loan of securities.—Subject tothe limitations and conditions of the State Constitution or of the trustagreement relating to a trust fund, moneys available for investments underss. 215.44-215.53 may be invested as follows:

(20) The State Board of Administration, consistent with its fiduciaryduties, may invest net assets of the system trust fund in projects deemedeligible under the provisions of s. 373.707.

Section 46. Subsection (8) is added to section 373.129, Florida Statutes,to read:

373.129 Maintenance of actions.—The department, the governing boardof any water management district, any local board, or a local government towhich authority has been delegated pursuant to s. 373.103(8), is authorizedto commence and maintain proper and necessary actions and proceedings inany court of competent jurisdiction for any of the following purposes:

(8) In conflicts arising where a water management district is a party tolitigation against another governmental entity, as defined in s. 164.1031, adistrict has an affirmative duty to engage in alternative dispute resolution ingood faith as required by chapter 164.

Section 47. Paragraph (b) of subsection (9) of section 403.707, FloridaStatutes, is amended to read:

403.707 Permits.—

(9) The department shall establish a separate category for solid wastemanagement facilities that accept only construction and demolition debrisfor disposal or recycling. The department shall establish a reasonableschedule for existing facilities to comply with this section to avoid unduehardship to such facilities. However, a permitted solid waste disposal unitthat receives a significant amount of waste prior to the compliance deadline

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established in this schedule shall not be required to be retrofitted with linersor leachate control systems.

(b) The department shall not require liners and leachate collectionsystems at individual disposal units and lateral expansions of existingdisposal units that have not received a department permit authorizingconstruction or operation prior to July 1, 2010, facilities unless the owner oroperator it demonstrates, based upon the types of waste received, themethods for controlling types of waste disposed of, the proximity of thegroundwater and surface water, and the results of the hydrogeological andgeotechnical investigations, that the facility is not reasonably expected toresult in violations of the groundwater standards and criteria if built withouta liner otherwise.

Section 48. Section 298.66, Florida Statutes, is amended to read:

298.66 Obstruction of public drainage canals, etc., prohibited; damages;penalties.—

(1) A No personmay not willfully, or otherwise, obstruct any public canal,drain, ditch or watercourse or damage or destroy any public drainage worksconstructed in or maintained by any district.

(2)(1) Any person who shall willfully obstructs obstruct any public canal,drain, ditch, or watercourse or damages or destroys shall damage or destroyany public drainage works constructed in or maintained by any district, shallbe liable to any person injured thereby for the full amount of the injuryoccasioned to any land or crops or other property by reason of suchmisconduct, and shall be liable to the district constructing the drainagesaid work for double the cost of removing such obstruction or repairing suchdamage.

(3)(2) Any person who Whoever shall willfully, or otherwise, obstructsobstruct any public canal, drain, ditch, or watercourse, impedes or obstructsor impede or obstruct the flow of water therein, or damages or destroys shalldamage or destroy any public drainage works constructed in or maintainedby any district commits shall be guilty of a felony of the third degree,punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 49. It is the intent of the Legislature that the creation of part VIIof chapter 373, Florida Statutes, is to reorganize certain existing provisionsof part I of chapter 373, Florida Statutes, and does not make any substantivechanges to existing law or judicial interpretation thereof. It is further theintent of the Legislature that any legislation enacted during the 2010Regular Session and any extension thereof affecting ss. 373.0361, 373.0391,373.0831, 373.196, 373.1961, 373.1962, and 373.1963, Florida Statutes,either before or after this act becomes law, be given full force and effectsubstantively and that such new substantive provisions of law shall beintegrated into ss. 373.703, 373.705, 373.707, 373.709, 373.711, 373.713, and373.715, Florida Statutes, as created by this act.

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Section 50. Subsection (1) of section 373.0361, Florida Statutes, isamended to read:

373.0361 Regional water supply planning.—

(1) The governing board of each water management district shall conductwater supply planning for any water supply planning region within thedistrict identified in the appropriate district water supply plan under s.373.036, where it determines that existing sources of water are not adequateto supply water for all existing and future reasonable-beneficial uses and tosustain the water resources and related natural systems for the planningperiod. The planning must be conducted in an open public process, incoordination and cooperation with local governments, regional water supplyauthorities, government-owned and privately owned water and wastewaterutilities, multijurisdictional water supply entities, self-suppliers, reuseutilities, the department, and other affected and interested parties. Thedistricts shall actively engage in public education and outreach to all affectedlocal entities and their officials, as well as members of the public, in theplanning process and in seeking input. During preparation, but prior tocompletion of the regional water supply plan, the district must conduct atleast one public workshop to discuss the technical data and modeling toolsanticipated to be used to support the regional water supply plan. The districtshall also hold several public meetings to communicate the status, overallconceptual intent, and impacts of the plan on existing and future reasonable-beneficial uses and related natural systems. During the planning process, alocal government may choose to prepare its own water supply assessment todetermine if existing water sources are adequate to meet existing andprojected reasonable-beneficial needs of the local government while sustain-ing water resources and related natural systems. The local government shallsubmit such assessment, including the data and methodology used, to thedistrict. The district shall consider the local government’s assessment duringthe formation of the plan. A determination by the governing board thatinitiation of a regional water supply plan for a specific planning region is notneeded pursuant to this section shall be subject to s. 120.569. The governingboard shall reevaluate such a determination at least once every 5 years andshall initiate a regional water supply plan, if needed, pursuant to thissubsection.

Section 51. Subsection (4) of section 373.079, Florida Statutes, isamended to read:

373.079 Members of governing board; oath of office; staff.—

(4)(a) The governing board of the district shall is authorized to employ:

(a) An executive director, ombudsman, and such engineers, otherprofessional persons, and other personnel and assistants as it deemsnecessary and under such terms and conditions as it may determine andto terminate such employment. The appointment of an executive director bythe governing board is subject to approval by the Governor and must be

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initially confirmed by the Florida Senate. The governing board may delegateall or part of its authority under this paragraph to the executive director.However, the governing board shall delegate to the executive director all ofits authority to take final action on permit applications under part II or partIV or petitions for variances or waivers of permitting requirements underpart II or part IV, except for denials of such actions as provided in s.373.083(5).

1. The executive director may execute such delegated authority throughdesignated staff members. Such delegations shall not be subject to therulemaking requirements of chapter 120. The governing board must providea process for referring a denial of such application or petition to the governingboard for the purpose of taking final action. The executive director must beconfirmed by the Senate upon employment and must be confirmed orreconfirmed by the Senate during the second regular session of theLegislature following a gubernatorial election.

2. The delegation required by this paragraph shall expressly prohibitgoverning board members from individually intervening in any mannerduring the review of an application before such application is referred to thegoverning board for final action. This subparagraph does not prohibit thegoverning board as a collegial body from acting on any permit application orsupervising, overseeing, or directing the activities of district staff. Thissubparagraph expires June 1, 2011, unless reenacted by the Legislature.

(b)1. The governing board of each water management district shallemploy An inspector general, who shall report directly to the board.However, the governing boards of the Suwannee River Water ManagementDistrict and the Northwest Florida Water Management District may jointlyemploy an inspector general, or provide for inspector general services byinteragency agreement with a state agency or water management districtinspector general.

2. An inspector general must have the same qualifications prescribed andperform the applicable duties of state agency inspectors general as providedin s. 20.055.

Section 52. Subsection (5) of section 373.083, Florida Statutes, isamended to read:

373.083 General powers and duties of the governing board.—In additionto other powers and duties allowed it by law, the governing board isauthorized to:

(5) Execute any of the powers, duties, and functions vested in thegoverning board through a member or members thereof, the executivedirector, or other district staff as designated by the governing board. Thegoverning board may establish the scope and terms of any delegation and nodelegation shall be subject to the rulemaking requirements of chapter 120.However, if the governing board delegates shall delegate to the executive

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director all of its authority to take final action on permit applications underpart II or part IV or petitions for variances or waivers of permittingrequirements under part II or part IV, and the executive director mayexecute such delegated authority through designated staff. Such delegationsshall not be subject to the rulemaking requirements of chapter 120. However,the governing board must shall provide a process for referring a any denial ofsuch application or petition to the governing board for the purpose of takingto take final action. Such process shall expressly prohibit any member of agoverning board from intervening in any manner during the review of anapplication prior to such application being referred to the governing board forfinal action. The authority to delegate under in this subsection is supple-mental to any other provision of this chapter granting authority to thegoverning board to delegate specific powers, duties, or functions.

Section 53. Subsection (1) of section 373.085, Florida Statutes, isamended to read:

373.085 Use of works or land by other districts or private persons.—

(1)(a) In order to promote water quantity and water resource develop-ment, projects that improve flood control, and conservation of lands, thedistrict and other governmental agencies shall encourage public-privatepartnerships by collaborating, when possible, with those partnerships whenprocuring materials for infrastructure and restoration work projects,consistent with district and state procurement procedures.

(b) The governing board has authority to prescribe the manner in whichlocal works provided by other districts or by private persons will connect withand make use of the works or land of the district, to issue permits therefor,and to cancel the permits for noncompliance with the conditions thereof or forother cause. It is unlawful to connect with or make use of the works or land ofthe district without consent in writing from its governing board, and theboard has authority to prevent or, if done, estop or terminate the same. Theuse of the works or land of the district for access is governed by this sectionand is not subject to the provisions of s. 704.01. However, any land or works ofthe district which have historically been used for public access to the ocean bymeans of the North New River Canal and its tributaries may not be closed forthis purpose unless the district can demonstrate that significant harm to theresource would result from such public use.

Section 54. Subsection (5) is added to section 373.118, Florida Statutes,to read:

373.118 General permits; delegation.—

(5) To improve efficiency, the governing board may delegate its powersand duties pertaining to general permits to the executive director. Theexecutive director may execute such delegated authority through designatedstaff. However, when delegating the authority to take final action on permitapplications under part II or petitions for variances or waivers of permitting

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requirements under part II, the governing board must provide a process forreferring a denial of such application or petition to the governing board forthe purpose of taking final action. Such delegations are not subject to therulemaking requirements of chapter 120.

Section 55. Subsection (4) of section 373.236, Florida Statutes, isamended to read:

373.236 Duration of permits; compliance reports.—

(4) Where necessary to maintain reasonable assurance that the condi-tions for issuance of a 20-year permit can continue to be met, the governingboard or department, in addition to any conditions required pursuant to s.373.219, may require a compliance report by the permittee every 10 5 yearsduring the term of a permit. The Suwannee River Water ManagementDistrict may require a compliance report by the permittee every 5 yearsthrough July 1, 2015, and thereafter every 10 years during the term of thepermit. This report shall contain sufficient data to maintain reasonableassurance that the initial conditions for permit issuance are met. Followingreview of this report, the governing board or the department may modify thepermit to ensure that the use meets the conditions for issuance. Permitmodifications pursuant to this subsection shall not be subject to competingapplications, provided there is no increase in the permitted allocation orpermit duration, and no change in source, except for changes in sourcerequested by the district. This subsection shall not be construed to limit theexisting authority of the department or the governing board to modify orrevoke a consumptive use permit.

Section 56. Paragraphs (c) and (d) are added to subsection (3) of section373.250, Florida Statutes, subsections (4) and (5) of that section arerenumbered as subsections (5) and (6), respectively, and a new subsection(4) is added to that section, to read:

373.250 Reuse of reclaimed water.—

(3) The water management district shall, in consultation with thedepartment, adopt rules to implement this section. Such rules shall include,but not be limited to:

(c) Provisions to require permit applicants to provide, as part of theirreclaimed water feasibility evaluation for a nonpotable use, writtendocumentation from a reuse utility addressing the availability of reclaimedwater. This requirement shall apply when the applicant’s proposed use iswithin an area that is or may be served with reclaimed water by a reuseutility within a 5-year horizon, as established by the reuse utility andprovided to the district. If the applicable reuse utility fails to respond or doesnot provide the information required under paragraph (d) within 30 daysafter receipt of the request, the applicant shall provide to the district a copy ofthe written request and a statement that the utility failed to provide therequested information. The district is not required to adopt, by rule, the area

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where written documentation from a reuse utility is required, but the districtshall publish the area, and any updates thereto, on the district’s website.This paragraph may not be construed to limit the ability of a district torequire the use of reclaimed water or to limit a utility’s ability to planreclaimed water infrastructure.

(d) Provisions specifying the content of the documentation required inparagraph (c), including sufficient information regarding the availability andcosts associated with the connection to and the use of reclaimed water, tofacilitate the permit applicant’s reclaimed water feasibility evaluation.

(4) Reuse utilities and the applicable water management district ordistricts are encouraged to periodically coordinate and share informationconcerning the status of reclaimed water distribution system construction,the availability of reclaimed water supplies, and existing consumptive usepermits in areas served by the reuse utility.

Section 57. The water management districts shall initiate rulemaking nolater than July 1, 2011, to implement the requirements of s. 373.250(3)(c) and(d), Florida Statutes, as created by this act.

Section 58. (1) The Legislature finds the following with respect tonutrient water quality standards:

(a) Nutrients are essential for the biological health and productivity ofFlorida waters.

(b) A delicate relationship exists between the level of nutrients in awaterbody and its health and productivity.

(c) Increasing the level of nutrients in combination with site-specificconditions can cause impairment to a waterbody.

(d) The establishment of numeric nutrient criteria in a manner that failsto take into account site-specific factors may result in criteria that lackadequate scientific support and cause unintended environmental andeconomic consequences.

(e) The total maximum daily load program is the best mechanism forestablishing numeric nutrient standards for nutrient-impaired waterbodiesand restoring nutrient-impaired waterbodies, and consistent with thecongressional intent expressed in the CleanWater Act, any numeric nutrientcriteria established pursuant to s. 303(c) of the Clean Water Act should workin concert with the total maximum daily load program, the state stormwatertreatment rule, and other water quality programs.

(f) The state currently implements a narrative nutrient criterion and,while complicated, the establishment of sound science-based numericnutrient criteria to complement the narrative criterion would enhance theability of the state to achieve a balance of adequate nutrients to sustain

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aquatic life while not allowing excess nutrients that will alter the aquaticecosystem.

(g) The state’s reclaimed lakes, canals, and ditches represent uniquesurface waters for which alternative uses and associated criteria areappropriate.

(2) The Legislature further finds the following with respect to the UnitedStates Environmental Protection Agency’s nutrient water quality criteriarulemaking:

(a) The agency’s January 2010 proposed water quality standards for thestate fail to take into account the unique characteristics of the state’s manythousands of rivers, streams, and canals.

(b) The agency’s January 2010 proposed water quality standards fail toincorporate, and may undermine, the state’s science-based total maximumdaily loads program.

(c) The finalization and implementation of the agency’s January 2010proposed water quality standards will have severe economic consequences onthe state’s agriculture, local governments, wastewater utilities, economicallyvital industries, small businesses, and residents living below the povertylevel or on fixed incomes.

Section 59. Subsections (1), (2), and (3) of section 220.1845, FloridaStatutes, are renumbered as subsections (2), (3), and (4), respectively, and anew subsection (1) is added to that section to read:

220.1845 Contaminated site rehabilitation tax credit.—

(1) APPLICATION FOR TAX CREDIT.—A site rehabilitation applica-tion must be received by the Division of Waste Management of theDepartment of Environmental Protection by January 31 of the year afterthe calendar year for which site rehabilitation costs are being claimed in atax credit application. All site rehabilitation costs claimed must have beenfor work conducted between January 1 and December 31 of the year for whichthe application is being submitted. All payment requests must have beenreceived and all costs must have been paid prior to submittal of the tax creditapplication, but no later than January 31 of the year after the calendar yearfor which site rehabilitation costs are being claimed.

Section 60. Paragraph (a) of subsection (5), paragraph (c) of subsection(6), and subsections (9) and (10) of section 376.30781, Florida Statutes, areamended to read:

376.30781 Tax credits for rehabilitation of drycleaning-solvent-contami-nated sites and brownfield sites in designated brownfield areas; applicationprocess; rulemaking authority; revocation authority.—

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(5) To claim the credit for site rehabilitation or solid waste removal, eachtax credit applicant must apply to the Department of EnvironmentalProtection for an allocation of the $2 million annual credit by filing a taxcredit application with the Division of Waste Management on a formdeveloped by the Department of Environmental Protection in cooperationwith the Department of Revenue. The form shall include an affidavit fromeach tax credit applicant certifying that all information contained in theapplication, including all records of costs incurred and claimed in the taxcredit application, are true and correct. If the application is submittedpursuant to subparagraph (3)(a)2., the form must include an affidavit signedby the real property owner stating that it is not, and has never been, theowner or operator of the drycleaning facility where the contamination exists.Approval of tax credits must be accomplished on a first-come, first-servedbasis based upon the date and time complete applications are received by theDivision of Waste Management, subject to the limitations of subsection (14).To be eligible for a tax credit, the tax credit applicant must:

(a) For site rehabilitation tax credits, have entered into a voluntarycleanup agreement with the Department of Environmental Protection for adrycleaning-solvent-contaminated site or a Brownfield Site RehabilitationAgreement, as applicable, and have paid all deductibles pursuant to s.376.3078(3)(e) for eligible drycleaning-solvent-cleanup program sites, asapplicable. A site rehabilitation tax credit applicant must submit only asingle completed application per site for each calendar year’s site rehabilita-tion costs. A site rehabilitation application must be received by the Divisionof Waste Management of the Department of Environmental Protection byJanuary 31 of the year after the calendar year for which site rehabilitationcosts are being claimed in a tax credit application. All site rehabilitation costsclaimed must have been for work conducted between January 1 andDecember 31 of the year for which the application is being submitted. Allpayment requests must have been received and all costs must have been paidprior to submittal of the tax credit application, but no later than January 31of the year after the calendar year for which site rehabilitation costs arebeing claimed.

(6) To obtain the tax credit certificate, the tax credit applicant mustprovide all pertinent information requested on the tax credit applicationform, including, at a minimum, the name and address of the tax creditapplicant and the address and tracking identification number of the eligiblesite. Along with the tax credit application form, the tax credit applicant mustsubmit the following:

(c) Proof that the documentation submitted pursuant to paragraph (b)has been reviewed and verified by an independent certified public accountantin accordance with standards established by the American Institute ofCertified Public Accountants. Specifically, a certified public accountant’sreport must be submitted and the certified public accountant must attest tothe accuracy and validity of the costs claimed incurred and paid during thetime period covered in the application by conducting an independent reviewof the data presented by the tax credit applicant. Accuracy and validity of

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costs incurred and paid shall be determined after the level of effort is certifiedby an appropriate professional registered in this state in each contributingtechnical discipline. The certified public accountant’s report must also attestthat the costs included in the application form are not duplicated within theapplication, that all payment requests were received and all costs were paidprior to submittal of the tax credit application, and, for site rehabilitation taxcredits, that all costs claimed are for work conducted between January 1 andDecember 31 of the year for which the application is being submitted. A copyof the accountant’s report shall be submitted to the Department ofEnvironmental Protection in addition to the accountant’s certificationform in the tax credit application; and

(9) On or before May 1, the Department of Environmental Protectionshall inform each tax credit applicant that is subject to the January 31annual application deadline of the applicant’s eligibility status and theamount of any tax credit due. The department shall provide each eligible taxcredit applicant with a tax credit certificate that must be submitted with itstax return to the Department of Revenue to claim the tax credit or betransferred pursuant to s. 220.1845(2)(g) s. 220.1845(1)(g). The May 1deadline for annual site rehabilitation tax credit certificate awards shall notapply to any tax credit application for which the department has issued anotice of deficiency pursuant to subsection (8). The department shall respondwithin 90 days after receiving a response from the tax credit applicant tosuch a notice of deficiency. Credits may not result in the payment of refunds iftotal credits exceed the amount of tax owed.

(10) For solid waste removal, new health care facility or health careprovider, and affordable housing tax credit applications, the Department ofEnvironmental Protection shall inform the applicant of the department’sdetermination within 90 days after the application is deemed complete. Eacheligible tax credit applicant shall be informed of the amount of its tax creditand provided with a tax credit certificate that must be submitted with its taxreturn to the Department of Revenue to claim the tax credit or be transferredpursuant to s. 220.1845(2)(g) s. 220.1845(1)(g). Credits may not result in thepayment of refunds if total credits exceed the amount of tax owed.

Section 61. Section 376.85, Florida Statutes, is amended to read:

376.85 Annual report.—The Department of Environmental Protectionshall prepare and submit an annual report to the President of the Senate andthe Speaker of the House of Representatives by August 1 of each year a reportthat includes Legislature, beginning in December 1998, which shall include,but is not be limited to, the number, size, and locations of brownfield sites:that have been remediated under the provisions of this act,; that arecurrently under rehabilitation pursuant to a negotiated site rehabilitationagreement with the department or a delegated local program,; wherealternative cleanup target levels have been established pursuant to s.376.81(1)(g)3.,; and, where engineering and institutional control strategiesare being employed as conditions of a “no further action order” to maintainthe protections provided in s. 376.81(1)(g)1. and 2.

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Section 62. Section 403.973, Florida Statutes, is amended to read:

403.973 Expedited permitting; amendments to comprehensive plansplan amendments.—

(1) It is the intent of the Legislature to encourage and facilitate thelocation and expansion of those types of economic development projectswhich offer job creation and high wages, strengthen and diversify the state’seconomy, and have been thoughtfully planned to take into consideration theprotection of the state’s environment. It is also the intent of the Legislature toprovide for an expedited permitting and comprehensive plan amendmentprocess for such projects.

(2) As used in this section, the term:

(a) “Duly noticed” means publication in a newspaper of general circula-tion in the municipality or county with jurisdiction. The notice shall appearon at least 2 separate days, one of which shall be at least 7 days before themeeting. The notice shall state the date, time, and place of the meetingscheduled to discuss or enact the memorandum of agreement, and the placeswithin the municipality or county where such proposed memorandum ofagreement may be inspected by the public. The notice must be one-eighth of apage in size and must be published in a portion of the paper other than thelegal notices section. The notice shall also advise that interested parties mayappear at the meeting and be heard with respect to the memorandum ofagreement.

(b) “Jobs”means permanent, full-time equivalent positions not includingconstruction jobs.

(c) “Office” means the Office of Tourism, Trade, and Economic Develop-ment.

(d) “Permit applications” means state permits and licenses, and at theoption of a participating local government, local development permits ororders.

(e) “Secretary” means the Secretary of Environmental Protection or hisor her designee.

(3)(a) The secretary Governor, through the office, shall direct the creationof regional permit action teams, for the purpose of expediting review ofpermit applications and local comprehensive plan amendments submittedby:

1. Businesses creating at least 50 100 jobs;, or

2. Businesses creating at least 25 50 jobs if the project is located in anenterprise zone, or in a county having a population of fewer less than 75,000or in a county having a population of fewer less than 125,000 100,000 which iscontiguous to a county having a population of fewer less than 75,000, as

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determined by the most recent decennial census, residing in incorporatedand unincorporated areas of the county., or

(b) On a case-by-case basis and at the request of a county or municipalgovernment, the office may certify as eligible for expedited review a projectnot meeting the minimum job creation thresholds but creating a minimum of10 jobs. The recommendation from the governing body of the county ormunicipality in which the project may be located is required in order for theoffice to certify that any project is eligible for expedited review under thisparagraph. When considering projects that do not meet the minimum jobcreation thresholds but that are recommended by the governing body inwhich the project may be located, the office shall consider economic impactfactors that include, but are not limited to:

1. The proposed wage and skill levels relative to those existing in the areain which the project may be located;

2. The project’s potential to diversify and strengthen the area’s economy;

3. The amount of capital investment; and

4. The number of jobs that will be made available for persons served bythe welfare transition program.

(c) At the request of a county or municipal government, the office or aQuick Permitting County may certify projects located in counties where theratio of new jobs per participant in the welfare transition program, asdetermined by Workforce Florida, Inc., is less than one or otherwise critical,as eligible for the expedited permitting process. Such projects must meet thenumerical job creation criteria of this subsection, but the jobs created by theproject do not have to be high-wage jobs that diversify the state’s economy.

(d) Projects located in a designated brownfield area are eligible for theexpedited permitting process.

(e) Projects that are part of the state-of-the-art biomedical researchinstitution and campus to be established in this state by the grantee under s.288.955 are eligible for the expedited permitting process, if the projects aredesignated as part of the institution or campus by the board of countycommissioners of the county in which the institution and campus areestablished.

(f) Projects resulting in the production of biofuels cultivated on lands thatare 1,000 acres or more or in the construction of a biofuel or biodieselprocessing facility or a facility generating renewable energy, as defined in s.366.91(2)(d), are eligible for the expedited permitting process.

(4) The regional teams shall be established through the execution ofmemoranda of agreement developed by the applicant and the secretary, withinput solicited from between the office and the respective heads of theDepartment of Environmental Protection, the Department of Community

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Affairs, the Department of Transportation and its district offices, theDepartment of Agriculture and Consumer Services, the Fish and WildlifeConservation Commission, appropriate regional planning councils, appro-priate water management districts, and voluntarily participating munici-palities and counties. The memoranda of agreement should also accommo-date participation in this expedited process by other local governments andfederal agencies as circumstances warrant.

(5) In order to facilitate local government’s option to participate in thisexpedited review process, the secretary office shall, in cooperation with localgovernments and participating state agencies, create a standard formmemorandum of agreement. A local government shall hold a duly noticedpublic workshop to review and explain to the public the expedited permittingprocess and the terms and conditions of the standard form memorandum ofagreement.

(6) The local government shall hold a duly noticed public hearing toexecute a memorandum of agreement for each qualified project. Notwith-standing any other provision of law, and at the option of the localgovernment, the workshop provided for in subsection (5) may be conductedon the same date as the public hearing held under this subsection. Thememorandum of agreement that a local government signs shall include aprovision identifying necessary local government procedures and time limitsthat will be modified to allow for the local government decision on the projectwithin 90 days. Thememorandum of agreement applies to projects, on a case-by-case basis, that qualify for special review and approval as specified in thissection. The memorandum of agreement must make it clear that thisexpedited permitting and review process does not modify, qualify, orotherwise alter existing local government nonprocedural standards forpermit applications, unless expressly authorized by law.

(7) At the option of the participating local government, Appeals of localgovernment comprehensive plan approvals its final approval for a projectshall may be pursuant to the summary hearing provisions of s. 120.574,pursuant to subsection (14), and consolidated with the challenge of anyapplicable state agency actions or pursuant to other appellate processesavailable to the local government. The local government’s decision to enterinto a summary hearing must be made as provided in s. 120.574 or in thememorandum of agreement.

(8) Each memorandum of agreement shall include a process for finalagency action on permit applications and local comprehensive plan amend-ment approvals within 90 days after receipt of a completed application,unless the applicant agrees to a longer time period or the secretary officedetermines that unforeseen or uncontrollable circumstances preclude finalagency action within the 90-day timeframe. Permit applications governed byfederally delegated or approved permitting programs whose requirementswould prohibit or be inconsistent with the 90-day timeframe are exempt fromthis provision, but must be processed by the agency with federally delegatedor approved program responsibility as expeditiously as possible.

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(9) The secretary office shall inform the Legislature by October 1 of eachyear which agencies have not entered into or implemented an agreement andidentify any barriers to achieving success of the program.

(10) The memoranda of agreement may provide for the waiver ormodification of procedural rules prescribing forms, fees, procedures, ortime limits for the review or processing of permit applications under thejurisdiction of those agencies that are party to the memoranda of agreement.Notwithstanding any other provision of law to the contrary, a memorandumof agreement must to the extent feasible provide for proceedings andhearings otherwise held separately by the parties to the memorandum ofagreement to be combined into one proceeding or held jointly and at onelocation. Such waivers or modifications shall not be available for permitapplications governed by federally delegated or approved permittingprograms, the requirements of which would prohibit, or be inconsistentwith, such a waiver or modification.

(11) The standard form for memoranda of agreement shall includeguidelines to be used in working with state, regional, and local permittingauthorities. Guidelines may include, but are not limited to, the following:

(a) A central contact point for filing permit applications and localcomprehensive plan amendments and for obtaining information on permitand local comprehensive plan amendment requirements;

(b) Identification of the individual or individuals within each respectiveagency who will be responsible for processing the expedited permitapplication or local comprehensive plan amendment for that agency;

(c) A mandatory preapplication review process to reduce permittingconflicts by providing guidance to applicants regarding the permits neededfrom each agency and governmental entity, site planning and development,site suitability and limitations, facility design, and steps the applicant cantake to ensure expeditious permit application and local comprehensive planamendment review. As a part of this process, the first interagency meeting todiscuss a project shall be held within 14 days after the secretary’s office’sdetermination that the project is eligible for expedited review. Subsequentinteragency meetings may be scheduled to accommodate the needs ofparticipating local governments that are unable to meet public noticerequirements for executing a memorandum of agreement within thistimeframe. This accommodation may not exceed 45 days from the secretary’soffice’s determination that the project is eligible for expedited review;

(d) The preparation of a single coordinated project description form andchecklist and an agreement by state and regional agencies to reduce theburden on an applicant to provide duplicate information tomultiple agencies;

(e) Establishment of a process for the adoption and review of anycomprehensive plan amendment needed by any certified project within 90days after the submission of an application for a comprehensive plan

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amendment. However, the memorandum of agreement may not preventaffected persons as defined in s. 163.3184 from appealing or participating inthis expedited plan amendment process and any review or appeals ofdecisions made under this paragraph; and

(f) Additional incentives for an applicant who proposes a project thatprovides a net ecosystem benefit.

(12) The applicant, the regional permit action team, and participatinglocal governments may agree to incorporate into a single document thepermits, licenses, and approvals that are obtained through the expeditedpermit process. This consolidated permit is subject to the summary hearingprovisions set forth in subsection (14).

(13) Notwithstanding any other provisions of law:

(a) Local comprehensive plan amendments for projects qualified underthis section are exempt from the twice-a-year limits provision in s. 163.3187;and

(b) Projects qualified under this section are not subject to interstatehighway level-of-service standards adopted by the Department of Transpor-tation for concurrency purposes. The memorandum of agreement specified insubsection (5) must include a process by which the applicant will be assesseda fair share of the cost of mitigating the project’s significant traffic impacts,as defined in chapter 380 and related rules. The agreement must also specifywhether the significant traffic impacts on the interstate system will bemitigated through the implementation of a project or payment of funds to theDepartment of Transportation. Where funds are paid, the Department ofTransportation must include in the 5-year work program transportationprojects or project phases, in an amount equal to the funds received, tomitigate the traffic impacts associated with the proposed project.

(14)(a) Challenges to state agency action in the expedited permittingprocess for projects processed under this section are subject to the summaryhearing provisions of s. 120.574, except that the administrative law judge’sdecision, as provided in s. 120.574(2)(f), shall be in the form of arecommended order and shall not constitute the final action of the stateagency. In those proceedings where the action of only one agency of the stateother than the Department of Environmental Protection is challenged, theagency of the state shall issue the final order within 45 10 working days afterof receipt of the administrative law judge’s recommended order, and therecommended order shall inform the parties of their right to file exceptions orresponses to the recommended order in accordance with the uniform rules ofprocedure pursuant to s. 120.54. In those proceedings where the actions ofmore than one agency of the state are challenged, the Governor shall issuethe final order within 45 10 working days after of receipt of the adminis-trative law judge’s recommended order, and the recommended order shallinform the parties of their right to file exceptions or responses to therecommended order in accordance with the uniform rules of procedure

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pursuant to s. 120.54. This paragraph does not apply to the issuance ofdepartment licenses required under any federally delegated or approvedpermit program. In such instances, the department shall enter the finalorder. The participating agencies of the state may opt at the preliminaryhearing conference to allow the administrative law judge’s decision toconstitute the final agency action. If a participating local government agreesto participate in the summary hearing provisions of s. 120.574 for purposes ofreview of local government comprehensive plan amendments, s. 163.3184(9)and (10) apply.

(b) Projects identified in paragraph (3)(f) or challenges to state agencyaction in the expedited permitting process for establishment of a state-of-the-art biomedical research institution and campus in this state by the granteeunder s. 288.955 are subject to the same requirements as challenges broughtunder paragraph (a), except that, notwithstanding s. 120.574, summaryproceedings must be conducted within 30 days after a party files the motionfor summary hearing, regardless of whether the parties agree to thesummary proceeding.

(15) The office, working with the agencies providing cooperative assis-tance and input regarding participating in the memoranda of agreement,shall review sites proposed for the location of facilities eligible for theInnovation Incentive Program under s. 288.1089. Within 20 days after therequest for the review by the office, the agencies shall provide to the office astatement as to each site’s necessary permits under local, state, and federallaw and an identification of significant permitting issues, which if un-resolved, may result in the denial of an agency permit or approval or anysignificant delay caused by the permitting process.

(16) This expedited permitting process shall not modify, qualify, orotherwise alter existing agency nonprocedural standards for permit applica-tions or local comprehensive plan amendments, unless expressly authorizedby law. If it is determined that the applicant is not eligible to use this process,the applicant may apply for permitting of the project through the normalpermitting processes.

(17) The office shall be responsible for certifying a business as eligible forundergoing expedited review under this section. Enterprise Florida, Inc., acounty or municipal government, or the Rural Economic DevelopmentInitiative may recommend to the Office of Tourism, Trade, and EconomicDevelopment that a project meeting the minimum job creation thresholdundergo expedited review.

(18) The office, working with the Rural Economic Development Initiativeand the agencies participating in the memoranda of agreement, shall providetechnical assistance in preparing permit applications and local comprehen-sive plan amendments for counties having a population of fewer less than75,000 residents, or counties having fewer than 125,000 100,000 residentswhich are contiguous to counties having fewer than 75,000 residents.Additional assistance may include, but not be limited to, guidance in land

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development regulations and permitting processes, working cooperativelywith state, regional, and local entities to identify areas within these countieswhich may be suitable or adaptable for preclearance review of specified typesof land uses and other activities requiring permits.

(19) The following projects are ineligible for review under this part:

(a) A project funded and operated by a local government, as defined in s.377.709, and located within that government’s jurisdiction.

(b) A project, the primary purpose of which is to:

1. Effect the final disposal of solid waste, biomedical waste, or hazardouswaste in this state.

2. Produce electrical power, unless the production of electricity isincidental and not the primary function of the project or the electricalpower is derived from a fuel source for renewable energy as defined in s.366.91(2)(d).

3. Extract natural resources.

4. Produce oil.

5. Construct, maintain, or operate an oil, petroleum, natural gas, orsewage pipeline.

Section 63. This act shall take effect July 1, 2010.

Approved by the Governor June 4, 2010.

Filed in Office Secretary of State June 4, 2010.

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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

House Memorial 1

A memorial to the Congress of the United States, urging 2

Congress to require the United States Environmental 3

Protection Agency to subject the proposed numeric nutrient 4

criteria for Florida to review by the agency's Science 5

Advisory Board and the Government Accountability Office or 6

the Congressional Budget Office. 7

8

WHEREAS, nutrients are essential for the biological health 9

and productivity of Florida waters, and 10

WHEREAS, a delicate relationship exists between the level 11

of nutrients in a water body and its health and productivity, 12

and 13

WHEREAS, increasing the level of nutrients in combination 14

with site-specific conditions can cause impairment to a water 15

body, and 16

WHEREAS, the establishment of numeric nutrient criteria in 17

a manner that fails to take into account site-specific factors 18

may result in criteria that lack adequate scientific support and 19

cause unintended environmental and economic consequences, and 20

WHEREAS, the United States Environmental Protection Agency 21

determined that the State of Florida's standards on acceptable 22

phosphorus and nitrogen levels in its waters need federal 23

intervention, even though Florida has one of the most advanced 24

water quality standards programs in the nation, and 25

WHEREAS, the Environmental Protection Agency proposed 26

numeric nutrient criteria for the state's streams, canals, and 27

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lakes in January 2010 and intends to propose criteria for the 28

state's coastal waters and estuaries in January 2011, and 29

WHEREAS, the Environmental Protection Agency's schedule for 30

proposing and adopting statewide numeric nutrient criteria has 31

forced the agency to use a methodology that fails to fully take 32

into account the unique characteristics of Florida's many 33

thousands of rivers, streams, canals, and lakes, and 34

WHEREAS, for nearly 10 years, the Florida Legislature has 35

allocated millions of dollars to the state's Total Maximum Daily 36

Loads Program to scientifically evaluate the quality of 37

Florida's surface waters and promote the environmentally 38

beneficial projects necessary to clean up pollution, and 39

WHEREAS, the proposed numeric nutrient criteria ignore the 40

good work of, and may undermine, the state's science-based Total 41

Maximum Daily Loads Program, and 42

WHEREAS, the proposed numeric nutrient criteria will cause 43

severe negative repercussions with respect to alternative water 44

supply programs, including the beneficial reuse of reclaimed 45

water, and 46

WHEREAS, a study commissioned by the Florida Water 47

Environment Association Utility Council estimates that 48

wastewater utilities in the state will spend between $24 billion 49

and $51 billion in capital costs for additional wastewater 50

treatment facilities and incur increases in annual operating 51

costs between $4 million and $1 billion to comply with the 52

proposed numeric nutrient criteria, and 53

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WHEREAS, such costs do not consider the economic 54

implications to industrial and stormwater facilities and to 55

agriculture which are likely comparable and additive, and 56

WHEREAS, the members of the Florida Legislature value the 57

health of our waterways but also recognize that the proposed 58

regulatory changes without adequate and flexible implementation 59

mechanisms will have severe economic consequences on the state's 60

agriculture, local governments, economically vital industries, 61

small businesses, and residents living below the poverty level 62

or on fixed incomes, and 63

WHEREAS, believing that regulatory changes should be based 64

on reliable, sound scientific data and analysis, the Florida 65

Legislature is concerned that the Environmental Protection 66

Agency's failure to account for the full range of natural 67

conditions in Florida in developing numeric nutrient criteria 68

does not adequately address the unique characteristics of the 69

state's many thousands of rivers, streams, canals, and lakes, 70

NOW, THEREFORE, 71

72

Be It Resolved by the Legislature of the State of Florida: 73

74

That the Congress of the United States is urged to: 75

(1) Require the United States Environmental Protection 76

Agency to subject the proposed numeric nutrient criteria for 77

Florida to peer review by the agency's Science Advisory Board 78

and receive the board's peer review report prior to finalization 79

of the proposed rule to ensure that the numeric nutrient 80

criteria developed for the state are necessary to protect 81

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applicable designated uses, based on sound scientific rationale, 82

reflective of the range of natural variability associated with 83

the state's waters, responsive to input from Florida's water 84

quality experts, responsive to available public and stakeholder 85

input, and sufficient to be integrated with the water quality 86

management tools available to the state; and 87

(2) Require the United States Environmental Protection 88

Agency to subject the proposed numeric nutrient criteria for 89

Florida to review by the Government Accountability Office or the 90

Congressional Budget Office to assess the economic impact of the 91

proposed rule on Florida and adjoining states, particularly 92

including impacts to Florida's local governments, small 93

businesses, and residents living below the poverty level or on 94

fixed incomes, and further require that such review compare the 95

proposed rule to current law in Florida and not assume that 96

there will only be indirect impacts and that widespread 97

variances to the rule will be granted, as the agency assumed in 98

its own economic analysis. 99

BE IT FURTHER RESOLVED that copies of this memorial be 100

dispatched to the President of the United States, to the 101

President of the United States Senate, to the Speaker of the 102

United States House of Representatives, and to each member of 103

the Florida delegation to the United States Congress. 104

Qrongress of tf1e 11tniteil ~tates mU5qington, IDQ! 20515

August 2, 20 I0

The Honorable Lisa Jackson Administrator United States Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

Dear Administrator Jackson,

As you know, the Environmental Protection Agency (EPA) has issued a proposed rule establishing federal numeric nutrient criteria for Florida water bodies. In accordance with a consent decree EPA entered into with several litigants, EPA committed to issue a final rule for Florida lakes and streams by October 2010 and for Florida canals, coastal waters, and estuaries by August 2012.

EPA's numeric nutrient criteria rulemaking will impact all Florida citizens, local governments, and vital sectors of Florida's economy, including agriculture. It is thus imperative that EPA ensure that its federal criteria are based on sound scientific rationale; necessary to protect the applicable designated uses of Florida waters; and reflective of the range of natural variability associated with state waters.

To that end, we applaud EPA's decision to delay finalization of criteria for Florida's canals, coastal waters, and estuaries to August 2012 to allow EPA's Science Advisory Board (SAB) to conduct a peer review of EPA's data and methodologies for deriving criteria for these waters. It is our expectation that the SAB's peer review will consider the appropriateness of the numerical limits proposed for canals, estuaries, and coastal waters and analyze whether the proposed criteria are sufficiently based on or correlated with cause and effect relationships between nutrients and biological responses in these Florida waters. Also, because a peer review process is only meaningful if the agency is prepared to be responsive to the comments of independent experts, we expect that EPA will modify its rulemaking in accordance with the SAB's analysis and recommendations.

In addition to reviewing the proposed criteria for Florida's canals, estuaries, and coastal waters, we strongly urge that EPA extend the scope of its SAB peer review to include examination of the proposed numeric nutrient criteria and underlying derivation methodologies for Florida's rivers, streams, and lakes. We believe that the SAB peer review process is important, and it should apply to all of the criteria to be imposed in Florida, not just criteria for canals, coastal waters, and estuaries. We strongly urge that EPA delay requirements to implement its proposed streams and lakes criteria until the peer review concludes, and EPA should adjust its rulemaking in accordance with the peer review analysis and recommendations.

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Lastly, we strongly urge that EPA provide for an independent analysis to assess the economic impact of the proposed rule on Florida and adjoining states. The assessments should consider economic information submitted by Florida governmental entities and the public in EPA's rulemaking process; compare the proposed rule to current law in Florida; and account for the potential need to retrofit pollutant reduction measures taken in response to TMDLs and estuary programs for nutrients in Florida.

Again, EPA's unprecedented nutrient criteria rulemaking appears poised to impose substantial regulatory and economic consequences on Floridians. We ask that prior to deciding whether to implement numeric nutrient criteria, you ensure that all aspects of EPA's rulemaking are based on a sound scientific rationale and that the costs and potential unintended consequences associated with the rule are well understood.

Sincerely,

~~ADAMH U AM TOM ROONEY Member of Congress Member of Congress I United States Senator

c~~ CORRINE BROWN

Member of Congress Member of Congress ~PI

t1l~ -~ANDER CRENSHAW YB~~ Member of Congress Member of Congress

C.W. BILL yj G Member of ongress

VERNBU ANAN LOSEY Mem r of Congress Member of Congress

RO KLEINILEANA ROS-LEHTINEN Member of Congress Member of Congress

~~ifj1J--Member of Congress