Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 1086
       
       
       
       
       
       
                                Barcode 112952                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/06/2012           .                                
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       The Committee on Environmental Preservation and Conservation
       (Latvala) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (17) through (26) of section
    6  373.019, Florida Statutes, are renumbered as subsections (19)
    7  through (28), respectively, and new subsections (17) and (18)
    8  are added to that section to read:
    9         373.019 Definitions.—When appearing in this chapter or in
   10  any rule, regulation, or order adopted pursuant thereto, the
   11  term:
   12         (17) “Reclaimed water” means water that has received at
   13  least secondary treatment and basic disinfection and is reused
   14  after flowing out of a domestic wastewater treatment facility.
   15  Reclaimed water is not subject to regulation pursuant to s.
   16  373.175 or part II of this chapter until it has been discharged
   17  into waters as defined in s. 403.031(13).
   18         (18) “Reclaimed water distribution system” means a network
   19  of pipes, pumping facilities, storage facilities, and
   20  appurtenances designed to convey and distribute reclaimed water
   21  from one or more domestic wastewater treatment facilities to one
   22  or more users of reclaimed water.
   23         Section 2. Section 373.250, Florida Statutes, is amended to
   24  read:
   25         373.250 Reuse of reclaimed water.—
   26         (1)(a) The encouragement and promotion of water
   27  conservation and reuse of reclaimed water, as defined by the
   28  department and used in this chapter, are state objectives and
   29  considered to be in the public interest. The Legislature finds
   30  that the use of reclaimed water provided by domestic wastewater
   31  treatment plants permitted and operated under a reuse program
   32  approved by the department is environmentally acceptable and not
   33  a threat to public health and safety.
   34         (b) The Legislature recognizes that the interest of the
   35  state to sustain water resources for the future through the use
   36  of reclaimed water must be balanced with the need of reuse
   37  utilities to operate and manage reclaimed water systems in
   38  accordance with a variety and range of circumstances, including
   39  regulatory and financial considerations, which influence the
   40  development and operation of reclaimed water systems across the
   41  state.
   42         (2) Reclaimed water is an alternative water supply as
   43  defined in s. 373.019(1) and is eligible for alternative water
   44  supply funding. A contract for state or district funding
   45  assistance for the development of reclaimed water as an
   46  alternative water supply may include provisions listed under s.
   47  373.707(9). The use of reclaimed water may not be excluded from
   48  regional water supply planning under s. 373.709.
   49         (3)(2)(a) For purposes of this section, “uncommitted” means
   50  the average amount of reclaimed water produced during the three
   51  lowest-flow months minus the amount of reclaimed water that a
   52  reclaimed water provider is contractually obligated to provide
   53  to a customer or user.
   54         (b) Reclaimed water may be presumed available to a
   55  consumptive use permit applicant when a utility exists which
   56  provides reclaimed water, which has determined that it has
   57  uncommitted reclaimed water capacity, and which has distribution
   58  facilities, which are initially provided by the utility at its
   59  cost, to the site of the affected applicant’s proposed use.
   60         (b) A water management district may not require a permit
   61  for the use of reclaimed water. However, when a use includes
   62  surface water or groundwater, the permit for such sources may
   63  include conditions that govern the use of the permitted sources
   64  in relation to the feasibility or use of reclaimed water.
   65         (c) A water management district may require the use of
   66  reclaimed water in lieu of all or a portion of a proposed use of
   67  surface water or groundwater by an applicant when the use of
   68  uncommitted reclaimed water is available; is environmentally,
   69  economically, and technically feasible; and is of such quality
   70  and reliability as is necessary to the user. However, a water
   71  management district may neither specify any user to whom the
   72  reuse utility must provide reclaimed water nor restrict the use
   73  of reclaimed water provided by a reuse utility to a customer in
   74  a permit or, unless requested by the reuse utility, in a water
   75  shortage order or water shortage emergency order this paragraph
   76  does not authorize a water management district to require a
   77  provider of reclaimed water to redirect reclaimed water from one
   78  user to another or to provide uncommitted water to a specific
   79  user if such water is anticipated to be used by the provider, or
   80  a different user selected by the provider, within a reasonable
   81  amount of time.
   82         (d) The South Florida Water Management District shall
   83  require the use of reclaimed water made available by the
   84  elimination of wastewater ocean outfall discharges as provided
   85  for in s. 403.086(9) in lieu of surface water or groundwater
   86  when the use of uncommitted reclaimed water is available; is
   87  environmentally, economically, and technically feasible; and is
   88  of such quality and reliability as is necessary to the user.
   89  Such reclaimed water may also be required in lieu of other
   90  alternative sources. In determining whether or not to require
   91  such reclaimed water in lieu of other alternative sources, the
   92  water management district shall consider existing infrastructure
   93  investments in place or obligated to be constructed by an
   94  executed contract or similar binding agreement as of July 1,
   95  2011, for the development of other alternative sources.
   96         (4)(3) The water management district shall, in consultation
   97  with the department, adopt rules to implement this section. Such
   98  rules shall include, but not be limited to:
   99         (a) Provisions to permit use of water from other sources in
  100  emergency situations or if reclaimed water becomes unavailable,
  101  for the duration of the emergency or the unavailability of
  102  reclaimed water. These provisions shall also specify the method
  103  for establishing the quantity of water to be set aside for use
  104  in emergencies or when reclaimed water becomes unavailable. The
  105  amount set aside is subject to periodic review and revision. The
  106  methodology shall take into account the risk that reclaimed
  107  water may not be available in the future, the risk that other
  108  sources may be fully allocated to other uses in the future, the
  109  nature of the uses served with reclaimed water, the extent to
  110  which the applicant intends to rely upon reclaimed water, and
  111  the extent of economic harm which may result if other sources
  112  are not available to replace the reclaimed water. It is the
  113  intent of this paragraph to ensure that users of reclaimed water
  114  have the same access to ground or surface water and will
  115  otherwise be treated in the same manner as other users of the
  116  same class not relying on reclaimed water.
  117         (b) A water management district shall not adopt any rule
  118  which gives preference to users within any class of use
  119  established under s. 373.246 who do not use reclaimed water over
  120  users within the same class who use reclaimed water.
  121         (b)(c) Provisions to require permit applicants that are not
  122  reuse utilities to provide, as part of their reclaimed water
  123  feasibility evaluation for a nonpotable use, written
  124  documentation from a reuse utility addressing the availability
  125  of reclaimed water. This requirement shall apply when the
  126  applicant’s proposed use is within an area that is or may be
  127  served with reclaimed water by a reuse utility within a 5-year
  128  horizon, as established by the reuse utility and provided to the
  129  district. If the applicable reuse utility fails to respond or
  130  does not provide the information required under paragraph (c)
  131  (d) within 30 days after receipt of the request, the applicant
  132  shall provide to the district a copy of the written request and
  133  a statement that the utility failed to provide the requested
  134  information. The district is not required to adopt, by rule, the
  135  area where written documentation from a reuse utility is
  136  required, but the district shall publish the area, and any
  137  updates thereto, on the district’s website. This paragraph may
  138  not be construed to limit the ability of a district to require
  139  the use of reclaimed water or to limit a utility’s ability to
  140  plan reclaimed water infrastructure.
  141         (c)(d) Provisions specifying the content of the
  142  documentation required in paragraph (b) (c), including
  143  sufficient information regarding the availability and costs
  144  associated with the connection to and the use of reclaimed
  145  water, to facilitate the permit applicant’s reclaimed water
  146  feasibility evaluation.
  147         A water management district may not adopt any rule that
  148  gives preference to users within any class of use established
  149  under s. 373.246 who do not use reclaimed water over users
  150  within the same class who use reclaimed water.
  151         (5)(a) No later than October 1, 2012, the department shall
  152  initiate rulemaking to adopt revisions to the water resource
  153  implementation rule, as defined in s. 373.019(23), which shall
  154  include:
  155         1. Criteria for the use of a proposed impact offset derived
  156  from the use of reclaimed water when a water management district
  157  evaluates an application for a consumptive use permit. As used
  158  in this subparagraph, the term “impact offset” means the use of
  159  reclaimed water to reduce or eliminate a harmful impact that has
  160  occurred or would otherwise occur as a result of other surface
  161  water or groundwater withdrawals.
  162         2. Criteria for the use of substitution credits where a
  163  water management district has adopted rules establishing
  164  withdrawal limits from a specified water resource within a
  165  defined geographic area. As used in this subparagraph, the term
  166  “substitution credit” means the use of reclaimed water to
  167  replace all or a portion of an existing permitted use of
  168  resource-limited surface water or groundwater, allowing a
  169  different user or use to initiate a withdrawal or increase its
  170  withdrawal from the same resource-limited surface water or
  171  groundwater source provided that the withdrawal creates no net
  172  adverse impact on the limited water resource or creates a net
  173  positive impact if required by water management district rule as
  174  part of a strategy to protect or recover a water resource.
  175         (b) Within 60 days after the final adoption by the
  176  department of the revisions to the water resource implementation
  177  rule required under paragraph (a), each water management
  178  district shall initiate rulemaking to incorporate those
  179  revisions by reference into the rules of the district.
  180         (6)(4) Reuse utilities and the applicable water management
  181  district or districts are encouraged to periodically coordinate
  182  and share information concerning the status of reclaimed water
  183  distribution system construction, the availability of reclaimed
  184  water supplies, and existing consumptive use permits in areas
  185  served by the reuse utility.
  186         (7)(5)Nothing in This section does not impair or limit the
  187  authority of shall impair a water management district district’s
  188  authority to plan for and regulate consumptive uses of water
  189  under this chapter or regulate the use of surface water or
  190  groundwater to supplement a reclaimed water system.
  191         (8)(6) This section applies to applications for new
  192  consumptive use permits and renewals and modifications of
  193  existing consumptive use permits.
  194         Section 3. This act does not:
  195         (1) Impair or limit the authority of the Department of
  196  Environmental Protection to regulate water quality, including
  197  reclaimed water, pursuant to chapter 403, Florida Statutes, or
  198  to require a reuse feasibility study pursuant to s. 403.064,
  199  Florida Statutes.
  200         (2) Impair or limit the authority of a water management
  201  district to conduct regional water supply planning pursuant to
  202  chapter 373, Florida Statutes.
  203         (3) Affect any requirement that may be applicable to
  204  funding of alternative water supply development, including
  205  reclaimed water, pursuant to s. 373.707, Florida Statutes.
  206         (4) Affect or limit any applicable provisions regarding the
  207  setting of rates by public and private water utilities pursuant
  208  to chapter 153, Florida Statutes, chapter 180, Florida Statutes,
  209  or s. 367.081, Florida Statutes.
  210            (5) Affect or impair the powers of the Governor under
  211  the constitution, statutory laws, including but not limited to
  212  chapter 14, Florida Statutes and police powers to promulgate and
  213  enforce emergency rules, regulations, and orders.
  214         Section 4. Paragraph (d) of subsection (1) of section
  215  373.036, Florida Statutes, is amended to read:
  216         373.036 Florida water plan; district water management
  217  plans.—
  218         (1) FLORIDA WATER PLAN.—In cooperation with the water
  219  management districts, regional water supply authorities, and
  220  others, the department shall develop the Florida water plan. The
  221  Florida water plan shall include, but not be limited to:
  222         (d) Goals, objectives, and guidance for the development and
  223  review of programs, rules, and plans relating to water
  224  resources, based on statutory policies and directives. The state
  225  water policy rule, renamed the water resource implementation
  226  rule pursuant to s. 373.019(25)(23), shall serve as this part of
  227  the plan. Amendments or additions to this part of the Florida
  228  water plan shall be adopted by the department as part of the
  229  water resource implementation rule. In accordance with s.
  230  373.114, the department shall review rules of the water
  231  management districts for consistency with this rule. Amendments
  232  to the water resource implementation rule must be adopted by the
  233  secretary of the department and be submitted to the President of
  234  the Senate and the Speaker of the House of Representatives
  235  within 7 days after publication in the Florida Administrative
  236  Weekly. Amendments shall not become effective until the
  237  conclusion of the next regular session of the Legislature
  238  following their adoption.
  239         Section 5. Subsection (1) of section 373.421, Florida
  240  Statutes, is amended to read:
  241         373.421 Delineation methods; formal determinations.—
  242         (1) The Environmental Regulation Commission shall adopt a
  243  unified statewide methodology for the delineation of the extent
  244  of wetlands as defined in s. 373.019(25). This methodology shall
  245  consider regional differences in the types of soils and
  246  vegetation that may serve as indicators of the extent of
  247  wetlands. This methodology shall also include provisions for
  248  determining the extent of surface waters other than wetlands for
  249  the purposes of regulation under s. 373.414. This methodology
  250  shall not become effective until ratified by the Legislature.
  251  Subsequent to legislative ratification, the wetland definition
  252  in s. 373.019(27)(25) and the adopted wetland methodology shall
  253  be binding on the department, the water management districts,
  254  local governments, and any other governmental entities. Upon
  255  ratification of such wetland methodology, the Legislature
  256  preempts the authority of any water management district, state
  257  or regional agency, or local government to define wetlands or
  258  develop a delineation methodology to implement the definition
  259  and determines that the exclusive definition and delineation
  260  methodology for wetlands shall be that established pursuant to
  261  s. 373.019(27)(25) and this section. Upon such legislative
  262  ratification, any existing wetlands definition or wetland
  263  delineation methodology shall be superseded by the wetland
  264  definition and delineation methodology established pursuant to
  265  this chapter. Subsequent to legislative ratification, a
  266  delineation of the extent of a surface water or wetland by the
  267  department or a water management district, pursuant to a formal
  268  determination under subsection (2), or pursuant to a permit
  269  issued under this part in which the delineation was field
  270  verified by the permitting agency and specifically approved in
  271  the permit, shall be binding on all other governmental entities
  272  for the duration of the formal determination or permit. All
  273  existing rules and methodologies of the department, the water
  274  management districts, and local governments, regarding surface
  275  water or wetland definition and delineation shall remain in full
  276  force and effect until the common methodology rule becomes
  277  effective. However, this shall not be construed to limit any
  278  power of the department, the water management districts, and
  279  local governments to amend or adopt a surface water or wetland
  280  definition or delineation methodology until the common
  281  methodology rule becomes effective.
  282         Section 6. Paragraph (r) of subsection (1) of section
  283  403.813, Florida Statutes, is amended to read:
  284         403.813 Permits issued at district centers; exceptions.—
  285         (1) A permit is not required under this chapter, chapter
  286  373, chapter 61-691, Laws of Florida, or chapter 25214 or
  287  chapter 25270, 1949, Laws of Florida, for activities associated
  288  with the following types of projects; however, except as
  289  otherwise provided in this subsection, nothing in this
  290  subsection relieves an applicant from any requirement to obtain
  291  permission to use or occupy lands owned by the Board of Trustees
  292  of the Internal Improvement Trust Fund or any water management
  293  district in its governmental or proprietary capacity or from
  294  complying with applicable local pollution control programs
  295  authorized under this chapter or other requirements of county
  296  and municipal governments:
  297         (r) The removal of aquatic plants, the removal of tussocks,
  298  the associated replanting of indigenous aquatic plants, and the
  299  associated removal from lakes of organic detrital material when
  300  such planting or removal is performed and authorized by permit
  301  or exemption granted under s. 369.20 or s. 369.25, provided
  302  that:
  303         1. Organic detrital material that exists on the surface of
  304  natural mineral substrate shall be allowed to be removed to a
  305  depth of 3 feet or to the natural mineral substrate, whichever
  306  is less;
  307         2. All material removed pursuant to this paragraph shall be
  308  deposited in an upland site in a manner that will prevent the
  309  reintroduction of the material into waters in the state except
  310  when spoil material is permitted to be used to create wildlife
  311  islands in freshwater bodies of the state when a governmental
  312  entity is permitted pursuant to s. 369.20 to create such islands
  313  as a part of a restoration or enhancement project;
  314         3. All activities are performed in a manner consistent with
  315  state water quality standards; and
  316         4. No activities under this exemption are conducted in
  317  wetland areas, as defined by s. 373.019(27)(25), which are
  318  supported by a natural soil as shown in applicable United States
  319  Department of Agriculture county soil surveys, except when a
  320  governmental entity is permitted pursuant to s. 369.20 to
  321  conduct such activities as a part of a restoration or
  322  enhancement project.
  323  
  324         The department may not adopt implementing rules for this
  325  paragraph, notwithstanding any other provision of law.
  326         Section 7. Subsection (6) of section 556.102, Florida
  327  Statutes, is amended to read:
  328         556.102 Definitions.—As used in this act:
  329         (6) “Excavate” or “excavation” means any manmade cut,
  330  cavity, trench, or depression in the earth’s surface, formed by
  331  removal of earth, intended to change the grade or level of land,
  332  or intended to penetrate or disturb the surface of the earth,
  333  including land beneath the waters of the state, as defined in s.
  334  373.019(22)(20), and the term includes pipe bursting and
  335  directional drilling or boring from one point to another point
  336  beneath the surface of the earth, or other trenchless
  337  technologies.
  338         Section 8. This act shall take effect July 1, 2012.
  339  
  340  
  341  ================= T I T L E  A M E N D M E N T ================
  342         And the title is amended as follows:
  343         Delete everything before the enacting clause
  344  and insert:
  345                        A bill to be entitled                      
  346         An act relating to reclaimed water; amending s. 373.019,
  347  F.S.; defining the terms “reclaimed water” and “reclaimed water
  348  distribution system”; amending s. 373.250, F.S.; providing
  349  legislative findings relating to the use of reclaimed water;
  350  providing that reclaimed water is an alternative water supply
  351  and eligible for such funding; authorizing specified contract
  352  provisions for the development of reclaimed water as an
  353  alternative water supply; prohibiting the exclusion of reclaimed
  354  water for consideration in regional water supply planning;
  355  deleting a definition for the term “uncommitted”; providing for
  356  the determination of uncommitted reclaimed water capacity by
  357  certain utilities; prohibiting water management districts from
  358  requiring permits for the use of reclaimed water; authorizing
  359  permit conditions for certain surface water and groundwater
  360  sources; authorizing water management districts to require the
  361  use of reclaimed water under certain conditions; prohibiting
  362  water management districts from requiring or restricting
  363  services provided by reuse utilities; providing an exception;
  364  clarifying which permit applicants are required to submit
  365  certain information; requiring the Department of Environmental
  366  Protection and each water management district to initiate
  367  rulemaking to adopt specified revisions to the water resource
  368  implementation rule; revising applicability; providing for
  369  construction of the act; amending ss. 373.036, 373.421, 403.813,
  370  and 556.102, F.S.; conforming cross-references to changes made
  371  by the act; providing an effective date.
  372