House Bill 2067e2

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                                      CS/HB 2067, Second Engrossed



  1                      A bill to be entitled

  2         An act relating to water resource management;

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

  4         scheduled July 1, 1999, repeal of certain

  5         provisions of the interim wetlands permitting

  6         program for the Northwest Florida Water

  7         Management District; directing the Northwest

  8         Florida Water Management District and the

  9         Department of Environmental Protection to

10         develop a plan to implement an environmental

11         resource permitting program within the

12         jurisdiction of the district by a specified

13         date; requiring reports to the Legislature on

14         the progress of the planning efforts; providing

15         that certain jurisdictional declaratory

16         statements shall not expire until a specified

17         date; amending s. 252.937, F.S.; renaming the

18         Division of Water Facilities of the department

19         as the Division of Water Resource Management;

20         amending ss. 378.901 and 403.021, F.S.;

21         deleting references to the Division of

22         Environmental Resource Permitting; amending s.

23         86 of ch. 93-213, Laws of Florida; eliminating

24         repayment of funds appropriated for

25         administering the state NPDES program;

26         requiring reinstitution of certain suspended

27         payments in lieu of taxes; amending subsection

28         (2) of section 373.136, F.S.; allowing the

29         prevailing party to recover attorney's fees and

30         costs;  amending s. 403.031, F.S.; defining the

31         term "total maximum daily load"; creating s.


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                                      CS/HB 2067, Second Engrossed



  1         403.067, F.S.; authorizing the Department of

  2         Environmental Protection to adopt a process of

  3         listing surface waters not meeting water

  4         quality standards and for the process of

  5         establishing, allocating, and implementing

  6         total maximum daily loads applicable to such

  7         listed waters; providing specific authority for

  8         the department to implement s. 1313, 33 U.S.C.;

  9         providing legislative findings and intent;

10         providing for a listing of surface waters;

11         providing for an assessment; providing for an

12         adopted list; providing for removal from the

13         list; providing for calculation of total

14         maximum daily load; providing for

15         implementation; providing for rules; providing

16         for application; providing for construction;

17         providing for evaluation; amending s. 403.805,

18         F.S.; revising language with respect to the

19         powers and duties of the Secretary of the

20         Department of Environmental Protection;

21         providing authorization for the Secretary of

22         the Department of Environmental Protection to

23         reorganize the department under certain

24         conditions; providing an effective date.

25

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

27

28         Section 1.  Subsection (6) of section 373.4145, Florida

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

30  section, to read:

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                                      CS/HB 2067, 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/HB 2067, 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 2.  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 3.  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/HB 2067, 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 4.  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)(a)  The Legislature finds and declares that it is

10  essential to preserve and maintain authorized water depth in

11  the existing navigation channels, port harbors, turning

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

13  for the continued safe navigation of deepwater shipping

14  commerce.  The department shall recognize that maintenance of

15  authorized water depths consistent with port master plans

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

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

18  public interest; and it shall develop a regulatory process

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

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

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

22  Legislature that the permitting and enforcement of dredging,

23  dredged-material management, and other related activities for

24  Florida's deepwater ports pursuant to this chapter and

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

26  department's Division of Water Resource Management

27  Environmental Resource Permitting and, with the concurrence of

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

29  district office of the department or delegated to an approved

30  local environmental program.

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                                      CS/HB 2067, Second Engrossed



  1         Section 5.  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

17  fund the Legislature deems appropriate, no later than July 1,

18  2000.

19         Section 6.  If the Department of Environmental

20  Protection or a water management district has made a payment

21  in lieu of taxes to a governmental entity and subsequently

22  suspended such payment, the department or water management

23  district shall reinstitute appropriate payments and continue

24  the payments in consecutive years until the governmental

25  entity has received a total of 10 payments for each tax loss.

26         Section 7.  Subsection (2) of section 373.136, Florida

27  Statutes, is amended to read:

28         (2)  Any persons who prevail in an action or legal

29  proceeding brought against them by the department, the

30  governing board of any water management district, any local

31  board, or a local government to which authority has been


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                                      CS/HB 2067, Second Engrossed



  1  delegated under s. 373.103(8). pursuant to this chapter shall

  2  be entitled to recover reasonable attorney's fees and costs.

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

  4  judicial enforcement of any of the provisions of this chapter

  5  shall be governed by the Florida Environmental Protection Act,

  6  s. 403.412.

  7         Section 8.  Subsection (21) is added to section

  8  403.031, Florida Statutes, to read:

  9         403.031  Definitions.--In construing this chapter, or

10  rules and regulations adopted pursuant hereto, the following

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

12  indicates, have the following meanings:

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

14  of the individual wasteload allocations for point sources and

15  the load allocations for nonpoint sources and natural

16  background. Prior to determining individual wasteload

17  allocations and load allocations, the maximum amount of a

18  pollutant that a water body or water segment can assimilate

19  from all sources without exceeding water quality standards

20  must first be calculated.

21         Section 9.  Section 403.067, Florida Statutes, is

22  created to read:

23         403.067  Establishment and implementation of total

24  maximum daily loads.--

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

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

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

28  resources and that the development of a total maximum daily

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

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

31  seq. will promote improvements in water quality throughout the


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                                      CS/HB 2067, Second Engrossed



  1  state through the coordinated control of point and nonpoint

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

  3  and nonpoint sources of pollution have been managed through

  4  numerous programs, better coordination among these efforts and

  5  additional management measures may be needed in order to

  6  achieve the restoration of impaired water bodies. The

  7  scientifically based total maximum daily load program is

  8  necessary to fairly and equitably allocate pollution loads to

  9  both nonpoint and point sources. Implementation of the

10  allocation shall include consideration of a cost-effective

11  approach coordinated between contributing point and nonpoint

12  sources of pollution for impaired water bodies or water body

13  segments and may include the opportunity to implement the

14  allocation through non-regulatory and incentive-based

15  programs. The Legislature further declares that the Department

16  of Environmental Protection shall be the lead agency in

17  administering this program and shall coordinate with local

18  governments, water management districts, the Department of

19  Agriculture and Consumer Services, local soil and water

20  conservation districts, environmental groups, regulated

21  interests, other appropriate state agencies, and affected

22  pollution sources in developing and executing the total

23  maximum daily load program.

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

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

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

27  periodically to the United States Environmental Protection

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

29  maximum daily load assessments will be conducted. The

30  assessments shall evaluate the water quality conditions of the

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


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                                      CS/HB 2067, Second Engrossed



  1  water quality standards, total maximum daily loads shall be

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

  3  department shall establish a priority ranking and schedule for

  4  analyzing such waters.

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

  6  used in the administration or implementation of any regulatory

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

  8  from employing the data or other information used to establish

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

10  program.

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

12  under this subsection shall be made available for public

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

14  120.

15         (c)  The provisions of this subsection are applicable

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

17  United States Environmental Protection Agency pursuant to ss.

18  303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C.

19  ss. 1251 et seq., including those submitted prior to the

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

21  403.067(4).

22         (d)  If the department proposes to implement total

23  maximum daily load calculations or allocations established

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

25  adopt those calculations and allocations by rule by the

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

27  403.067(6)(d).

28         (3)  ASSESSMENT.--

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

30  particular listed water body or water body segment, the

31  department shall conduct a total maximum daily load assessment


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                                      CS/HB 2067, Second Engrossed



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

  2  located using the methodology developed pursuant to s.

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

  4  shall coordinate with the local water management district, the

  5  Department of Agriculture and Consumer Services, other

  6  appropriate state agencies, soil and water conservation

  7  districts, environmental groups, regulated interests, and

  8  other interested parties.

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

10  for determining those waters which are impaired. The rule

11  shall provide for consideration as to whether water quality

12  standards codified in chapter 62-302, Florida Administrative

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

14  data, studies and reports, including surface water improvement

15  and management plans approved by water management districts

16  under s. 373.456 and pollutant load reduction goals developed

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

18         1.  Water quality sample collection and analysis

19  requirements, accounting for ambient background conditions,

20  seasonal and other natural variations;

21         2.  Approved methodologies;

22         3.  Quality assurance and quality control protocols;

23         4.  Data modeling; and

24         5.  Other appropriate water quality assessment

25  measures.

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

27  a numerical criterion for a particular pollutant, a narrative

28  or biological criterion may not be the basis for determining

29  an impairment in connection with that pollutant unless the

30  department identifies specific factors as to why the numerical

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


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                                      CS/HB 2067, Second Engrossed



  1  quality non-attainment is based on narrative or biological

  2  criteria, the specific factors concerning particular

  3  pollutants shall be identified prior to a total maximum daily

  4  load being developed for those criteria for that surface water

  5  or surface water segment.

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

  7  based on the total maximum daily load assessment methodology

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

  9  not being achieved and that technology-based effluent

10  limitations and other pollution control programs under local,

11  state, or federal authority, including Everglades restoration

12  activities pursuant to s. 373.4592 and the National Estuary

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

14  pollutant of concern are not sufficient to result in

15  attainment of applicable surface water quality standards, it

16  shall confirm that determination by issuing a subsequent,

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

18  maximum daily loads will be calculated. In association with

19  this updated list the department shall establish priority

20  rankings and schedules by which water bodies or segments will

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

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

23  subsection, the department must specify the particular

24  pollutants causing the impairment and the concentration of

25  those pollutants causing the impairment relative to the water

26  quality standard.  This updated list shall be approved and

27  amended by order of the department subsequent to completion of

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

29  submitted to the United States Environmental Protection

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

31  120.569 and 120.57.


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                                      CS/HB 2067, Second Engrossed



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

  2  total maximum daily load process, surface waters or segments

  3  evaluated or listed under this section shall be removed from

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

  5  demonstration that water quality criteria are being attained,

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

  7  403.067(3).

  8         (6)  CALCULATION AND ALLOCATION.--

  9         (a)  Calculation of total maximum daily load.

10         1.  Prior to developing a total maximum daily load

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

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

13  coordinate with applicable local governments, water management

14  districts, the Department of Agriculture and Consumer

15  Services, other appropriate state agencies, local soil and

16  water conservation districts, environmental groups, regulated

17  interests, and affected pollution sources to determine the

18  information required, accepted methods of data collection and

19  analysis, and quality control/quality assurance requirements.

20  The analysis may include mathematical water quality modeling

21  using approved procedures and methods.

22         2.  The department shall develop total maximum daily

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

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

25  ranking and schedule unless the impairment of such waters is

26  due solely to activities other than point and nonpoint sources

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

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

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

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

31  predominantly due to activities other than point and nonpoint


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                                      CS/HB 2067, Second Engrossed



  1  sources. The total maximum daily load calculation shall

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

  3  body segment can assimilate without exceeding water quality

  4  standards, and shall account for seasonal variations and

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

  6  knowledge concerning the relationship between effluent

  7  limitations and water quality.  The total maximum daily load

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

  9  water management district, provided that such pollutant load

10  reduction goal is promulgated by the department in accordance

11  with the procedural and substantive requirements of this

12  subsection.

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

14  maximum daily loads shall include establishment of reasonable

15  and equitable allocations of the total maximum daily load

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

17  conjunction with other management and restoration activities,

18  provide for the attainment of water quality standards and the

19  restoration of impaired waters. The allocations shall

20  establish the maximum amount of the water pollutant from a

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

22  released into the water body or water body segment in

23  combination with other discharges or releases. Such

24  allocations shall be designed to attain water quality

25  standards and shall be based on consideration of the

26  following:

27         1.  Existing treatment levels and management practices;

28         2.  Differing impacts pollutant sources may have on

29  water quality;

30         3.  The availability of treatment technologies,

31  management practices, or other pollutant reduction measures;


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                                      CS/HB 2067, Second Engrossed



  1         4.  Environmental, economic, and technological

  2  feasibility of achieving the allocation;

  3         5.  The cost benefit associated with achieving the

  4  allocation;

  5         6.  Reasonable timeframes for implementation;

  6         7.  Potential applicability of any moderating

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

  8  and

  9         8.  The extent to which nonattainment of water quality

10  standards is caused by pollution sources outside of Florida,

11  discharges that have ceased, or alterations to water bodies

12  prior to the date of this act.

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

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

15  Senate, and the Speaker of the House of Representatives

16  containing recommendations, including draft legislation, for

17  any modifications to the process for allocating total maximum

18  daily loads, including the relationship between allocations

19  and the basin planning process. Such recommendations shall be

20  developed by the department in cooperation with a technical

21  advisory committee which includes representatives of affected

22  parties, environmental organizations, water management

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

24  government agencies. The technical advisory committee shall

25  also include such members as may be designated by the

26  President of the Senate and the Speaker of the House of

27  Representatives.

28         (d)  The total maximum daily load calculations and

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

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

31  120.536(1), and 403.805.  The rules adopted pursuant to this


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                                      CS/HB 2067, Second Engrossed



  1  paragraph shall not be subject to approval by the

  2  Environmental Regulation Commission.  As part of the rule

  3  development process, the department shall hold at least one

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

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

  6  developed. Notice of the public workshop shall be published

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

  8  workshop in a newspaper of general circulation in the county

  9  or counties containing the water bodies or water body segments

10  for which the total maximum daily load calculation and

11  allocation are being developed.

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

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

14  coordinating the implementation of the total maximum daily

15  load allocation through water quality protection

16  programs.  Application of a total maximum daily load

17  calculation or allocation by a water management district shall

18  be consistent with this section and shall not require the

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

20  120.54 or s. 120.536(1) for adoption of the calculation and

21  allocation previously established by the department.  Such

22  programs may include, but are not limited to:

23         1.  Permitting and other existing regulatory programs;

24         2.  Nonregulatory and incentive-based programs,

25  including best management practices, cost sharing, waste

26  minimization, pollution prevention, and public education;

27         3.  Other water quality management and restoration

28  activities, for example surface water improvement and

29  management plans approved by water management districts under

30  s. 373.456;

31


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                                      CS/HB 2067, Second Engrossed



  1         4.  Pollutant trading or other equitable economically

  2  based agreements;

  3         5.  Public works including capital facilities; or

  4         6.  Land acquisition.

  5         (b)  In developing and implementing the total maximum

  6  daily load allocation, the department may develop a basin

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

  8  management strategies available to the state for the purpose

  9  of achieving water quality restoration. The basin planning

10  process is intended to involve the broadest possible range of

11  interested parties, with the objective of encouraging the

12  greatest amount of cooperation and consensus possible. The

13  department shall hold at least one public meeting in the

14  vicinity of the basin to discuss and receive comments during

15  the basin planning process and shall otherwise encourage

16  public participation to the greatest practical extent. Notice

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

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

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

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

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

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

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

24  management districts and other interested parties, as

25  appropriate, may develop suitable interim measures, best

26  management practices, or other measures necessary to achieve

27  the level of pollution reduction established by the department

28  for nonagricultural nonpoint pollutant sources in allocations

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

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

31  water management districts pursuant to ss. 120.54 and


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                                      CS/HB 2067, Second Engrossed



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

  2  responsible for nonagricultural nonpoint pollutant sources and

  3  the department and the water management districts shall assist

  4  with implementation.  Where interim measures, best management

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

  6  effectiveness of such practices in achieving the levels of

  7  pollution reduction established in allocations developed by

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

  9  by the department.  Implementation, in accordance with

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

11  department to be effective at representative sites shall

12  provide a presumption of compliance with state water quality

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

14  those pollutants addressed by the practices, and the

15  department is not authorized to institute proceedings against

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

17  damages associated with the contamination of surface or ground

18  water caused by those pollutants. Such rules shall also

19  incorporate provisions for a notice of intent to implement the

20  practices and a system to assure the implementation of the

21  practices, including recordkeeping requirements. Where water

22  quality problems are detected despite the appropriate

23  implementation, operation and maintenance of best management

24  practices and other measures according to rules adopted under

25  this paragraph, the department or the water management

26  districts shall institute a reevaluation of the best

27  management practice or other measures.

28         (d)  The Department of Agriculture and Consumer

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

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

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


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                                      CS/HB 2067, Second Engrossed



  1  pollution reduction established by the department for

  2  agricultural pollutant sources in allocations developed

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

  4  be implemented by those parties responsible for agricultural

  5  pollutant sources and the department, the water management

  6  districts and the Department of Agriculture and Consumer

  7  Services shall assist with implementation.  Where interim

  8  measures, best management practices, or other measures are

  9  adopted by rule, the effectiveness of such practices in

10  achieving the levels of pollution reduction established in

11  allocations developed by the department pursuant to s.

12  403.067(6)(b) shall be verified by the department.

13  Implementation, in accordance with applicable rules, of

14  practices that have been verified by the department to be

15  effective at representative sites shall provide a presumption

16  of compliance with state water quality standards and release

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

18  addressed by the practices, and the department is not

19  authorized to institute proceedings against the owner of the

20  source of pollution to recover costs or damages associated

21  with the contamination of surface or ground water caused by

22  those pollutants.  In the process of developing and adopting

23  rules for interim measures, best management practices, or

24  other measures, the Department of Agriculture and Consumer

25  Services shall consult with the department, the Department of

26  Health, the water management districts, representatives from

27  affected farming groups, and environmental group

28  representatives. Such rules shall also incorporate provisions

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

30  to assure the implementation of the practices, including

31  recordkeeping requirements. Where water quality problems are


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                                      CS/HB 2067, Second Engrossed



  1  detected despite the appropriate implementation, operation and

  2  maintenance of best management practices and other measures

  3  according to rules adopted under this paragraph, the

  4  Department of Agriculture and Consumer Services shall

  5  institute a reevaluation of the best management practice or

  6  other measure.

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

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

  9  district from requiring compliance with water quality

10  standards or with current best management practice

11  requirements set forth in any applicable regulatory program

12  authorized by law for the purpose of protecting water

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

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

15  with any rules promulgated by the department that are

16  necessary to maintain a federally delegated or approved

17  program.

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

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

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

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

22  guidance under s. 403.067(5);

23         (b)  Administration of funds to implement the total

24  maximum daily load program;

25         (c)  Procedures for pollutant trading among the

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

27  including a mechanism for the issuance and tracking of

28  pollutant credits. Such procedures may be implemented through

29  permits or other authorizations and must be legally binding.

30  No rule implementing a pollutant trading program shall become

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                                      CS/HB 2067, Second Engrossed



  1  effective prior to review and ratification by the Legislature;

  2  and

  3         (d)  The total maximum daily load calculation in

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

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

  6  within Lake Okeechobee proper as submitted to the United

  7  States Environmental Protection Agency pursuant to s.

  8  403.067(2).

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

10  intended to supplement existing law and nothing in this

11  section shall be construed as altering any applicable state

12  water quality standards or as restricting the authority

13  otherwise granted to the department or a water management

14  district under this chapter or chapter 373. The exclusive

15  means of state implementation of ss. 303(d) of the Clean Water

16  Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be

17  in accordance with the identification, assessment, calculation

18  and allocation, and implementation provisions of s. 403.067.

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

20  construed as limiting the applicability or consideration of

21  any mixing zone, variance, exemption, site specific

22  alternative criteria, or other moderating provision.

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

24  department shall not implement, without prior legislative

25  approval, any additional regulatory authority pursuant to the

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

27  implementation would result in water quality discharge

28  regulation of activities not currently subject to regulation.

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

30  ensuring timely development of total maximum daily loads,

31  proposed rules and orders authorized by this act shall be


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                                      CS/HB 2067, Second Engrossed



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

  2  120.569, or 120.57 administrative proceeding.  However, the

  3  department may go forward prior to resolution of such

  4  administrative proceedings with subsequent agency actions

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

  6  that the department can support and substantiate those actions

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

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

  9  the challenged rules or orders.

10         Section 10.  Subsection (1) of section 403.805, Florida

11  Statutes, is amended to read:

12         403.805  Secretary; powers and duties.--

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

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

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

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

17  this chapter. The secretary shall have rulemaking

18  responsibility under chapter 120, but shall submit any

19  proposed rule containing standards to the Environmental

20  Regulation Commission for approval, modification, or

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

22  daily load calculations and allocations developed pursuant to

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

24  final agency action regarding total maximum daily load

25  calculations and allocations developed pursuant to s.

26  403.067(6).  The secretary shall employ legal counsel to

27  represent the department in matters affecting the department.

28  Except for appeals on permits specifically assigned by this

29  act to the Governor and Cabinet, and unless otherwise

30  prohibited by law, the secretary may delegate the authority

31  assigned to the department by this act to the assistant


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                                      CS/HB 2067, Second Engrossed



  1  secretary, division directors, and district and branch office

  2  managers and to the water management districts.

  3         Section 11.  The department, coordinating with the

  4  water management districts and the Department of Agriculture

  5  and Consumer Services, shall evaluate the effectiveness of the

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

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

  8  shall document that effectiveness, using all data and

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

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

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

12  specific recommendations for statutory changes necessary to

13  implement total maximum daily loads more effectively,

14  including the development or expansion of pollution prevention

15  and pollutant trading opportunities, and best management

16  practices. The report shall also provide recommendations for

17  statutory changes relating to pollutant sources which are not

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

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

20  nonregulatory practices or other measures outlined in the

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

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

23  them as designed.

24         Section 12.  Notwithstanding subsection 20.255(2),

25  Florida Statutes, the Secretary of the Department of

26  Environmental Protection is authorized to restructure and

27  reorganize the department within the current statutory

28  prescribed divisions and in compliance with s. 216.292, F.S.,

29  1998 Supplement, to increase efficiency in carrying out the

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

31  the authority granted by this section must be taken in


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                                      CS/HB 2067, Second Engrossed



  1  consultation with the Executive Office of the Governor subject

  2  to the notification and review procedures in s. 216.177,

  3  Florida Statutes. The secretary shall submit a report

  4  describing actions taken and additional plans for implementing

  5  the provisions of this section to the Governor, the President

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

  7  by 30 days after this bill becomes a law. The department shall

  8  submit status reports on a monthly basis through December

  9  1999.

10         Section 13.  This act shall take effect upon becoming a

11  law.

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