Senate Bill 1250e2

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    CS for SB 1250                                Second Engrossed



  1                      A bill to be entitled

  2         An act relating to environmental protection;

  3         amending s. 20.255, F.S.; deleting the Office

  4         of the Youth Corps; renaming the Division of

  5         Water Facilities as the Division of Resource

  6         Management; deleting the Division of

  7         Environmental Resource Permitting;

  8         reinstituting payment in lieu of taxes;

  9         amending s. 373.4145, F.S.; postponing

10         scheduled July 1, 1999 repeal of certain

11         provisions of the interim wetlands permitting

12         program for the Northwest Florida Water

13         Management District; directing the Northwest

14         Florida Water Management District and the

15         Department of Environmental Protection to adopt

16         a plan to implement an environmental resource

17         permitting program within the jurisdiction of

18         the district by a specified date; requiring

19         reports to the Legislature on the progress of

20         the planning efforts; providing that certain

21         jurisdictional declaratory statements will not

22         expire until January 1, 2002; providing

23         authorization for the Secretary of the

24         Department of Environmental Protection to

25         reorganize the department under certain

26         conditions; amending s. 86, ch. 93-213, Laws of

27         Florida; forgiving the repayment of a loan;

28         amending s. 373.136, F.S.; allowing the

29         prevailing party to recover attorney's fees and

30         costs; amending ss. 252.937, 378.901, 403.021,

31         F.S.; conforming a statutory cross-reference;


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    CS for SB 1250                                Second Engrossed



  1         amending s. 403.031, F.S.; defining the term

  2         "total maximum daily load"; creating s.

  3         403.067, F.S.; providing legislative findings

  4         and intent; requiring the Department of

  5         Environmental Protection to periodically submit

  6         to the United States Environmental Protection

  7         Agency a list of surface waters or segments for

  8         which total maximum daily load assessments will

  9         be conducted; providing that the list cannot be

10         used in the administration or implementation of

11         any regulatory program; providing for public

12         comment on the list; requiring the Department

13         of Environmental Protection to conduct total

14         maximum daily load assessments on water bodies

15         based on the priority ranking and schedule;

16         requiring the Department of Environmental

17         Protection to adopt a methodology for

18         determining those water bodies which are

19         impaired by rule; specifying what the rule

20         shall set forth; providing for the adoption of

21         a subsequent updated list of water bodies for

22         which total maximum daily loads will be

23         calculated under certain circumstances;

24         providing for the removal of surface waters or

25         segments under certain conditions; providing

26         for the process for calculating and allocating

27         total maximum daily loads; providing that the

28         Department of Environmental Protection must

29         submit a report by February 1, 2001, to the

30         Governor, the President of the Senate, and the

31         Speaker of the House of Representatives which


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    CS for SB 1250                                Second Engrossed



  1         contains recommendations and draft legislation

  2         for any modifications to the process for

  3         allocating total maximum daily loads; requiring

  4         that the recommendations be developed by the

  5         department in cooperation with a technical

  6         committee; providing that the total maximum

  7         daily load calculations and allocations shall

  8         be adopted by rule; providing for public

  9         workshops and public notice; providing that the

10         Department of Environmental Protection shall be

11         the lead agency in coordinating the

12         implementation of the total maximum daily load

13         allocation through water quality protection

14         programs; authorizing the department to develop

15         a basin plan requiring the department to

16         cooperatively develop suitable interim

17         measures, best management practices, or other

18         measures necessary to achieve the level of

19         pollution reduction established in allocations

20         for nonagricultural nonpoint pollutant sources;

21         requiring the Department of Agriculture and

22         Consumer Services to develop, and to adopt by

23         rule at its discretion, certain interim

24         measures or best management practices necessary

25         to achieve the level of pollution reduction

26         established in allocations of agricultural

27         pollutant sources; authorizing the Department

28         of Environmental Protection to adopt certain

29         rules; prohibiting the Department of

30         Environmental Protection from implementing,

31         without prior legislative approval, any


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    CS for SB 1250                                Second Engrossed



  1         additional regulatory authority pursuant to the

  2         Clean Water Act; amending s. 403.805, F.S.;

  3         providing for the powers and duties of the

  4         secretary; requiring the Department of

  5         Environmental Protection, in coordination with

  6         the water management district and the

  7         Department of Agriculture and Consumer

  8         Services, to evaluate the effectiveness of the

  9         implementation of total maximum daily loads for

10         a specific period and to report to the Governor

11         and the Legislature; providing an effective

12         date.

13

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

15

16         Section 1.  Subsections (2) and (6), of section 20.255,

17  Florida Statutes, 1998 Supplement, are amended to read:

18         20.255  Department of Environmental Protection.--There

19  is created a Department of Environmental Protection.

20         (2)  There shall be two deputy secretaries and an

21  executive coordinator for ecosystem management who are to be

22  appointed by and shall serve at the pleasure of the secretary.

23  The secretary may assign either deputy secretary the

24  responsibility to supervise, coordinate, and formulate policy

25  for any division, office, or district. The following special

26  offices are established and headed by managers, each of whom

27  is to be appointed by and serve at the pleasure of the

28  secretary: Office of General Counsel, Office of Inspector

29  General, Office of Communication, the latter including public

30  information, legislative liaison, cabinet liaison and special

31  projects, Office of Water Policy, Office of Intergovernmental


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    CS for SB 1250                                Second Engrossed



  1  Programs, Office of Ecosystem Planning and Coordination,

  2  Office of Environmental Education, and Office of Greenways and

  3  Trails, and an Office of the Youth Corps. The executive

  4  coordinator for ecosystem management shall coordinate policy

  5  within the department to assure the implementation of the

  6  ecosystem management provisions of chapter 93-213, Laws of

  7  Florida. The executive coordinator for ecosystem management

  8  shall supervise only the Office of Water Policy, the Office of

  9  Intergovernmental Programs, the Office of Ecosystem Planning

10  and Coordination, and the Office of Environmental Education.

11  The executive coordinator for ecosystem management may also be

12  delegated authority by the secretary to act on behalf of the

13  secretary; this authority may include the responsibility to

14  oversee the inland navigation districts. The other special

15  offices not supervised by the executive coordinator for

16  ecosystem management shall report to the secretary; however,

17  the secretary may assign them, for daily coordination

18  purposes, to report through a senior manager other than the

19  secretary. There shall be six administrative districts

20  involved in regulatory matters of waste management, water

21  facilities, wetlands, and air resources, which shall be headed

22  by managers, each of whom is to be appointed by and serve at

23  the pleasure of the secretary. Divisions of the department may

24  have one assistant or two deputy division directors, as

25  required to facilitate effective operation. The managers of

26  all divisions and offices specifically named in this section

27  and the directors of the six administrative districts are

28  exempt from part II of chapter 110 and are included in the

29  Senior Management Service in accordance with s. 110.205(2)(i).

30  No other deputy secretaries or senior management positions at

31  or above the division level, except those established in


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    CS for SB 1250                                Second Engrossed



  1  chapter 110, may be created without specific legislative

  2  authority.

  3         (6)  The following divisions of the Department of

  4  Environmental Protection are established:

  5         (a)  Division of Administrative and Technical Services.

  6         (b)  Division of Air Resource Management.

  7         (c)  Division of Water Resource Management Facilities.

  8         (d)  Division of Law Enforcement.

  9         (e)  Division of Marine Resources.

10         (f)  Division of Waste Management.

11         (g)  Division of Recreation and Parks.

12         (h)  Division of State Lands, the director of which is

13  to be appointed by the secretary of the department, subject to

14  confirmation by the Governor and Cabinet sitting as the Board

15  of Trustees of the Internal Improvement Trust Fund.

16         (i)  Division of Environmental Resource Permitting.

17

18  In order to ensure statewide and intradepartmental

19  consistency, the department's divisions shall direct the

20  district offices and bureaus on matters of interpretation and

21  applicability of the department's rules and programs.

22         Section 2.  If the Department of Environmental

23  Protection or a water management district has made a payment

24  in lieu of taxes to a governmental entity and subsequently

25  suspended such payment, the department or water management

26  district shall reinstitute appropriate payment and continue

27  the payments in consecutive years until the governmental

28  entity has received a total of ten payments for each tax loss.

29         Section 3.  Subsection (6) of section 373.4145, Florida

30  Statutes, is amended and subsection (7) is added to said

31  section, to read:


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    CS for SB 1250                                Second Engrossed



  1         373.4145  Interim part IV permitting program for the

  2  Northwest Florida Water Management District.--

  3         (6)  Subsections (1), (2), (3), and (4) shall be

  4  repealed effective July 1, 2003 1999.

  5         (7)(a)  The department and the Northwest Florida Water

  6  Management District are directed to begin developing a plan by

  7  which the permitting for activities proposed in surface waters

  8  and wetlands shall fully comply with the provisions of part IV

  9  of chapter 373, beginning July 1, 2003. The plan also shall

10  address the division of environmental resource permitting

11  responsibilities between the department and the Northwest

12  Florida Water Management District; the methodology of

13  delineating wetlands in the Northwest Florida Water Management

14  District; authority of the Northwest Florida Water Management

15  District to implement federal permitting programs related to

16  activities in surface waters and wetlands; and the chapter 70

17  implications of implementing the provisions of part IV of

18  chapter 373 within the jurisdiction of the Northwest Florida

19  Water Management District.

20         (b)  The department and Northwest Florida Water

21  Management District shall jointly prepare an interim report on

22  their progress in developing the aforementioned plan, to be

23  presented March 1, 2001 to the Governor, the President of the

24  Senate, the Speaker of the House of Representatives, and the

25  chairs of the relevant substantive and fiscal committees. The

26  department and district shall present a final report on March

27  1, 2003.

28         (c)  Any jurisdictional declaratory statement issued

29  for a project within the geographic jurisdiction of the

30  Northwest Florida Water Management District that is valid on

31  July 1, 1999, and for which there has been issued a permit


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    CS for SB 1250                                Second Engrossed



  1  pursuant to chapters 403 and 373 for a phase of that project

  2  and which identified proposed future development, including

  3  mitigation, that would require an additional permit pursuant

  4  to chapters 403 and 373 shall not expire until January 1,

  5  2002.

  6         Section 4.  Subsection (2) of section 252.937, Florida

  7  Statutes, 1998 Supplement, is amended to read:

  8         252.937  Department powers and duties.--

  9         (2)  To ensure that this program is self-supporting,

10  the department shall provide administrative support, including

11  staff, facilities, materials, and services to implement this

12  part for specified stationary sources subject to s. 252.939

13  and shall provide necessary funding to local emergency

14  planning committees and county emergency management agencies

15  for work performed to implement this part. Each state agency

16  with regulatory, inspection, or technical assistance programs

17  for specified stationary sources subject to this part shall

18  enter into a memorandum of understanding with the department

19  which specifically outlines how each agency's staff,

20  facilities, materials, and services will be utilized to

21  support implementation. At a minimum, these agencies and

22  programs include:  the Department of Environmental

23  Protection's Division of Air Resources Management and Division

24  of Water Resource Management Facilities, and the Department of

25  Labor and Employment Security's Division of Safety. It is the

26  Legislature's intent to implement this part as efficiently and

27  economically as possible, using existing expertise and

28  resources, if available and appropriate.

29         Section 5.  Paragraph (a) of subsection (1) of section

30  378.901, Florida Statutes, is amended to read:

31         378.901  Life-of-the-mine permit.--


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    CS for SB 1250                                Second Engrossed



  1         (1)  As used in this section, the term:

  2         (a)  "Bureau" means the Bureau of Mine Reclamation of

  3  the Division of Water Resource Management Environmental

  4  Resource Permitting of the Department of Environmental

  5  Protection.

  6         Section 6.  Paragraph (a) of subsection (9) of section

  7  403.021, Florida Statutes, is amended to read:

  8         403.021  Legislative declaration; public policy.--

  9         (9)

10         (a)  The Legislature finds and declares that it is

11  essential to preserve and maintain authorized water depth in

12  the existing navigation channels, port harbors, turning

13  basins, and harbor berths of this state in order to provide

14  for the continued safe navigation of deepwater shipping

15  commerce.  The department shall recognize that maintenance of

16  authorized water depths consistent with port master plans

17  developed pursuant to s. 163.3178(2)(k) is an ongoing,

18  continuous, beneficial, and necessary activity that is in the

19  public interest; and it shall develop a regulatory process

20  that shall enable the ports of this state to conduct such

21  activities in an environmentally sound, safe, expeditious, and

22  cost-efficient manner.  It is the further intent of the

23  Legislature that the permitting and enforcement of dredging,

24  dredged-material management, and other related activities for

25  Florida's deepwater ports pursuant to this chapter and

26  chapters 161, 253, and 373 shall be consolidated within the

27  department's Division of Water Resource Management

28  Environmental Resource Permitting and, with the concurrence of

29  the affected deepwater port or ports, may be administered by a

30  district office of the department or delegated to an approved

31  local environmental program.


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    CS for SB 1250                                Second Engrossed



  1         Section 7.  Section 86 of chapter 93-213, Laws of

  2  Florida, is amended to read:

  3         Section 86.  The Department of Environmental Regulation

  4  is authorized 54 career service positions for administering

  5  the state NPDES program. Twenty-five career service positions

  6  are authorized for startup of the program beginning July 1,

  7  1993, and the remaining 29 career service positions beginning

  8  January 1, 1994. The state NPDES program staffing shall start

  9  July 1, 1993, with completion targeted for 6 months following

10  United States Environmental Protection Agency authorization to

11  administer the National Pollutant Discharge Elimination System

12  program. Implementation of positions is subject to review and

13  final approval by the secretary of the Department of

14  Environmental Regulation. The sum of $3.2 million is hereby

15  appropriated from the Pollution Recovery Trust Fund to cover

16  program startup costs. Such funds are to be repaid from a fund

17  the Legislature deems appropriate, no later than July 1, 2000.

18         Section 8.  Section 373.136, Florida Statutes, is

19  amended to read:

20         373.136  Enforcement of regulations and orders.--

21         (1)  The governing board may enforce its regulations

22  and orders adopted pursuant to this chapter, by suit for

23  injunction or other appropriate action in the courts of the

24  state.

25         (2)  The court may award to the prevailing party or

26  parties reasonable attorney's fees for services rendered in

27  administrative hearings, actions at law, and all appellate

28  proceedings resulting therefrom under the provisions of ch.

29  373.

30         (a)  In addition to the above, the court may award all

31  costs and charges incident to such actions.


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    CS for SB 1250                                Second Engrossed



  1         (b)  The provisions of s. 57.111 apply to all state

  2  agencies, including, but not limited to, all water management

  3  districts.

  4         (c)  This paragraph is remedial and shall apply to any

  5  action pending on the effective date of this act.

  6         (3)(2)  Any action by a citizen of the state to seek

  7  judicial enforcement of any of the provisions of this chapter

  8  shall be governed by the Florida Environmental Protection Act,

  9  s. 403.412.

10         Section 9.  Notwithstanding section 20.255(2), Florida

11  Statutes, the Secretary of the Department of Environmental

12  Protection is authorized to restructure and reorganize the

13  department within the current statutory prescribed divisions

14  and in compliance with section 216.292(4), Florida Statutes,

15  1998 Supplement, to increase efficiency in carrying out the

16  agency's statutory mission and objectives. Actions taken under

17  the authority granted by this section must be taken in

18  consultation with the Executive Office of the Governor. The

19  secretary shall submit a report describing actions taken and

20  additional plans for implementing the provisions of this

21  section to the Governor, the President of the Senate, and the

22  Speaker of the House of Representatives by 30 days after this

23  bill becomes a law. The department shall submit status reports

24  on a monthly basis through December 1999.

25         Section 10.  Subsection (21) is added to section

26  403.031, Florida Statutes, to read:

27         403.031  Definitions.--In construing this chapter, or

28  rules and regulations adopted pursuant hereto, the following

29  words, phrases, or terms, unless the context otherwise

30  indicates, have the following meanings:

31


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    CS for SB 1250                                Second Engrossed



  1         (21)  "Total maximum daily load" is defined as the sum

  2  of the individual wasteload allocations for point sources and

  3  the load allocations for nonpoint sources and natural

  4  background. Prior to determining individual wasteload

  5  allocations and load allocations, the maximum amount of a

  6  pollutant that a water body or water segment can assimilate

  7  from all sources without exceeding water quality standards

  8  must first be calculated.

  9         Section 11.  Section 403.067, Florida Statutes, is

10  created to read:

11         403.067  Establishment and implementation of total

12  maximum daily loads.--

13         (1)  LEGISLATIVE FINDINGS AND INTENT.--In furtherance

14  of public policy established in s. 403.021, the Legislature

15  declares that the waters of the state are among its most basic

16  resources and that the development of a total maximum daily

17  load program for state waters as required by ss. 303(d) of the

18  Clean Water Act. Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et

19  seq. will promote improvements in water quality throughout the

20  state through the coordinated control of point and nonpoint

21  sources of pollution. The Legislature finds that, while point

22  and nonpoint sources of pollution have been managed through

23  numerous programs, better coordination among these efforts and

24  additional management measures may be needed in order to

25  achieve the restoration of impaired water bodies. The

26  scientifically based total maximum daily load program is

27  necessary to fairly and equitably allocate pollution loads to

28  both nonpoint and point sources. Implementation of the

29  allocation shall include consideration of a cost-effective

30  approach coordinated between contributing point and nonpoint

31  sources of pollution for impaired water bodies or water body


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    CS for SB 1250                                Second Engrossed



  1  segments and may include the opportunity to implement the

  2  allocation through non-regulatory and incentive-based

  3  programs. The Legislature further declares that the Department

  4  of Environmental Protection shall be the lead agency in

  5  administering this program and shall coordinate with local

  6  governments, water management districts, the Department of

  7  Agriculture and Consumer Services, local soil and water

  8  conservation districts, environmental groups, regulated

  9  interests, other appropriate state agencies, and affected

10  pollution sources in developing and executing the total

11  maximum daily load program.

12         (2)  LIST OF SURFACE WATERS OR SEGMENTS.--In accordance

13  with ss. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33

14  U.S.C. ss. 1251 et seq., the department must submit

15  periodically to the United States Environmental Protection

16  Agency a list of surface waters or segments for which total

17  maximum daily load assessments will be conducted. The

18  assessments shall evaluate the water quality conditions of the

19  listed waters and, if such waters are determined not to meet

20  water quality standards, total maximum daily loads shall be

21  established, subject to the provisions of s. 403.067(4). The

22  department shall establish a priority ranking and schedule for

23  analyzing such waters.

24         (a)  The list, priority ranking, and schedule cannot be

25  used in the administration or implementation of any regulatory

26  program. However, this paragraph does not prohibit any agency

27  from employing the data or other information used to establish

28  the list, priority ranking, or schedule in administering any

29  program.

30         (b)  The list, priority ranking, and schedule prepared

31  under this subsection shall be made available for public


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    CS for SB 1250                                Second Engrossed



  1  comment, but shall not be subject to challenge under chapter

  2  120.

  3         (c)  The provisions of this subsection are applicable

  4  to all lists prepared by the department and submitted to the

  5  United States Environmental Protection Agency pursuant to

  6  section ss. 303(d) of the Clean Water Act. Pub. L. No. 92-500,

  7  33 U.S.C. ss. 1251 et seq., including those submitted prior to

  8  the effective date of this act, except as provided in s.

  9  403.067(4).

10         (d)  If the department proposes to implement total

11  maximum daily load calculations or allocations established

12  prior to the effective date of this act, the department shall

13  adopt those calculations and allocations by rule by the

14  secretary pursuant to ss. 120.54, 120.536(1) and

15  403.067(6)(d).

16         (3)  ASSESSMENT.--

17         (a)  Based on the priority ranking and schedule for a

18  particular listed water body or water body segment, the

19  department shall conduct a total maximum daily load assessment

20  of the basin in which the water body or water body segment is

21  located using the methodology developed pursuant to s.

22  403.067(3)(b). In conducting this assessment, the department

23  shall coordinate with the local water management district, the

24  Department of Agriculture and Consumer Services, other

25  appropriate state agencies, soil and water conservation

26  districts, environmental groups, regulated interests, and

27  other interested parties.

28         (b)  The department shall adopt by rule a methodology

29  for determining those waters which are impaired. The rule

30  shall provide for consideration as to whether water quality

31  standards codified in chapter 62-302, Florida Administrative


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    CS for SB 1250                                Second Engrossed



  1  Code, are being exceeded, based on objective and credible

  2  data, studies and reports, including surface water improvement

  3  and management plans approved by water management districts

  4  under s. 373.456 and pollutant load reduction goals developed

  5  according to department rule. Such rule also shall set forth:

  6         1.  Water quality sample collection and analysis

  7  requirements, accounting for ambient background conditions,

  8  seasonal and other natural variations;

  9         2.  Approved methodologies;

10         3.  Quality assurance and quality control protocols;

11         4.  Data modeling; and

12         5.  Other appropriate water quality assessment

13  measures.

14         (c)  If the department has adopted a rule establishing

15  a numerical criterion for a particular pollutant, a narrative

16  or biological criterion may not be the basis for determining

17  an impairment in connection with that pollutant unless the

18  department identifies specific factors as to why the numerical

19  criterion is not adequate to protect water quality.  If water

20  quality non-attainment is based on narrative or biological

21  criteria, the specific factors concerning particular

22  pollutants shall be identified prior to a total maximum daily

23  load being developed for those criteria for that surface water

24  or surface water segment.

25         (4)  APPROVED LIST.--If the department determines,

26  based on the total maximum daily load assessment methodology

27  described in s. 403.067(3), that water quality standards are

28  not being achieved and that technology-based effluent

29  limitations and other pollution control programs under local,

30  state, or federal authority, including Everglades restoration

31  activities pursuant to s. 373.4592 and the National Estuary


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    CS for SB 1250                                Second Engrossed



  1  Program, which are designed to restore such waters for the

  2  pollutant of concern are not sufficient to result in

  3  attainment of applicable surface water quality standards, it

  4  shall confirm that determination by issuing a subsequent,

  5  updated list of those water bodies or segments for which total

  6  maximum daily loads will be calculated. In association with

  7  this updated list the department shall establish priority

  8  rankings and schedules by which water bodies or segments will

  9  be subjected to total maximum daily load calculations. If a

10  surface water or water segment is to be listed under this

11  subsection, the department must specify the particular

12  pollutants causing the impairment and the concentration of

13  those pollutants causing the impairment relative to the water

14  quality standard.  This updated list shall be approved and

15  amended by order of the department subsequent to completion of

16  an assessment of each water body or water body segment, and

17  submitted to the United States Environmental Protection

18  Agency.  Each order shall be subject to challenge under ss.

19  120.569 and 120.57.

20         (5)  REMOVAL FROM LIST.--At any time throughout the

21  total maximum daily load process, surface waters or segments

22  evaluated or listed under this section shall be removed from

23  the lists described in s. 403.067(2) or s. 403.067(4) upon

24  demonstration that water quality criteria are being attained,

25  based on data equivalent to that required by rule under s.

26  403.067(3).

27         (6)  CALCULATION AND ALLOCATION.--

28         (a)  Calculation of total maximum daily load.

29         1.  Prior to developing a total maximum daily load

30  calculation for each water body or water body segment on the

31  list specified in s. 403.067(4), the department shall


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    CS for SB 1250                                Second Engrossed



  1  coordinate with applicable local governments, water management

  2  districts, the Department of Agriculture and Consumer

  3  Services, other appropriate state agencies, local soil and

  4  water conservation districts, environmental groups, regulated

  5  interests, and affected pollution sources to determine the

  6  information required, accepted methods of data collection and

  7  analysis, and quality control/quality assurance requirements.

  8  The analysis may include mathematical water quality modeling

  9  using approved procedures and methods.

10         2.  The department shall develop total maximum daily

11  load calculations for each water body or water body segment on

12  the list described in s. 403.067(4) according to the priority

13  ranking and schedule unless the impairment of such waters is

14  due solely to activities other than point and nonpoint sources

15  of pollution.  For waters determined to be impaired due solely

16  to factors other than point and nonpoint sources of pollution,

17  no total maximum daily load will be required.  A total maximum

18  daily load may be required for those waters that are impaired

19  predominantly due to activities other than point and nonpoint

20  sources. The total maximum daily load calculation shall

21  establish the amount of a pollutant that a water body or water

22  body segment can assimilate without exceeding water quality

23  standards, and shall account for seasonal variations and

24  include a margin of safety that takes into account any lack of

25  knowledge concerning the relationship between effluent

26  limitations and water quality.  The total maximum daily load

27  may be based on a pollutant load reduction goal developed by a

28  water management district, provided that such pollutant load

29  reduction goal is promulgated by the department in accordance

30  with the procedural and substantive requirements of this

31  subsection.


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    CS for SB 1250                                Second Engrossed



  1         (b)  Allocation of total maximum daily loads. The total

  2  maximum daily loads shall include establishment of reasonable

  3  and equitable allocations of the total maximum daily load

  4  among point and nonpoint sources that will alone, or in

  5  conjunction with other management and restoration activities,

  6  provide for the attainment of water quality standards and the

  7  restoration of impaired waters. The allocations shall

  8  establish the maximum amount of the water pollutant from a

  9  given source or category of sources that may be discharged or

10  released into the water body or water body segment in

11  combination with other discharges or releases. Such

12  allocations shall be designed to attain water quality

13  standards and shall be based on consideration of the

14  following:

15         1.  Existing treatment levels and management practices;

16         2.  Differing impacts pollutant sources may have on

17  water quality;

18         3.  The availability of treatment technologies,

19  management practices, or other pollutant reduction measures;

20         4.  Environmental, economic, and technological

21  feasibility of achieving the allocation;

22         5.  The cost benefit associated with achieving the

23  allocation;

24         6.  Reasonable timeframes for implementation;

25         7.  Potential applicability of any moderating

26  provisions such as variances, exemptions, and mixing zones;

27  and

28         8.  The extent to which nonattainment of water quality

29  standards is caused by pollution sources outside of Florida,

30  discharges that have ceased, or alterations to water bodies

31  prior to the date of this act.


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    CS for SB 1250                                Second Engrossed



  1         (c)  Not later than February 1, 2001, the department

  2  shall submit a report to the Governor, the President of the

  3  Senate, and the Speaker of the House of Representatives

  4  containing recommendations, including draft legislation, for

  5  any modifications to the process for allocating total maximum

  6  daily loads, including the relationship between allocations

  7  and the basin planning process. Such recommendations shall be

  8  developed by the department in cooperation with a technical

  9  advisory committee which includes representatives of affected

10  parties, environmental organizations, water management

11  districts, and other appropriate local, state, and federal

12  government agencies. The technical advisory committee shall

13  also include such members as may be designated by the

14  President of the Senate and the Speaker of the House of

15  Representatives.

16         (d)  The total maximum daily load calculations and

17  allocations for each water body or water body segment shall be

18  adopted by rule by the secretary pursuant to ss. 120.54 and

19  120.536(1), and 403.805.  The rules adopted pursuant to this

20  paragraph shall not be subject to approval by the

21  Environmental Regulation Commission.  As part of the rule

22  development process, the department shall hold at least one

23  public workshop in the vicinity of the water body or water

24  body segment for which the total maximum daily load is being

25  developed. Notice of the public workshop shall be published

26  not less than 5 days nor more than 15 days before the public

27  workshop in a newspaper of general circulation in the county

28  or counties containing the water bodies or water body segments

29  for which the total maximum daily load calculation and

30  allocation are being developed.

31         (7)  IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.--


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    CS for SB 1250                                Second Engrossed



  1         (a)  The department shall be the lead agency in

  2  coordinating the implementation of the total maximum daily

  3  load allocation through water quality protection

  4  programs.  Application of a total maximum daily load

  5  calculation or allocation by a water management district shall

  6  be consistent with this section and shall not require the

  7  issuance of an order or a separate action pursuant to s.

  8  120.54 or s. 120.536(1) for adoption of the calculation and

  9  allocation previously established by the department.  Such

10  programs may include, but are not limited to:

11         1.  Permitting and other existing regulatory programs;

12         2.  Nonregulatory and incentive-based programs,

13  including best management practices, cost sharing, waste

14  minimization, pollution prevention, and public education;

15         3.  Other water quality management and restoration

16  activities, for example surface water improvement and

17  management plans approved by water management districts under

18  s. 373.456;

19         4.  Pollutant trading or other equitable economically

20  based agreements;

21         5.  Public works including capital facilities; or

22         6.  Land acquisition.

23         (b)  In developing and implementing the total maximum

24  daily load allocation, the department may develop a basin

25  plan. The basin plan will serve to fully integrate all the

26  management strategies available to the state for the purpose

27  of achieving water quality restoration. The basin planning

28  process is intended to involve the broadest possible range of

29  interested parties, with the objective of encouraging the

30  greatest amount of cooperation and consensus possible. The

31  department shall hold at least one public meeting in the


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    CS for SB 1250                                Second Engrossed



  1  vicinity of the basin to discuss and receive comments during

  2  the basin planning process and shall otherwise encourage

  3  public participation to the greatest practical extent. Notice

  4  of the public meeting shall be published in a newspaper of

  5  general circulation in each county in which the basin lies not

  6  less than 5 days nor more than 15 days before the public

  7  meeting.  A basin plan shall not supplant or otherwise alter

  8  any assessment made under s. 403.086(3) and s.403.086(4), or

  9  any calculation or allocation made under s. 403.086(6).

10         (c)  The department, in cooperation with the water

11  management districts and other interested parties, as

12  appropriate, may develop suitable interim measures, best

13  management practices, or other measures necessary to achieve

14  the level of pollution reduction established by the department

15  for nonagricultural nonpoint pollutant sources in allocations

16  developed pursuant to s. 403.067(6)(b).  These practices and

17  measures may be adopted by rule by the department and the

18  water management districts pursuant to ss. 120.54 and

19  120.536(1), and may be implemented by those parties

20  responsible for nonagricultural nonpoint pollutant sources and

21  the department and the water management districts shall assist

22  with implementation.  Where interim measures, best management

23  practices, or other measures are adopted by rule, the

24  effectiveness of such practices in achieving the levels of

25  pollution reduction established in allocations developed by

26  the department pursuant to s. 403.067(6)(b) shall be verified

27  by the department.  Implementation, in accordance with

28  applicable rules, of practices that have been verified by the

29  department to be effective at representative sites shall

30  provide a presumption of compliance with state water quality

31  standards and release from the provisions of s. 376.307(5) for


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    CS for SB 1250                                Second Engrossed



  1  those pollutants addressed by the practices, and the

  2  department is not authorized to institute proceedings against

  3  the owner of the source of pollution to recover costs or

  4  damages associated with the contamination of surface or ground

  5  water caused by those pollutants. Such rules shall also

  6  incorporate provisions for a notice of intent to implement the

  7  practices and a system to assure the implementation of the

  8  practices, including recordkeeping requirements. Where water

  9  quality problems are detected despite the appropriate

10  implementation, operation and maintenance of best management

11  practices and other measures according to rules adopted under

12  this paragraph, the department or the water management

13  districts shall institute a reevaluation of the best

14  management practice or other measures.

15         (d)  The Department of Agriculture and Consumer

16  Services may develop and adopt by rule pursuant to ss. 120.54

17  and 120.536(1) suitable interim measures, best management

18  practices, or other measures necessary to achieve the level of

19  pollution reduction established by the department for

20  agricultural pollutant sources in allocations developed

21  pursuant to s. 403.067(6)(b). These practices and measures may

22  be implemented by those parties responsible for agricultural

23  pollutant sources and the department, the water management

24  districts and the Department of Agriculture and Consumer

25  Services shall assist with implementation.  Where interim

26  measures, best management practices, or other measures are

27  adopted by rule, the effectiveness of such practices in

28  achieving the levels of pollution reduction established in

29  allocations developed by the department pursuant to s.

30  403.067(6)(b) shall be verified by the department.

31  Implementation, in accordance with applicable rules, of


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    CS for SB 1250                                Second Engrossed



  1  practices that have been verified by the department to be

  2  effective at representative sites shall provide a presumption

  3  of compliance with state water quality standards and release

  4  from the provisions of s. 376.307(5) for those pollutants

  5  addressed by the practices, and the department is not

  6  authorized to institute proceedings against the owner of the

  7  source of pollution to recover costs or damages associated

  8  with the contamination of surface or ground water caused by

  9  those pollutants.  In the process of developing and adopting

10  rules for interim measures, best management practices, or

11  other measures, the Department of Agriculture and Consumer

12  Services shall consult with the department, the Department of

13  Health, the water management districts, representatives from

14  affected farming groups, and environmental group

15  representatives. Such rules shall also incorporate provisions

16  for a notice of intent to implement the practices and a system

17  to assure the implementation of the practices, including

18  recordkeeping requirements. Where water quality problems are

19  detected despite the appropriate implementation, operation and

20  maintenance of best management practices and other measures

21  according to rules adopted under this paragraph, the

22  Department of Agriculture and Consumer Services shall

23  institute a reevaluation of the best management practice or

24  other measure.

25         (e)  The provisions of s. 403.067(7) paragraphs (c) and

26  (d) shall not preclude the department or water management

27  district from requiring compliance with water quality

28  standards or with current best management practice

29  requirements set forth in any applicable regulatory program

30  authorized by law for the purpose of protecting water

31  quality.  Additionally, s. 403.067(7)(c) and s. 403.067(7)(d)


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    CS for SB 1250                                Second Engrossed



  1  are applicable only to the extent that they do not conflict

  2  with any rules promulgated by the department that are

  3  necessary to maintain a federally delegated or approved

  4  program.

  5         (8)  RULES.--The department is authorized to adopt

  6  rules pursuant to ss. 120.54 and 120.536(1) for:

  7         (a)  Delisting water bodies or water body segments from

  8  the list developed under s. 403.067(4) pursuant to the

  9  guidance under s. 403.067(5);

10         (b)  Administration of funds to implement the total

11  maximum daily load program;

12         (c)  Procedures for pollutant trading among the

13  pollutant sources to a water body or water body segment,

14  including a mechanism for the issuance and tracking of

15  pollutant credits. Such procedures may be implemented through

16  permits or other authorizations and must be legally binding.

17  No rule implementing a pollutant trading program shall become

18  effective prior to review and ratification by the Legislature;

19  and

20         (d)  The total maximum daily load calculation in

21  accordance with s. 403.067(6)(a) immediately upon the

22  effective date of this act, for those eight water segments

23  within Lake Okeechobee proper as submitted to the United

24  States Environmental Protection Agency pursuant to s.

25  403.067(2).

26         (9)  APPLICATION.--The provisions of this section are

27  intended to supplement existing law and nothing in this

28  section shall be construed as altering any applicable state

29  water quality standards or as restricting the authority

30  otherwise granted to the department or a water management

31  district under this chapter or chapter 373. The exclusive


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    CS for SB 1250                                Second Engrossed



  1  means of state implementation of section ss. 303(d) of the

  2  Clean Water Act. Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et

  3  seq. shall be in accordance with the identification,

  4  assessment, calculation and allocation, and implementation

  5  provisions of s. 403.067.

  6         (10)  CONSTRUCTION.--Nothing in this section shall be

  7  construed as limiting the applicability or consideration of

  8  any mixing zone, variance, exemption, site specific

  9  alternative criteria, or other moderating provision.

10         (11)  IMPLEMENTATION OF ADDITIONAL PROGRAMS.--The

11  department shall not implement, without prior legislative

12  approval, any additional regulatory authority pursuant to the

13  Clean Water Act ss. 303(d) or 40 CFR Part 130, if such

14  implementation would result in water quality discharge

15  regulation of activities not currently subject to regulation.

16         (12)  In order to provide adequate due process while

17  ensuring timely development of total maximum daily loads,

18  proposed rules and orders authorized by this act shall be

19  ineffective pending resolution of a section 120.54(3), 120.56,

20  120.569, or 120.57 administrative proceeding.  However, the

21  department may go forward prior to resolution of such

22  administrative proceedings with subsequent agency actions

23  authorized by s. 403.067(2) through s. 403.067(6), provided

24  that the department can support and substantiate those actions

25  using the underlying bases for the rules or orders without the

26  benefit of any legal presumption favoring, or in deference to,

27  the challenged rules or orders.

28         Section 12.  Subsection (1) of section 403.805, Florida

29  Statutes, is amended to read:

30         403.805  Secretary; powers and duties.--

31


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    CS for SB 1250                                Second Engrossed



  1         (1)  The secretary shall have the powers and duties of

  2  heads of departments set forth in chapter 20, including the

  3  authority to adopt rules pursuant to ss. 120.536(1) and 120.54

  4  to implement the provisions of chapters 253, 373, and 376 and

  5  this chapter. The secretary shall have rulemaking

  6  responsibility under chapter 120, but shall submit any

  7  proposed rule containing standards to the Environmental

  8  Regulation Commission for approval, modification, or

  9  disapproval pursuant to s. 403.804, except for total maximum

10  daily load calculations and allocations developed pursuant to

11  s. 403.067(6).  The secretary shall have responsibility for

12  final agency action regarding total maximum daily load

13  calculations and allocations developed pursuant to s.

14  403.067(6).  The secretary shall employ legal counsel to

15  represent the department in matters affecting the department.

16  Except for appeals on permits specifically assigned by this

17  act to the Governor and Cabinet, and unless otherwise

18  prohibited by law, the secretary may delegate the authority

19  assigned to the department by this act to the assistant

20  secretary, division directors, and district and branch office

21  managers and to the water management districts.

22         Section 13.  The department, coordinating with the

23  water management districts and the Department of Agriculture

24  and Consumer Services, shall evaluate the effectiveness of the

25  implementation of total maximum daily loads for a period of 5

26  years from the effective date of this act. The department

27  shall document that effectiveness, using all data and

28  information at its disposal, in a report to the Governor, the

29  President of the Senate, and the Speaker of the House of

30  Representatives by January 1, 2005. The report shall provide

31  specific recommendations for statutory changes necessary to


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    CS for SB 1250                                Second Engrossed



  1  implement total maximum daily loads more effectively,

  2  including the development or expansion of pollution prevention

  3  and pollutant trading opportunities, and best management

  4  practices. The report shall also provide recommendations for

  5  statutory changes relating to pollutant sources which are not

  6  subject to permitting under chapter 403, Florida Statutes, or

  7  chapter 373, Florida Statutes, and which do not implement the

  8  nonregulatory practices or other measures outlined in the

  9  basin plan prepared under s. 403.067, Florida Statutes, in

10  accordance with the schedule of the plan, or fail to implement

11  them as designed.

12         Section 14.  This act shall take effect July 1, 1999.

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