Senate Bill 2282c1

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1999                           CS for SB 2282

    By the Committee on Natural Resources and Senator Laurent





    312-1860A-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 term "total maximum daily load";

  5         creating s. 403.067, F.S.; providing

  6         legislative findings and intent; requiring the

  7         Department of Environmental Protection to

  8         periodically submit to the United States

  9         Environmental Protection Agency a list of

10         surface waters or segments for which total

11         maximum daily load assessments will be

12         conducted; providing that the list cannot be

13         used in the administration or implementation of

14         any regulatory program; providing for public

15         comment on the list; requiring the Department

16         of Environmental Protection to conduct total

17         maximum daily load assessments on water bodies

18         based on the priority ranking and schedule;

19         requiring the Department of Environmental

20         Protection to adopt a methodology for

21         determining those water bodies which are

22         impaired by rule; specifying what the rule

23         shall set forth; providing for the adoption of

24         a second list of water bodies for which total

25         maximum daily loads will be calculated under

26         certain circumstances; providing for the

27         removal of surface waters or segments under

28         certain conditions; providing for the process

29         for calculating and allocating total maximum

30         daily loads; providing that the Department of

31         Environmental Protection must submit a report

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1         by February 1, 2000, to the Governor, the

  2         President of the Senate, and the Speaker of the

  3         House of Representatives which contains

  4         recommendations and draft legislation for any

  5         modifications to the process for allocating

  6         total maximum daily loads; requiring that the

  7         recommendations be developed by the department

  8         in cooperation with a technical committee;

  9         providing that the total maximum daily load

10         calculations and allocations shall be adopted

11         by rule; providing for public workshops and

12         public notice; providing that the Department of

13         Environmental Protection shall be the lead

14         agency in coordinating and implementing the

15         total maximum daily load allocation through

16         water quality protection programs; authorizing

17         the department to develop a basin plan;

18         providing for public workshops and public

19         notice regarding the basin plan; providing that

20         certain pollutant sources shall have the

21         opportunity to implement the total maximum

22         daily load through nonregulatory and

23         incentive-based programs; requiring the

24         department, the water management districts, and

25         others to cooperatively develop suitable

26         interim measures, best management practices, or

27         other measures necessary to achieve the

28         pollution-reduction targets for nonagricultural

29         nonpoint pollutant sources; requiring the

30         Department of Agriculture and Consumer Services

31         to develop, and to adopt by rule at its

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1         discretion, certain interim measures or best

  2         management practices; authorizing the

  3         Department of Environmental Protection to adopt

  4         certain rules; prohibiting the Department of

  5         Environmental Protection from implementing,

  6         without prior legislative approval, any

  7         additional regulatory authority pursuant to the

  8         Clean Water Act; requiring the Department of

  9         Environmental Protection, in coordination with

10         the water management district and the

11         Department of Agriculture and Consumer

12         Services, to evaluate the effectiveness of the

13         implementation of total maximum daily loads for

14         a specific period and to report to the Governor

15         and the Legislature; providing an effective

16         date.

17

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

19

20         Section 1.  Subsection (21) is added to section

21  403.031, Florida Statutes, to read:

22         403.031  Definitions.--In construing this chapter, or

23  rules and regulations adopted pursuant hereto, the following

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

25  indicates, have the following meanings:

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

27  of the individual wasteload allocations for point sources and

28  the load allocations for nonpoint sources and natural

29  background. Prior to determining individual wasteload

30  allocations and load allocations, the maximum amount of a

31  pollutant that a water body or water segment can assimilate

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  from all sources without exceeding water quality standards

  2  must first be calculated.

  3         Section 2.  Section 403.067, Florida Statutes, is

  4  created to read:

  5         403.067  Establishment and implementation of total

  6  maximum loads.--

  7         (1)  In furtherance of public policy established in s.

  8  403.021, the Legislature declares that the waters of the state

  9  are among its most basic resources and that the development of

10  a total maximum daily load program for state waters as

11  required by ss. 303(d) of the Clean Water Act, Pub. L. No.

12  92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements

13  in water quality throughout the state through the coordinated

14  control of point and nonpoint source pollution.  The

15  Legislature finds that, while point and nonpoint sources of

16  pollution have been managed through numerous programs, better

17  coordination among these efforts and additional management

18  measures may be needed in order to achieve improvements in

19  water quality and restoration of impaired water bodies.  The

20  scientifically based total maximum daily load program is

21  necessary to fairly and equitably allocate pollution loads to

22  both nonpoint and point sources.  Implementation of the

23  allocation shall include consideration of a cost-effective

24  approach coordinated between contributing point and nonpoint

25  sources of pollution for a given water body or water body

26  segment. The Legislature further declares that the Department

27  of Environmental Protection shall be the lead agency in

28  administering and coordinating the implementation of this

29  program and shall coordinate with local governments, water

30  management districts, the Department of Agriculture and

31  Consumer Services, local soil and water conservation

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  districts, environmental groups, regulated interests, other

  2  appropriate state agencies, and affected pollution sources in

  3  developing and executing the total maximum daily load program.

  4         (2)  In accordance with s. 303(d) of the Clean Water

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

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

  7  States Environmental Protection Agency a list of surface

  8  waters or segments for which total maximum daily load

  9  assessments will be conducted. The assessments shall shall

10  evaluate the water quality conditions of the listed waters,

11  and, if such waters are determined not to meet water quality

12  standards, total maximum daily loads shall be established,

13  subject to the provisions of subsection (4). The department

14  shall establish a priority ranking and schedule for analyzing

15  such waters.

16         (a)  The list, priority ranking, and schedule shall not

17  be used in the administration or implementation of any

18  regulatory program. However, this paragraph does not prohibit

19  the department from employing the data or other information

20  used to establish the list, priority ranking, or schedule in

21  administering any program.

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

23  under this subsection must be made available for public

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

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

26         (3)(a)  Based upon the priority ranking and schedule

27  for a particular listed water body or water segment, the

28  department shall conduct a total maximum daily load assessment

29  of the basin in which the water body or segment is located,

30  using methodology developed pursuant to paragraph (b). In

31  conducting this assessment, the department shall coordinate

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  with the local water management district, the Department of

  2  Agriculture and Consumer Services, other appropriate state

  3  agencies, soil and water conservation districts, environmental

  4  groups, regulated interests, and other interested parties.

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

  6  for determining those waters that are impaired. The rule shall

  7  provide for consideration as to whether water quality

  8  standards codified in Chapter 62-302, Florida Administrative

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

10  data, studies, and reports, including surfacewater improvement

11  and management plans approved by water management districts

12  under s. 373.456 and pollutant-load-reduction goals developed

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

14         1.  Water quality sample collection and analysis

15  requirements, accounting for ambient background conditions and

16  seasonal and other natural variations;

17         2.  Approved methodologies;

18         3.  Quality assurance and quality control protocols;

19         4.  Data modeling; and

20         5.  Other appropriate water quality assessment

21  measures.

22         (4)  If the department determines, based on the total

23  maximum daily load assessment methodology described in

24  subsection (3), that water quality standards are not being

25  achieved and that technology-based effluent limitations and

26  other pollution control programs under local, state, or

27  federal authority, including Everglades restoration activities

28  pursuant to s. 373.4592, which are designed to restore such

29  waters from the pollutant of concern, are not sufficient to

30  result in attainment of applicable surfacewater quality

31  standards, it shall confirm that determination by adopting a

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  second list of those water bodies or segments for which total

  2  maximum daily loads will be calculated.  In association with

  3  this list, the department shall establish priority rankings

  4  and schedules by which water bodies or segments will be

  5  subjected to total maximum daily load calculations.  If a

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

  7  subsection, the department must specify the particular

  8  pollutants causing the impairment and the concentration of

  9  those pollutants causing the impairment relative to the water

10  quality standard.  If the department has adopted a rule

11  establishing a numerical criterion for a particular pollutant,

12  a narrative or biological criterion may not be the basis for

13  determining an impairment in connection with that pollutant

14  unless the department identifies specific factors as to why

15  the numerical criterion is not adequate to protect water

16  quality.  If water quality non-attainment is based on

17  narrative or biological criteria, the factors concerning

18  specific pollutants shall be identified prior to a total

19  maximum daily load being developed for those criteria for that

20  surface water or water segment.  This second list shall be

21  adopted and amended by order of the department subsequent to

22  completion of each basin assessment and submitted to the

23  United States Environmental Protection Agency.  These orders

24  shall be subject to challenge under ss. 120.569 and 120.57.

25         (5)  At any time throughout the total maximum daily

26  load process, surface waters or segments evaluated or listed

27  under this section shall be removed from the lists described

28  in subsection (2) or subsection (4) upon demonstration that

29  water quality criteria are being attained, based on an

30  equivalent quantity and quality of data required by rule under

31  subsection (3).

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1         (6)(a)  Calculation of total maximum daily load.

  2         1.  Prior to developing a total maximum daily load

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

  4  list specified in subsection (4), the department shall

  5  coordinate with applicable local governments, water management

  6  districts, the Department of Agriculture and Consumer

  7  Services, other appropriate state agencies, local soil and

  8  water conservation districts, environmental groups, regulated

  9  interests, and affected pollution sources to determine the

10  information required, accepted methods of data collection and

11  analysis, and quality control/quality assurance

12  requirements.  The analysis may include mathematical water

13  quality modeling using approved procedures and methods.

14         2.  The department shall develop total maximum daily

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

16  the list described in subsection (4) according to the priority

17  ranking and schedule unless the impairment of such waters is

18  solely due to activities other than point and nonpoint sources

19  of pollution. For waters determined to be impaired due to

20  factors other than point and nonpoint sources of pollution, no

21  total maximum daily load will be required.  The total maximum

22  daily load calculation shall establish the amount of a

23  pollutant that a water body or water body segment can

24  assimilate without exceeding water quality standards, and

25  shall account for seasonal variations and include a margin of

26  safety that takes into account any lack of knowledge

27  concerning the relationship between effluent limitations and

28  water quality.  The total maximum daily load may be based on a

29  pollutant-load-reduction goal established by a water

30  management district and approved under this subsection.

31

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  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 which 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 assure the attainment of water quality

13  standards and shall be based upon the following:

14         1.  Existing treatment levels and management practices;

15         2.  Differing impacts that pollutant sources may have

16  on water quality;

17         3.  The availability of treatment technologies,

18  management practices, or other pollutant reduction measures;

19         4.  Environmental, economic, and technological

20  feasibility of achieving the allocation;

21         5.  The cost benefit associated with achieving the

22  allocation;

23         6.  Reasonable time frames for implementation;

24         7.  Potential applicability of any moderating

25  provisions;

26         8.  The extent to which nonattainment of water quality

27  standards is caused by pollution sources outside Florida, by

28  discharges that have ceased, or by alterations to water bodies

29  prior to the effective date of this act.

30         (c)  Not later than February 1, 2000, the department

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

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  Senate, and the Speaker of the House of Representatives

  2  containing recommendations, including draft legislation, for

  3  any modifications to the process for allocating total maximum

  4  daily loads. Such recommendations shall be developed by the

  5  department in cooperation with a technical advisory committee

  6  that includes representatives of affected parties,

  7  environmental organizations, water management districts, and

  8  other appropriate local, state, and federal government

  9  agencies. The technical advisory committee shall also include

10  such members as may be designated by the President of the

11  Senate and the Speaker of the House of Representatives.

12         (d)  The total maximum daily load calculations and

13  allocations for each water body or water body segment on the

14  list shall be adopted by rule pursuant to ss. 120.54 and

15  120.536(1). As part of the rule development process, the

16  department shall hold at least one public workshop. Notice of

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

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

19  developed shall be published not less than 5 days nor more

20  than 15 days before the public workshop in a newspaper of

21  general circulation in the county or counties where the water

22  bodies or water body segments for which the total maximum

23  daily load calculation and allocation are being developed.

24         (7)  Implementation of total maximum daily loads.

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

26  coordinating the implementation of the total maximum daily

27  load allocation through water quality protection programs.

28  Such programs may include, but are not limited to:

29         1.  Permitting and other existing regulatory programs;

30

31

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1         2.  Nonregulatory and incentive-based programs,

  2  including best management practices, cost sharing, waste

  3  minimization, pollution prevention, and public education;

  4         3.  Other water quality management and restoration

  5  activities such as surfacewater improvement and management

  6  plans approved by water management districts under s. 373.456;

  7         4.  Pollutant trading or other equitable economically

  8  based agreements;

  9         5.  Public works including capital facilities; or

10         6.  Land acquisition.

11         (b)  In coordinating and implementing the total maximum

12  daily load allocation, the department may develop a basin

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

14  management strategies available to the state for the purpose

15  of achieving water quality restoration. The basin planning

16  process is intended to involve the broadest possible range of

17  interested parties, with the objective of encouraging the

18  greatest amount of cooperation and consensus possible. The

19  department shall hold at least one public meeting in the

20  vicinity of the basin to discuss and receive comments during

21  the basin planning process and shall otherwise encourage

22  public participation to the greatest practicable extent.

23  Notice of the public meeting shall be published in a newspaper

24  of general circulation in each county in which the basin lies,

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

26  meeting.

27         (c)  Pollutant sources that are not subject to

28  permitting under this chapter or chapter 373 shall have the

29  opportunity to implement the total maximum daily load through

30  nonregulatory and incentive-based programs, including best

31  management practices or other preventive measures.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1         (d)  The department in cooperation with the water

  2  management district and other interested parties, as

  3  appropriate, shall develop suitable interim measures, best

  4  management practices, or other measures necessary to achieve

  5  the pollution reduction targets established by the department

  6  for nonagricultural nonpoint pollutant sources in allocations

  7  developed pursuant to paragraph (6)(b). These practices and

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

  9  water management districts and may be implemented by those

10  parties responsible for nonagricultural nonpoint pollutant

11  sources pursuant to paragraph (7)(c), and the department and

12  the water management districts shall assist with

13  implementation. Implementation of these practices in

14  accordance with applicable rules shall provide a presumption

15  of compliance with state water quality standards and release

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

17  addressed by the practices, and the department is not

18  authorized to institute proceedings against the owner of the

19  source of pollution to recover costs or damages associated

20  with the contamination of surface or ground water caused by

21  those pollutants. Such rules shall also incorporate provisions

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

23  to assure the implementation of the practices, including

24  recordkeeping requirements. Where water quality problems are

25  detected despite the appropriate implementation of best

26  management practices and other measures according to rules

27  adopted under this paragraph, the department or the water

28  management districts shall institute a reevaluation of the

29  best management practice or other measures.

30         (e)  The Department of Agriculture and Consumer

31  Services shall develop and may adopt by rule suitable interim

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  measures, best management practices, or other measures

  2  necessary to achieve the pollution reduction targets

  3  established by the department for agricultural pollutant

  4  sources in allocations developed pursuant to paragraph (6)(b).

  5  These practices and measures may be implemented by those

  6  parties responsible for agricultural pollutant sources

  7  pursuant to paragraph (7)(c), and the department, the water

  8  management districts, and the Department of Agriculture and

  9  Consumer Services shall assist with implementation. Where

10  interim measures, best management practices, or other measures

11  are adopted by rule, the effectiveness of such practices shall

12  be verified by the department. Implementation of these

13  practices in accordance with applicable rules shall provide a

14  presumption of compliance with state water quality standards

15  and release from the provisions of s. 376.307(5) for those

16  pollutants addressed by the practices, and the department is

17  not authorized to institute proceedings against the owner of

18  the source of pollution to recover costs or damages associated

19  with the contamination of surface or ground water caused by

20  those pollutants. In the process of developing and adopting

21  rules for interim measures, best management practices, or

22  other measures, the Department of Agriculture and Consumer

23  Services shall consult with the department, the Department of

24  Health, the water management districts, representatives from

25  affected farming groups, and environmental group

26  representatives. Such rules shall also incorporate provisions

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

28  to assure the implementation of the practices, including

29  recordkeeping requirements. Where water quality problems are

30  detected despite the appropriate implementation of best

31  management practices and other measures according to rules

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  adopted under this paragraph, the Department of Agriculture

  2  and Consumer Services shall institute a reevaluation of the

  3  best management practice or other measure.

  4         (8)  The department is authorized to adopt rules

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

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

  7  the list developed under subsection (4) pursuant to the

  8  guidance under subsection (5);

  9         (b)  Administration of funds to implement the total

10  maximum daily load program; and

11         (c)  Procedures for pollutant trading among the

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

13  including a mechanism for the issuance and tracking of

14  pollutant credits. Such procedures may be implemented through

15  permits or other authorizations and must be legally binding.

16  No rule implementing a pollutant trading program shall become

17  effective prior to review and ratification by the Legislature.

18         (9)  Nothing in this section shall be construed as

19  altering any applicable state water quality standards or as

20  restricting the authority otherwise granted to the department

21  or a water management district under this chapter or chapter

22  373.

23         (10)  Nothing in this section shall be construed as

24  limiting the applicability or consideration of any mixing

25  zone, variance, exemption, site-specific alternative criteria,

26  or other moderating provision.

27         (11)  The department shall not implement, without prior

28  legislative approval, any additional regulatory authority

29  pursuant to the Clean Water Act, ss. 303(d), or 40 C.F.R. Part

30  130, if such implementation would result in water quality

31

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1  discharge regulation of activities not currently subject to

  2  regulation.

  3         Section 3.  The Department of Environmental Protection,

  4  coordinating with the water management districts and the

  5  Department of Agriculture and Consumer Services, shall

  6  evaluate the effectiveness of the implementation of total

  7  maximum daily loads for a period of 5 years from the effective

  8  date of this act. The department shall document that

  9  effectiveness, using all data and information at its disposal,

10  in a report to the Governor, the President of the Senate, and

11  the Speaker of the House of Representatives by January 1,

12  2005. The report must provide specific recommendations for

13  statutory changes necessary to implement total maximum daily

14  loads more effectively, including the development or expansion

15  of pollution prevention and pollutant trading opportunities

16  and best management practices. The report must also provide

17  recommendations for statutory changes relating to pollutant

18  sources that are not subject to permitting under chapter 403,

19  Florida Statutes, or chapter 373, Florida Statutes, and that

20  do not implement the nonregulatory practices or other measures

21  outlined in the basin plan prepared under section 403.067,

22  Florida Statutes, in accordance with the schedule of the plan,

23  or that fail to implement them as designed.

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

25  law.

26

27

28

29

30

31

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                           CS for SB 2282
    312-1860A-99




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 2282

  3

  4  The committee substitute rewrites the bill to provide the
    following:
  5
    --    Technical and clarifying amendments.
  6
    --    Legislative findings and intent.
  7
    --    Defines the term "total maximum daily load."
  8
    --    Requires the Department of Environmental Protection
  9        (DEP) to periodically submit to the U.S. Environmental
          Protection Agency a list of surface waters or segments
10        for which total maximum daily load assessments will be
          conducted and prohibits that list from being used in the
11        administration and implementation of any regulator
          program. Provides for public comment on the list.
12
    --    Requires the DEP to conduct total maximum daily load
13        (TMDL) assessments on water bodies based on the priority
          ranking and schedule. Requires the DEP to adopt a
14        methodology for determining impaired water bodies by
          rule.
15
    --    Provides for the preparation of a second list under
16        certain circumstances.

17  --    Provides that the DEP must submit a report to the
          Governor and the Legislature by February 1, 2000, which
18        contains recommendations for modifications to the
          process of allocating TMDLs. Provides for a public
19        workshop and public notice.

20  --    Provides for the development of interim measures, best
          management practices and other measures necessary to
21        achieve the pollution reduction targets for non
          agricultural nonpoint sources.
22
    --    Requires the Department of Agriculture and Consumer
23        Services to develop interim measures or best management
          practices for agriculture pollutant sources.
24
    --    Prohibits the DEP from implementing, without prior
25        legislative approval, any additional regulatory
          authority pursuant to the Clean Water Act.
26
    --    Requires the DEP, in coordination with the Department of
27        Agriculture and Consumer Services and the water
          management districts, to evaluate the effectiveness of
28        the implementation of TMDLs for a periof of 5 years and
          to report to the Governor and the Legislature by January
29        1, 2005.

30

31

                                  16