Senate Bill 2282

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    Florida Senate - 1999                                  SB 2282

    By Senator Laurent





    17-1335-99

  1                      A bill to be entitled

  2         An act relating to implementation of water

  3         quality standards; amending s. 403.031, F.S.;

  4         defining the terms "load allocation," "loading

  5         capacity," "nonpoint source," "total maximum

  6         load," and "wasteload allocation"; creating s.

  7         403.067, F.S.; authorizing the Department of

  8         Environmental Protection to adopt a process of

  9         listing surface waters not meeting water

10         quality standards and for the process of

11         establishing, allocating, and implementing

12         total maximum loads applicable to the listed

13         waters; providing specific authority for the

14         Department of Environmental Protection to

15         implement federal law; setting legislative

16         standards and prescribing procedural

17         requirements; requiring a report; providing an

18         effective date.

19

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

21

22         Section 1.  Subsections (21), (22), (23), (24), and

23  (25) are added to section 403.031, Florida Statutes, to read:

24         403.031  Definitions.--In construing this chapter, or

25  rules and regulations adopted pursuant hereto, the following

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

27  indicates, have the following meanings:

28         (21)  "Load allocation" means the portion of a

29  receiving water's loading capacity that is allocated to one of

30  its existing or future nonpoint sources of pollution.

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  1         (22)  "Loading capacity" means the mass of a pollutant

  2  that a water body can assimilate without a violation of water

  3  quality standards. For pollutants that cannot be measured in

  4  terms of mass, it means the maximum change that can occur from

  5  the best practicable condition in a surface water without

  6  causing a violation of the surface water quality standards.

  7         (23)  "Nonpoint source" means diffuse runoff without a

  8  single point of origin that flows over the surface of the

  9  ground by stormwater and is then introduced to surface or

10  ground waters. Nonpoint sources include atmospheric deposition

11  and runoff or leaching from agricultural lands, urban areas,

12  unvegetated lands, onsite sewage treatment and disposal

13  systems, and construction sites.

14         (24)  "Total maximum load" means the sum of the

15  individual wasteload allocations for point sources, load

16  allocations for nonpoint sources and natural background

17  levels, established at a level necessary to achieve compliance

18  with applicable surface water quality standards for a

19  particular pollutant. The total maximum load also should

20  include any necessary reserves for future growth,

21  consideration of seasonal variations, and a margin of safety

22  to account for the uncertainty concerning the relationship

23  between the pollutant loading and water quality standards.

24         (25)  "Wasteload allocation" means the portion of a

25  receiving water's loading capacity that is allocated to one of

26  its existing or future point sources of pollution.

27         Section 2.  Section 403.067, Florida Statutes, is

28  created to read:

29         403.067  Establishment and implementation of total

30  maximum loads.--

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    Florida Senate - 1999                                  SB 2282
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  1         (1)  In accordance with s. 303(d) of the Clean Water

  2  Act, Pub. L. No. 92-500, as amended by 33 U.S.C. ss. 1251 et

  3  seq., the department shall submit periodically to the United

  4  States Environmental Protection Agency a list of surface

  5  waters or segments that may need to be subjected to an

  6  assessment of whether a total maximum load calculation and

  7  allocation should be developed. The department shall establish

  8  a priority ranking and schedule for analyzing such waters.

  9         (a)  The list, priority ranking, and schedule shall be

10  used by the department solely as planning tools by which to

11  prioritize the preparation of basin assessments and the need

12  for a total maximum load calculation and allocation. The list,

13  priority ranking, and schedule have no regulatory significance

14  or consequence and cannot be relied upon by the department or

15  third parties in the administration or implementation of any

16  regulatory program.

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

18  under this subsection must be made available for public

19  comment, but are not subject to challenge under ss. 120.569

20  and 120.57, and may not be adopted by rule under s. 120.54.

21         (2)(a)  Based upon the priority ranking and schedule

22  for a particular listed water body or waterbody segment, the

23  department shall conduct a preliminary assessment of the basin

24  in which the water body or segment is located, using

25  methodology adopted by rule. In conducting this preliminary

26  assessment, the department shall coordinate with the local

27  water management district, the Department of Agriculture and

28  Consumer Services, soil and water conservation districts,

29  environmental groups, regulated interests, and other

30  interested parties.

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  1         (b)  The preliminary assessment methodology shall be

  2  adopted by rule. The rule must provide for reliance, to the

  3  greatest extent possible, on objective, quantitative, and

  4  credible existing data, studies and reports, including surface

  5  water improvement and management plans adopted by water

  6  management districts under s. 373.456 and pollutant load

  7  reduction goals developed according to department rule. The

  8  rule must also provide, as part of the preliminary assessment,

  9  that the department conduct specified supplemental water

10  quality sampling, including multiple samples that take into

11  account seasonal or other natural variations, collected and

12  analyzed in accordance with approved methodologies and quality

13  assurance/quality control protocols, monitoring, data

14  modeling, or other assessment measures specific to an

15  individual water body or waterbody segment.

16         (3)  When the department determines, based on the

17  preliminary basin assessment that water quality standards

18  cannot be achieved on account of ongoing discharges of

19  pollutants into the waters or segments from point or nonpoint

20  sources, and that technology-based effluent limitations and

21  other implemented pollution control programs under local,

22  state, or federal authority designed to restore the waters for

23  the pollutant of concern are not sufficient to result in

24  attainment of applicable surface water criteria pursuant to s.

25  303(d) of the Clean Water Act, Pub. L. No. 92-500, as amended

26  by 33 U.S.C. ss. 1251 et seq., it may confirm that

27  determination by adopting a list of those water bodies or

28  segments for which total maximum loads will be calculated.

29  This basin-specific list shall be adopted by order of the

30  department subject to challenge under ss. 120.569 and 120.57.

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  1         (4)  At any time throughout the total maximum load

  2  process, surface waters or segments evaluated or listed under

  3  this section must be removed from the list outlined in

  4  subsection (1) and the basin specific list upon demonstration

  5  that water quality criteria are being attained, based on an

  6  equivalent quantity and quality of data required by rule for

  7  the basin-specific list.

  8         (5)(a)  Before developing a total maximum load

  9  calculation for each water body or waterbody segment on the

10  basin-specific list, the department shall coordinate with

11  applicable local governments, water management districts, the

12  Department of Agriculture and Consumer Services, local soil

13  and water conservation districts, environmental groups,

14  regulated interests and affected pollution sources to

15  determine the information required, accepted methods of data

16  collection and analysis, and quality control/quality assurance

17  requirements. The analysis may include mathematical water

18  quality modeling using approved procedures and methods.

19         (b)  If a surface water or water segment is to be

20  subjected to a total maximum load calculation and allocation

21  based on narrative or biological criteria, the department must

22  specify the particular pollutants causing the impairment, the

23  level of the pollutants causing the impairment, and the

24  technical basis for these determinations. If the department

25  has promulgated a rule establishing a numerical criterion for

26  a particular pollutant, a narrative or biological criterion

27  may not be the basis for determining an impairment in

28  connection with that pollutant unless the department

29  identifies a specific reason as to why the numerical criterion

30  is not adequate. If water quality nonattainment is based on

31  narrative or biological criteria, but these factors concerning

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    Florida Senate - 1999                                  SB 2282
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  1  specific pollutants are not identified, then no total maximum

  2  load may be developed for those criteria for that surface

  3  water or water segment.

  4         (c)  If nonattainment of applicable criteria is caused

  5  by ambient background conditions, impaired surface waters

  6  entering Florida from Alabama or Georgia, previous but no

  7  longer existing discharges, or historical alterations to such

  8  waters or segments, these factors must be included in the

  9  total maximum load calculation, but must not be included in

10  allocations to affected Florida pollutant sources. The

11  allocations for these factors must be addressed in the basin

12  plans developed in subsection (6) through alternative

13  regulatory or nonregulatory measures in accordance with the

14  Clean Water Act, where specified.

15         (d)  The department shall develop a total maximum load

16  calculation for each water body or waterbody segment on the

17  basin-specific list. The contributions of both point source

18  and nonpoint source pollutant loads must be considered in

19  calculating the total maximum load. When the Environmental

20  Regulation Commission has approved under s. 403.804 a numeric

21  or narrative criterion for a particular pollutant, the

22  department, in accordance with paragraph (c), may apply the

23  criterion for a specific water body or waterbody segment by

24  establishing the pollutant's total maximum load. The total

25  maximum load may be a pollutant load reduction goal

26  established by a water management district and approved under

27  this subsection. The total maximum load calculation shall be

28  adopted by order of the department subject to challenge under

29  ss. 120.569 and 120.57.

30         (6)(a)  After the total maximum loads have been adopted

31  by order, the department shall establish through a basin plan

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    Florida Senate - 1999                                  SB 2282
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  1  or other similar plan a reasonable and equitable allocation of

  2  the maximum load among point and nonpoint sources that would

  3  alone, or in conjunction with other management and restoration

  4  activities, provide for the attainment of water quality

  5  standards. At a minimum, the allocation must take into account

  6  existing treatment levels and management practices, the

  7  differing impacts pollutant sources may have on water quality,

  8  the availability of treatment technologies and management

  9  practices, and reasonable timeframes for implementation.

10         (b)  The allocation must establish:

11         1.  The maximum amount of the pollutant from a given

12  source or category of sources that may be discharged or

13  released into the water body or waterbody segment in

14  combination with other discharges or releases; or

15         2.  The best available treatment technologies,

16  management practices, or other measures that are available to

17  be implemented by each pollutant source or category of

18  sources.

19         (c)  The department's analysis shall include

20  consideration of the potential applicability of any moderating

21  provisions available under the department's rules and this

22  chapter. This subsection may not be considered as limiting the

23  applicability or consideration of any mixing zone variance,

24  exemption, or other moderating provision.

25         (d)  The total maximum load allocation shall be adopted

26  by rule under s. 120.54.

27         (7)  The basin planning process is intended to involve

28  the broadest possible range of interested parties, with the

29  objective of encouraging the greatest amount of cooperation

30  and consensus possible. The department shall hold at least one

31  public meeting within the basin to discuss and receive

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  1  comments during the basin planning process and shall otherwise

  2  encourage public participation to the greatest practical

  3  extent.

  4         (8)  The department shall implement the basin plan and

  5  total maximum load through its water quality protection

  6  programs, including, but not limited to:

  7         (a)  Permitting and other regulatory programs;

  8         (b)  Nonregulatory and incentive-based programs,

  9  including best management practices, cost sharing, waste

10  minimization, pollution prevention, and public education;

11         (c)  Other water quality management and restoration

12  activities; and

13         (d)  Pollutant trading.

14         (9)(a)  Pollutant sources that are not subject to

15  permitting under this chapter or part IV of chapter 373 have

16  the opportunity to implement the total maximum load allocation

17  through nonregulatory and incentive-based programs, including

18  best management practices, or other preventive measures,

19  outlined in the basin plan developed under subsection (6).

20         (b)  The department, the water management districts,

21  and other interested parties, as appropriate, cooperatively

22  shall develop and adopt suitable best management practices or

23  other measures to be implemented by nonagricultural pollutant

24  sources and shall assist to the greatest extent possible with

25  the implementation of the specific practices and measures

26  outlined in the basin plan. The Department of Agriculture and

27  Consumer Services shall develop and adopt by rule suitable

28  interim measures, best management practices, or other measures

29  to be implemented by agricultural pollutant sources and shall

30  assist to the greatest extent possible with the implementation

31  of the specific practices and measures outlined in the basin

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  1  plan. In the process of approving and adopting interim

  2  measures, best management practices, or other measures, the

  3  Department of Agriculture and Consumer Services shall consult

  4  with the department, the Department of Health, the water

  5  management districts, representatives from affected farming

  6  groups, and environmental group representatives.

  7         (c)  Pollutant sources that are not subject to

  8  permitting under this chapter or part IV of chapter 373 and

  9  that implement the nonregulatory practices or other measures

10  outlined in the basin plan as designed and according to the

11  schedule in the plan are not required to obtain a permit or

12  other regulatory authorization to conduct these activities.

13         (10)  The department may adopt other rules necessary to

14  administer this section pertaining to:

15         (a)  Delisting water bodies or waterbody segments from

16  the basin-specific list;

17         (b)  Administration of funds to implement the total

18  maximum load program; and

19         (c)  Procedures for pollutant trading among the

20  pollutant sources of a water body or waterbody segment,

21  including a mechanism for the issuance and tracking of

22  pollutant credits. The procedures may be implemented through

23  permits or other authorizations and must be legally binding.

24         (11)  This section does not alter any applicable state

25  water quality standards or restrict the authority otherwise

26  granted to the department or a water management district under

27  this chapter or part IV of chapter 373.

28         (12)  The department shall not accept or implement any

29  additional federally delegated or authorized regulatory

30  program related to total maximum loads without prior specific

31  legislative approval.

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  1         Section 3.  The Department of Environmental Protection,

  2  coordinating with the water management districts, soil and

  3  water conservation districts, and the Department of

  4  Agriculture and Consumer Services shall evaluate the

  5  effectiveness or the implementation of total maximum loads for

  6  a period of 5 years from the effective date of this act. The

  7  department shall document that effectiveness, using all data

  8  and information at its disposal, in a report to the Governor,

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

10  Representatives by January 1, 2005. The report must provide

11  specific recommendations for statutory changes necessary to

12  implement total maximum loads more effectively, including the

13  development or expansion of pollution prevention and pollutant

14  trading opportunities, and best management practices. The

15  report must also provide recommendations for statutory changes

16  relating to pollutant sources that are not subject to

17  permitting under chapter 403, Florida Statutes, or part IV of

18  chapter 373, Florida Statutes and that do not implement the

19  nonregulatory practices or other measures outlined in the

20  basin plan in accordance with the schedule of the plan, or

21  fail to implement them as designed. Any additional regulatory

22  authority proposed in the report may not apply to any

23  pollutant source that properly implements the nonregulatory

24  practices or other measures outlined in a basin plan.

25         Section 4.  This act shall take effect upon becoming a

26  law.

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  2                          SENATE SUMMARY

  3    Authorizes the Department of Environmental Protection to
      adopt a process of listing surface waters not meeting
  4    water quality standards. Authorizes the department to
      establish, allocate, and implement total maximum loads
  5    applicable to the listed waters. Sets standards and
      prescribes procedural requirements. Requires an
  6    evaluation and a report.

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