Comment submitted by Kirk L. Burns, Office of Counsel, South Florida Water Management Dirstrict

On July 1, 2011, the U.S. Environmental Protection Agency (“EPA”) published a proposed rule in the Federal Register that would strike certain provisions of Florida's Everglades Forever Act (“EFA”) and the Phosphorus Rule (“The Phosphorus Rule”). On behalf of the South Florida Water Management District (“District”), we respectfully request that you decline to delete subparagraph (5)(b)2 of the Phosphorus Rule relating to “cause and contribute” determinations and phosphorus reflux. During the original, State of Florida hearings on the Phosphorus Rule, there was con¬sider-able testimony documenting the process by which legacy phosphorus may be released back into the water column. Recent studies have further confirmed this process, reflecting that in impacted areas of the Everglades, (where soils contain phosphorus levels greater than 500 mg/kg), reflux will cause water column phosphorus levels to remain elevated even after significant reductions in phosphorus concentrations in discharges entering the Everglades. See, Walker, W., Modeling Phosphorus Dynamics in Everglades Wetlands and Stormwater Treatment Areas, (2010); Enhancing Sediment Phosphorus Storage in Impacted Regions of the Everglades Protection Area, (July 10, 2009). Subparagraph (5)(b)2 serves to acknowl¬edge this physical process and ensure that dischargers, such as the District, will not be unjustly held in violation of permit discharge limits in cases where legacy phosphorus (stemming from historical—and lawful—untreated discharges) contribute to the exceedance of the criterion. We understand that EPA is proposing to delete subparagraph (5)(b)2 as a result of the April 14, 2010, order entered in Miccosukee Tribe of Indians v. United States of America, et al, Case No. 04-21448-CIV-Gold (S.D. Fla.). That order, and the Court’s earlier order dated July 29, 2008, sought to invalidate the 2003 amendments to the Everglades Forever Act relating to “moderating provisions” and similar language in the Phos