| 1 | The State Resources Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to total maximum daily loads; amending s. |
| 7 | 403.067, F.S.; providing for the attainment of pollutant |
| 8 | reductions for the restoration of impaired waters; |
| 9 | revising provisions for the allocation of allowable |
| 10 | pollutant loads; deleting an obsolete reporting |
| 11 | requirement; authorizing the Department of Environmental |
| 12 | Protection to adopt phased total maximum daily loads for |
| 13 | specific purposes; providing for the development of basin |
| 14 | management action plans; revising provisions for the |
| 15 | implementation of total maximum daily loads; revising |
| 16 | provisions relating to best management practices; |
| 17 | authorizing the department to adopt rules for the |
| 18 | permitting of basin management action plans; requiring the |
| 19 | department to submit a report to the Governor, the |
| 20 | President of the Senate, and the Speaker of the House of |
| 21 | Representatives prior to adopting rules for pollutant |
| 22 | trading; amending ss. 373.4595 and 570.085, F.S.; |
| 23 | correcting cross references; providing an effective date. |
| 24 |
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| 25 | Be It Enacted by the Legislature of the State of Florida: |
| 26 |
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| 27 | Section 1. Paragraph (d) of subsection (2) and subsections |
| 28 | (6), (7), (8), and (11) of section 403.067, Florida Statutes, |
| 29 | are amended to read: |
| 30 | 403.067 Establishment and implementation of total maximum |
| 31 | daily loads.-- |
| 32 | (2) LIST OF SURFACE WATERS OR SEGMENTS.--In accordance |
| 33 | with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 |
| 34 | U.S.C. ss. 1251 et seq., the department must submit periodically |
| 35 | to the United States Environmental Protection Agency a list of |
| 36 | surface waters or segments for which total maximum daily load |
| 37 | assessments will be conducted. The assessments shall evaluate |
| 38 | the water quality conditions of the listed waters and, if such |
| 39 | waters are determined not to meet water quality standards, total |
| 40 | maximum daily loads shall be established, subject to the |
| 41 | provisions of subsection (4). The department shall establish a |
| 42 | priority ranking and schedule for analyzing such waters. |
| 43 | (d) If the department proposes to implement total maximum |
| 44 | daily load calculations or allocations established prior to the |
| 45 | effective date of this act, the department shall adopt those |
| 46 | calculations and allocations by rule by the secretary pursuant |
| 47 | to ss. 120.536(1) and 120.54 and paragraph (6)(c)(d). |
| 48 | (6) CALCULATION AND ALLOCATION.-- |
| 49 | (a) Calculation of total maximum daily load.-- |
| 50 | 1. Prior to developing a total maximum daily load |
| 51 | calculation for each water body or water body segment on the |
| 52 | list specified in subsection (4), the department shall |
| 53 | coordinate with applicable local governments, water management |
| 54 | districts, the Department of Agriculture and Consumer Services, |
| 55 | other appropriate state agencies, local soil and water |
| 56 | conservation districts, environmental groups, regulated |
| 57 | interests, and affected pollution sources to determine the |
| 58 | information required, accepted methods of data collection and |
| 59 | analysis, and quality control/quality assurance requirements. |
| 60 | The analysis may include mathematical water quality modeling |
| 61 | using approved procedures and methods. |
| 62 | 2. The department shall develop total maximum daily load |
| 63 | calculations for each water body or water body segment on the |
| 64 | list described in subsection (4) according to the priority |
| 65 | ranking and schedule unless the impairment of such waters is due |
| 66 | solely to activities other than point and nonpoint sources of |
| 67 | pollution. For waters determined to be impaired due solely to |
| 68 | factors other than point and nonpoint sources of pollution, no |
| 69 | total maximum daily load will be required. A total maximum daily |
| 70 | load may be required for those waters that are impaired |
| 71 | predominantly due to activities other than point and nonpoint |
| 72 | sources. The total maximum daily load calculation shall |
| 73 | establish the amount of a pollutant that a water body or water |
| 74 | body segment may receive from all sources without exceeding |
| 75 | water quality standards, and shall account for seasonal |
| 76 | variations and include a margin of safety that takes into |
| 77 | account any lack of knowledge concerning the relationship |
| 78 | between effluent limitations and water quality. The total |
| 79 | maximum daily load may be based on a pollutant load reduction |
| 80 | goal developed by a water management district, provided that |
| 81 | such pollutant load reduction goal is promulgated by the |
| 82 | department in accordance with the procedural and substantive |
| 83 | requirements of this subsection. |
| 84 | (b) Allocation of total maximum daily loads.--The total |
| 85 | maximum daily loads shall include establishment of reasonable |
| 86 | and equitable allocations of the total maximum daily load |
| 87 | between or among point and nonpoint sources that will alone, or |
| 88 | in conjunction with other management and restoration activities, |
| 89 | provide for the attainment of the pollutant reductions |
| 90 | established pursuant to paragraph (a) to achieve water quality |
| 91 | standards for the pollutant causing impairment and the |
| 92 | restoration of impaired waters. The allocations may establish |
| 93 | the maximum amount of the water pollutant from a given source or |
| 94 | category of sources that may be discharged or released into the |
| 95 | water body or water body segment in combination with other |
| 96 | discharges or releases. Allocations may also be made to |
| 97 | individual basins and sources or as a whole to all basins and |
| 98 | sources or categories of sources of inflow to the water body or |
| 99 | water body segments. An initial allocation of allowable |
| 100 | pollutant loads among point and nonpoint sources may be |
| 101 | developed as part of the total maximum daily load. However, in |
| 102 | such cases, the detailed allocation to specific point sources |
| 103 | and specific categories of nonpoint sources shall be established |
| 104 | in the basin management action plan pursuant to subsection (7). |
| 105 | The initial and detailed allocations shall be designed to attain |
| 106 | the pollutant reductions established pursuant to paragraph (a) |
| 107 | water quality standards and shall be based on consideration of |
| 108 | the following: |
| 109 | 1. Existing treatment levels and management practices; |
| 110 | 2. Best management practices established and implemented |
| 111 | pursuant to paragraph (7)(c); |
| 112 | 3. Enforceable treatment levels established pursuant to |
| 113 | state or local law or permit; |
| 114 | 4.2. Differing impacts pollutant sources and forms of |
| 115 | pollutants may have on water quality; |
| 116 | 5.3. The availability of treatment technologies, |
| 117 | management practices, or other pollutant reduction measures; |
| 118 | 6.4. Environmental, economic, and technological |
| 119 | feasibility of achieving the allocation; |
| 120 | 7.5. The cost benefit associated with achieving the |
| 121 | allocation; |
| 122 | 8.6. Reasonable timeframes for implementation; |
| 123 | 9.7. Potential applicability of any moderating provisions |
| 124 | such as variances, exemptions, and mixing zones; and |
| 125 | 10.8. The extent to which nonattainment of water quality |
| 126 | standards is caused by pollution sources outside of Florida, |
| 127 | discharges that have ceased, or alterations to water bodies |
| 128 | prior to the date of this act. |
| 129 | (c) Not later than February 1, 2001, the department shall |
| 130 | submit a report to the Governor, the President of the Senate, |
| 131 | and the Speaker of the House of Representatives containing |
| 132 | recommendations, including draft legislation, for any |
| 133 | modifications to the process for allocating total maximum daily |
| 134 | loads, including the relationship between allocations and the |
| 135 | watershed or basin management planning process. Such |
| 136 | recommendations shall be developed by the department in |
| 137 | cooperation with a technical advisory committee which includes |
| 138 | representatives of affected parties, environmental |
| 139 | organizations, water management districts, and other appropriate |
| 140 | local, state, and federal government agencies. The technical |
| 141 | advisory committee shall also include such members as may be |
| 142 | designated by the President of the Senate and the Speaker of the |
| 143 | House of Representatives. |
| 144 | (c)(d) Adoption of rules.--The total maximum daily load |
| 145 | calculations and allocations established under this subsection |
| 146 | for each water body or water body segment shall be adopted by |
| 147 | rule by the secretary pursuant to ss. 120.536(1), 120.54, and |
| 148 | 403.805. Where additional data collection and analysis are |
| 149 | needed to increase the scientific precision and accuracy of the |
| 150 | total maximum daily load, the department is authorized to adopt |
| 151 | phased total maximum daily loads that are subject to change as |
| 152 | additional data become available. Where phased total maximum |
| 153 | daily loads are proposed, the department shall, in the detailed |
| 154 | statement of facts and circumstances justifying the rule, |
| 155 | explain why the data are inadequate so as to justify a phased |
| 156 | total maximum daily load. The rules adopted pursuant to this |
| 157 | paragraph shall not be subject to approval by the Environmental |
| 158 | Regulation Commission. As part of the rule development process, |
| 159 | the department shall hold at least one public workshop in the |
| 160 | vicinity of the water body or water body segment for which the |
| 161 | total maximum daily load is being developed. Notice of the |
| 162 | public workshop shall be published not less than 5 days nor more |
| 163 | than 15 days before the public workshop in a newspaper of |
| 164 | general circulation in the county or counties containing the |
| 165 | water bodies or water body segments for which the total maximum |
| 166 | daily load calculation and allocation are being developed. |
| 167 | (7) DEVELOPMENT OF BASIN MANAGEMENT ACTION PLANS; |
| 168 | IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.-- |
| 169 | (a) Basin management action plans.-- |
| 170 | 1. In developing and implementing the total maximum daily |
| 171 | load for a water body, the department, or the department in |
| 172 | conjunction with a water management district, may develop a |
| 173 | basin management action plan that addresses some or all of the |
| 174 | watersheds and basins tributary to the water body. Such a plan |
| 175 | shall integrate the appropriate management strategies available |
| 176 | to the state through existing water quality protection programs |
| 177 | to achieve the total maximum daily load and may provide for |
| 178 | phased implementation of these management strategies to promote |
| 179 | timely, cost-effective actions as provided for in s. 403.151. |
| 180 | The plan shall establish a schedule for implementing the |
| 181 | management strategies, establish a basis for evaluating the |
| 182 | plan's effectiveness, and identify feasible funding strategies |
| 183 | to implement the plan's management strategies. The management |
| 184 | strategies may include regional treatment systems or other |
| 185 | public works, where appropriate, to achieve the needed pollutant |
| 186 | load reductions. |
| 187 | 2. A basin management action plan shall, pursuant to |
| 188 | paragraph (6)(b), equitably allocate pollutant reductions to |
| 189 | individual basins, as a whole to all basins, or to each |
| 190 | identified point source or category of nonpoint sources, as |
| 191 | appropriate. For nonpoint sources for which best management |
| 192 | practices have been adopted, the initial requirement specified |
| 193 | by the plan shall be those practices developed pursuant to |
| 194 | paragraph (c). Where appropriate, the plan may provide pollutant |
| 195 | load reduction credit to those dischargers that have implemented |
| 196 | management strategies to reduce pollutant loads, including best |
| 197 | management practices, prior to the development of the basin |
| 198 | management action plan. The plan also shall identify the |
| 199 | mechanisms by which potential future increases in pollutant |
| 200 | loading will be addressed. |
| 201 | 3. The basin management action planning process is |
| 202 | intended to involve the broadest possible range of interested |
| 203 | parties, with the objective of encouraging the greatest amount |
| 204 | of cooperation and consensus possible. In developing a basin |
| 205 | management action plan, the department shall ensure that key |
| 206 | stakeholders, including, but not limited to, applicable local |
| 207 | governments, water management districts, the Department of |
| 208 | Agriculture and Consumer Services, other appropriate state |
| 209 | agencies, local soil and water conservation districts, |
| 210 | environmental groups, regulated interests, and affected |
| 211 | pollution sources, are invited to participate in the process. |
| 212 | The department shall hold at least one public meeting in the |
| 213 | vicinity of the watershed or basin to discuss and receive |
| 214 | comments during the planning process and shall otherwise |
| 215 | encourage public participation to the greatest practical extent. |
| 216 | Notice of the public meeting shall be published in a newspaper |
| 217 | of general circulation in each county in which the watershed or |
| 218 | basin lies not fewer than 5 days nor more than 15 days before |
| 219 | the public meeting. A basin management action plan shall not |
| 220 | supplant or otherwise alter any assessment made under subsection |
| 221 | (3) or subsection (4), or any calculation or initial allocation. |
| 222 | 4. The department shall adopt all or any part of a basin |
| 223 | management action plan by secretarial order pursuant to chapter |
| 224 | 120 to implement the provisions of this section. |
| 225 | 5. A basin management action plan shall include milestones |
| 226 | for implementation and water quality improvement and an |
| 227 | associated water quality monitoring component sufficient to |
| 228 | evaluate whether reasonable progress in pollutant load |
| 229 | reductions is being achieved over time. An assessment of |
| 230 | progress toward these milestones shall be conducted every 5 |
| 231 | years, and revisions to the plan shall be made as appropriate. |
| 232 | Revisions to the basin management action plan shall be made by |
| 233 | the department in cooperation with basin stakeholders. Revisions |
| 234 | to the management strategies required for nonpoint sources shall |
| 235 | follow the procedures set forth in subparagraph (c)4. Revised |
| 236 | basin management action plans shall be adopted pursuant to |
| 237 | subparagraph 4. |
| 238 | (b) Total maximum daily load implementation.-- |
| 239 | 1.(a) The department shall be the lead agency in |
| 240 | coordinating the implementation of the total maximum daily loads |
| 241 | through existing water quality protection programs. Application |
| 242 | of a total maximum daily load by a water management district |
| 243 | shall be consistent with this section and shall not require the |
| 244 | issuance of an order or a separate action pursuant to s. |
| 245 | 120.536(1) or s. 120.54 for adoption of the calculation and |
| 246 | allocation previously established by the department. Such |
| 247 | programs may include, but are not limited to: |
| 248 | a.1. Permitting and other existing regulatory programs, |
| 249 | including water-quality-based effluent limitations; |
| 250 | b.2. Nonregulatory and incentive-based programs, including |
| 251 | best management practices, cost sharing, waste minimization, |
| 252 | pollution prevention, agreements established pursuant to s. |
| 253 | 403.061(21), and public education; |
| 254 | c.3. Other water quality management and restoration |
| 255 | activities, for example surface water improvement and management |
| 256 | plans approved by water management districts or watershed or |
| 257 | basin management action plans developed pursuant to this |
| 258 | subsection; |
| 259 | d.4. Pollutant trading or other equitable economically |
| 260 | based agreements; |
| 261 | e.5. Public works including capital facilities; or |
| 262 | f.6. Land acquisition. |
| 263 | 2. For a basin management action plan adopted pursuant to |
| 264 | subparagraph (a)4., any management strategies and pollutant |
| 265 | reduction requirements associated with a pollutant of concern |
| 266 | for which a total maximum daily load was developed, including |
| 267 | effluent limits set forth for a discharger subject to NPDES |
| 268 | permitting, if any, shall be included in subsequent NPDES |
| 269 | permits or permit modifications for that discharger in a timely |
| 270 | manner. The department shall not impose limits or conditions |
| 271 | implementing an adopted total maximum daily load in an NPDES |
| 272 | permit until the permit expires, the discharge is modified, or |
| 273 | the permit is reopened pursuant to an adopted basin management |
| 274 | action plan. |
| 275 | a. Absent a detailed allocation, total maximum daily loads |
| 276 | shall be implemented through NPDES permit conditions that afford |
| 277 | a compliance schedule. In such instances, a facility's NPDES |
| 278 | permit shall allow time for the issuance of an order adopting |
| 279 | the basin management action plan. The time allowed for the |
| 280 | issuance of an order adopting the plan shall not exceed 5 years. |
| 281 | Upon the issuance of an order adopting the plan, the permit |
| 282 | shall be reopened as necessary and permit conditions consistent |
| 283 | with the plan shall be established. Notwithstanding the other |
| 284 | provisions of this sub-subparagraph, upon request by an NPDES |
| 285 | permittee, the department, as part of a permit renewal or |
| 286 | modification, may establish individual allocations prior to the |
| 287 | adoption of a basin management action plan. |
| 288 | b. For holders of NPDES municipal separate storm sewer |
| 289 | system permits and other stormwater sources, implementation of a |
| 290 | total maximum daily load or basin management action plan shall |
| 291 | be achieved, to the maximum extent practicable, through the use |
| 292 | of best management practices or other management measures. |
| 293 | c. The basin management action plan does not relieve the |
| 294 | discharger from any requirement to obtain, renew, or modify an |
| 295 | NPDES permit or to abide by other requirements of the permit. |
| 296 | d. Management strategies set forth in a basin management |
| 297 | action plan to be implemented by a discharger subject to |
| 298 | permitting by the department shall be completed pursuant to the |
| 299 | schedule set forth in the basin management action plan. This |
| 300 | implementation schedule may extend beyond the 5-year term of an |
| 301 | NPDES permit. |
| 302 | e. Management strategies and pollution reduction |
| 303 | requirements set forth in a basin management action plan for a |
| 304 | specific pollutant of concern shall not be subject to challenge |
| 305 | under chapter 120 at the time they are incorporated, in an |
| 306 | identical form, into a subsequent NPDES permit or permit |
| 307 | modification. |
| 308 | f. For nonagricultural pollutant sources not subject to |
| 309 | NPDES permitting but permitted pursuant to other state, |
| 310 | regional, or local water quality programs, the pollutant |
| 311 | reduction actions adopted in a basin management action plan |
| 312 | shall be implemented to the maximum extent practicable as part |
| 313 | of those permitting programs. |
| 314 | g. A nonpoint pollutant source discharger included in a |
| 315 | basin management action plan shall demonstrate compliance with |
| 316 | the pollutant reductions established pursuant to subsection (6) |
| 317 | by either implementing the appropriate best management practices |
| 318 | established pursuant to paragraph (c) or conducting water |
| 319 | quality monitoring prescribed by the department or a water |
| 320 | management district. |
| 321 | h. A nonpoint source discharger included in a basin |
| 322 | management action plan may be subject to enforcement action by |
| 323 | the department or a water management district based upon a |
| 324 | failure to implement the responsibilities set forth in sub- |
| 325 | subparagraph g. |
| 326 | i. A landowner, discharger, or other responsible person |
| 327 | who is implementing applicable management strategies specified |
| 328 | in an adopted basin management action plan shall not be required |
| 329 | by permit, enforcement action, or otherwise to implement |
| 330 | additional management strategies to reduce pollutant loads to |
| 331 | attain the pollutant reductions established pursuant to |
| 332 | subsection (6) and shall be deemed to be in compliance with this |
| 333 | section. This subparagraph does not limit the authority of the |
| 334 | department to amend a basin management action plan as specified |
| 335 | in subparagraph (a)5. |
| 336 | (b) In developing and implementing the total maximum daily |
| 337 | load for a water body, the department, or the department in |
| 338 | conjunction with a water management district, may develop a |
| 339 | watershed or basin management plan that addresses some or all of |
| 340 | the watersheds and basins tributary to the water body. These |
| 341 | plans will serve to fully integrate the management strategies |
| 342 | available to the state for the purpose of implementing the total |
| 343 | maximum daily loads and achieving water quality restoration. The |
| 344 | watershed or basin management planning process is intended to |
| 345 | involve the broadest possible range of interested parties, with |
| 346 | the objective of encouraging the greatest amount of cooperation |
| 347 | and consensus possible. The department or water management |
| 348 | district shall hold at least one public meeting in the vicinity |
| 349 | of the watershed or basin to discuss and receive comments during |
| 350 | the planning process and shall otherwise encourage public |
| 351 | participation to the greatest practical extent. Notice of the |
| 352 | public meeting shall be published in a newspaper of general |
| 353 | circulation in each county in which the watershed or basin lies |
| 354 | not less than 5 days nor more than 15 days before the public |
| 355 | meeting. A watershed or basin management plan shall not supplant |
| 356 | or otherwise alter any assessment made under s. 403.086(3) and |
| 357 | (4), or any calculation or allocation made under s. 403.086(6). |
| 358 | (c) Best management practices.-- |
| 359 | 1. The department, in cooperation with the water |
| 360 | management districts and other interested parties, as |
| 361 | appropriate, may develop suitable interim measures, best |
| 362 | management practices, or other measures necessary to achieve the |
| 363 | level of pollution reduction established by the department for |
| 364 | nonagricultural nonpoint pollutant sources in allocations |
| 365 | developed pursuant to this subsection and subsection (6) |
| 366 | paragraph (6)(b). These practices and measures may be adopted by |
| 367 | rule by the department and the water management districts |
| 368 | pursuant to ss. 120.536(1) and 120.54, and, where adopted by |
| 369 | rule, shall may be implemented by those parties responsible for |
| 370 | nonagricultural nonpoint source pollution pollutant sources and |
| 371 | the department and the water management districts shall assist |
| 372 | with implementation. Where interim measures, best management |
| 373 | practices, or other measures are adopted by rule, the |
| 374 | effectiveness of such practices in achieving the levels of |
| 375 | pollution reduction established in allocations developed by the |
| 376 | department pursuant to paragraph (6)(b) shall be verified by the |
| 377 | department. Implementation, in accordance with applicable rules, |
| 378 | of practices that have been verified by the department to be |
| 379 | effective at representative sites shall provide a presumption of |
| 380 | compliance with state water quality standards and release from |
| 381 | the provisions of s. 376.307(5) for those pollutants addressed |
| 382 | by the practices, and the department is not authorized to |
| 383 | institute proceedings against the owner of the source of |
| 384 | pollution to recover costs or damages associated with the |
| 385 | contamination of surface or ground water caused by those |
| 386 | pollutants. Such rules shall also incorporate provisions for a |
| 387 | notice of intent to implement the practices and a system to |
| 388 | assure the implementation of the practices, including |
| 389 | recordkeeping requirements. Where water quality problems are |
| 390 | detected despite the appropriate implementation, operation, and |
| 391 | maintenance of best management practices and other measures |
| 392 | according to rules adopted under this paragraph, the department |
| 393 | or the water management districts shall institute a reevaluation |
| 394 | of the best management practice or other measures. |
| 395 | 2.(d)1. The Department of Agriculture and Consumer |
| 396 | Services may develop and adopt by rule pursuant to ss. |
| 397 | 120.536(1) and 120.54 suitable interim measures, best management |
| 398 | practices, or other measures necessary to achieve the level of |
| 399 | pollution reduction established by the department for |
| 400 | agricultural pollutant sources in allocations developed pursuant |
| 401 | to this subsection and subsection (6) paragraph (6)(b). These |
| 402 | practices and measures may be implemented by those parties |
| 403 | responsible for agricultural pollutant sources and the |
| 404 | department, the water management districts, and the Department |
| 405 | of Agriculture and Consumer Services shall assist with |
| 406 | implementation. Where interim measures, best management |
| 407 | practices, or other measures are adopted by rule, the |
| 408 | effectiveness of such practices in achieving the levels of |
| 409 | pollution reduction established in allocations developed by the |
| 410 | department pursuant to paragraph (6)(b) shall be verified by the |
| 411 | department. Implementation, in accordance with applicable rules, |
| 412 | of practices that have been verified by the department to be |
| 413 | effective at representative sites shall provide a presumption of |
| 414 | compliance with state water quality standards and release from |
| 415 | the provisions of s. 376.307(5) for those pollutants addressed |
| 416 | by the practices, and the department is not authorized to |
| 417 | institute proceedings against the owner of the source of |
| 418 | pollution to recover costs or damages associated with the |
| 419 | contamination of surface or ground water caused by those |
| 420 | pollutants. In the process of developing and adopting rules for |
| 421 | interim measures, best management practices, or other measures, |
| 422 | the Department of Agriculture and Consumer Services shall |
| 423 | consult with the department, the Department of Health, the water |
| 424 | management districts, representatives from affected farming |
| 425 | groups, and environmental group representatives. Such rules |
| 426 | shall also incorporate provisions for a notice of intent to |
| 427 | implement the practices and a system to assure the |
| 428 | implementation of the practices, including recordkeeping |
| 429 | requirements. Where water quality problems are detected despite |
| 430 | the appropriate implementation, operation, and maintenance of |
| 431 | best management practices and other measures according to rules |
| 432 | adopted under this paragraph, the Department of Agriculture and |
| 433 | Consumer Services shall institute a reevaluation of the best |
| 434 | management practice or other measure. |
| 435 | 3. Where interim measures, best management practices, or |
| 436 | other measures are adopted by rule, the effectiveness of such |
| 437 | practices in achieving the levels of pollution reduction |
| 438 | established in allocations developed by the department pursuant |
| 439 | to this subsection and subsection (6) shall be verified at |
| 440 | representative sites by the department. The department shall use |
| 441 | best professional judgment in making the initial verification |
| 442 | that the best management practices are effective and, where |
| 443 | applicable, shall notify the appropriate water management |
| 444 | district or the Department of Agriculture and Consumer Services |
| 445 | of its initial verification prior to the adoption of a rule |
| 446 | proposed pursuant to this paragraph. Implementation, in |
| 447 | accordance with rules adopted under this paragraph, of practices |
| 448 | that have been initially verified to be effective, or verified |
| 449 | to be effective by monitoring at representative sites, by the |
| 450 | department shall provide a presumption of compliance with state |
| 451 | water quality standards and release from the provisions of s. |
| 452 | 376.307(5) for those pollutants addressed by the practices, and |
| 453 | the department is not authorized to institute proceedings |
| 454 | against the owner of the source of pollution to recover costs or |
| 455 | damages associated with the contamination of surface or ground |
| 456 | water caused by those pollutants. |
| 457 | 4. Where water quality problems are demonstrated, or |
| 458 | predicted during the development or amendment of a basin |
| 459 | management action plan, despite the appropriate implementation, |
| 460 | operation, and maintenance of best management practices and |
| 461 | other measures according to rules adopted under this paragraph, |
| 462 | the department, or a water management district or the Department |
| 463 | of Agriculture and Consumer Services in consultation with the |
| 464 | department, shall institute a reevaluation of the best |
| 465 | management practice or other measure. Should the reevaluation |
| 466 | determine that the best management practice or other measure |
| 467 | requires modification, the department, a water management |
| 468 | district, or the Department of Agriculture and Consumer |
| 469 | Services, as appropriate, shall revise the rule to require |
| 470 | implementation of the modified practice within a reasonable time |
| 471 | period as specified in the rule. |
| 472 | 5.2. Individual agricultural records relating to processes |
| 473 | or methods of production, or relating to costs of production, |
| 474 | profits, or other financial information which are otherwise not |
| 475 | public records, which are reported to the Department of |
| 476 | Agriculture and Consumer Services pursuant to subparagraphs 3. |
| 477 | and 4. this paragraph or pursuant to any rule adopted pursuant |
| 478 | to subparagraph 2. this paragraph shall be confidential and |
| 479 | exempt from s. 119.07(1) and s. 24(a), Art. I of the State |
| 480 | Constitution. Upon request of the department or any water |
| 481 | management district, the Department of Agriculture and Consumer |
| 482 | Services shall make such individual agricultural records |
| 483 | available to that agency, provided that the confidentiality |
| 484 | specified by this subparagraph for such records is maintained. |
| 485 | This subparagraph is subject to the Open Government Sunset |
| 486 | Review Act of 1995 in accordance with s. 119.15, and shall stand |
| 487 | repealed on October 2, 2006, unless reviewed and saved from |
| 488 | repeal through reenactment by the Legislature. |
| 489 | 6.(e) The provisions of subparagraphs 1. and 2. paragraphs |
| 490 | (c) and (d) shall not preclude the department or water |
| 491 | management district from requiring compliance with water quality |
| 492 | standards or with current best management practice requirements |
| 493 | set forth in any applicable regulatory program authorized by law |
| 494 | for the purpose of protecting water quality. Additionally, |
| 495 | subparagraphs 1. and 2. paragraphs (c) and (d) are applicable |
| 496 | only to the extent that they do not conflict with any rules |
| 497 | adopted promulgated by the department that are necessary to |
| 498 | maintain a federally delegated or approved program. |
| 499 | (8) RULES.--The department is authorized to adopt rules |
| 500 | pursuant to ss. 120.536(1) and 120.54 for: |
| 501 | (a) Delisting water bodies or water body segments from the |
| 502 | list developed under subsection (4) pursuant to the guidance |
| 503 | under subsection (5).; |
| 504 | (b) Administration of funds to implement the total maximum |
| 505 | daily load and basin management action planning program.; |
| 506 | (c) Procedures for pollutant trading among the pollutant |
| 507 | sources to a water body or water body segment, including a |
| 508 | mechanism for the issuance and tracking of pollutant credits. |
| 509 | Such procedures may be implemented through permits or other |
| 510 | authorizations and must be legally binding. Prior to adopting |
| 511 | rules for pollutant trading under this paragraph, and no later |
| 512 | than November 30, 2006, the Department of Environmental |
| 513 | Protection shall submit to the Governor, the President of the |
| 514 | Senate, and the Speaker of the House of Representatives a report |
| 515 | containing recommendations on such rules, including the proposed |
| 516 | basis for equitable economically based agreements and the |
| 517 | tracking and accounting of pollution credits or other similar |
| 518 | mechanisms. Such recommendations shall be developed in |
| 519 | cooperation with a technical advisory committee that includes |
| 520 | representatives of environmental organizations, industry, local |
| 521 | government, homebuilders, water management districts, |
| 522 | agriculture, stormwater utilities, and municipal utilities. No |
| 523 | rule implementing a pollutant trading program shall become |
| 524 | effective prior to review and ratification by the Legislature; |
| 525 | and |
| 526 | (d) The total maximum daily load calculation in accordance |
| 527 | with paragraph (6)(a) immediately upon the effective date of |
| 528 | this act, for those eight water segments within Lake Okeechobee |
| 529 | proper as submitted to the United States Environmental |
| 530 | Protection Agency pursuant to subsection (2). |
| 531 | (e) Any other purpose specifically provided for in this |
| 532 | section. |
| 533 | (11) IMPLEMENTATION OF ADDITIONAL PROGRAMS.-- |
| 534 | (a) The department shall not implement, without prior |
| 535 | legislative approval, any additional regulatory authority |
| 536 | pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part |
| 537 | 130, if such implementation would result in water quality |
| 538 | discharge regulation of activities not currently subject to |
| 539 | regulation. |
| 540 | (b) Interim measures, best management practices, or other |
| 541 | measures may be developed and voluntarily implemented pursuant |
| 542 | to subparagraph (7)(c)1. or subparagraph (7)(c)2. paragraph |
| 543 | (7)(c) or paragraph (7)(d) for any water body or segment for |
| 544 | which a total maximum daily load or allocation has not been |
| 545 | established. The implementation of such pollution control |
| 546 | programs may be considered by the department in the |
| 547 | determination made pursuant to subsection (4). |
| 548 | Section 2. Paragraph (c) of subsection (3) of section |
| 549 | 373.4595, Florida Statutes, is amended to read: |
| 550 | 373.4595 Lake Okeechobee Protection Program.-- |
| 551 | (3) LAKE OKEECHOBEE PROTECTION PROGRAM.--A protection |
| 552 | program for Lake Okeechobee that achieves phosphorus load |
| 553 | reductions for Lake Okeechobee shall be immediately implemented |
| 554 | as specified in this subsection. The program shall address the |
| 555 | reduction of phosphorus loading to the lake from both internal |
| 556 | and external sources. Phosphorus load reductions shall be |
| 557 | achieved through a phased program of implementation. Initial |
| 558 | implementation actions shall be technology-based, based upon a |
| 559 | consideration of both the availability of appropriate technology |
| 560 | and the cost of such technology, and shall include phosphorus |
| 561 | reduction measures at both the source and the regional level. |
| 562 | The initial phase of phosphorus load reductions shall be based |
| 563 | upon the district's Technical Publication 81-2 and the |
| 564 | district's WOD program, with subsequent phases of phosphorus |
| 565 | load reductions based upon the total maximum daily loads |
| 566 | established in accordance with s. 403.067. In the development |
| 567 | and administration of the Lake Okeechobee Protection Program, |
| 568 | the coordinating agencies shall maximize opportunities provided |
| 569 | by federal cost-sharing programs and opportunities for |
| 570 | partnerships with the private sector. |
| 571 | (c) Lake Okeechobee Watershed Phosphorus Control |
| 572 | Program.--The Lake Okeechobee Watershed Phosphorus Control |
| 573 | Program is designed to be a multifaceted approach to reducing |
| 574 | phosphorus loads by improving the management of phosphorus |
| 575 | sources within the Lake Okeechobee watershed through continued |
| 576 | implementation of existing regulations and best management |
| 577 | practices, development and implementation of improved best |
| 578 | management practices, improvement and restoration of the |
| 579 | hydrologic function of natural and managed systems, and |
| 580 | utilization of alternative technologies for nutrient reduction. |
| 581 | The coordinating agencies shall facilitate the application of |
| 582 | federal programs that offer opportunities for water quality |
| 583 | treatment, including preservation, restoration, or creation of |
| 584 | wetlands on agricultural lands. |
| 585 | 1. Agricultural nonpoint source best management practices, |
| 586 | developed in accordance with s. 403.067 and designed to achieve |
| 587 | the objectives of the Lake Okeechobee Protection Program, shall |
| 588 | be implemented on an expedited basis. By March 1, 2001, the |
| 589 | coordinating agencies shall develop an interagency agreement |
| 590 | pursuant to ss. 373.046 and 373.406(5) that assures the |
| 591 | development of best management practices that complement |
| 592 | existing regulatory programs and specifies how those best |
| 593 | management practices are implemented and verified. The |
| 594 | interagency agreement shall address measures to be taken by the |
| 595 | coordinating agencies during any best management practice |
| 596 | reevaluation performed pursuant to sub-subparagraph d. The |
| 597 | department shall use best professional judgment in making the |
| 598 | initial determination of best management practice effectiveness. |
| 599 | a. As provided in s. 403.067(7)(c)(d), by October 1, 2000, |
| 600 | the Department of Agriculture and Consumer Services, in |
| 601 | consultation with the department, the district, and affected |
| 602 | parties, shall initiate rule development for interim measures, |
| 603 | best management practices, conservation plans, nutrient |
| 604 | management plans, or other measures necessary for Lake |
| 605 | Okeechobee phosphorus load reduction. The rule shall include |
| 606 | thresholds for requiring conservation and nutrient management |
| 607 | plans and criteria for the contents of such plans. Development |
| 608 | of agricultural nonpoint source best management practices shall |
| 609 | initially focus on those priority basins listed in subparagraph |
| 610 | (b)1. The Department of Agriculture and Consumer Services, in |
| 611 | consultation with the department, the district, and affected |
| 612 | parties, shall conduct an ongoing program for improvement of |
| 613 | existing and development of new interim measures or best |
| 614 | management practices for the purpose of adoption of such |
| 615 | practices by rule. |
| 616 | b. Where agricultural nonpoint source best management |
| 617 | practices or interim measures have been adopted by rule of the |
| 618 | Department of Agriculture and Consumer Services, the owner or |
| 619 | operator of an agricultural nonpoint source addressed by such |
| 620 | rule shall either implement interim measures or best management |
| 621 | practices or demonstrate compliance with the district's WOD |
| 622 | program by conducting monitoring prescribed by the department or |
| 623 | the district. Owners or operators of agricultural nonpoint |
| 624 | sources who implement interim measures or best management |
| 625 | practices adopted by rule of the Department of Agriculture and |
| 626 | Consumer Services shall be subject to the provisions of s. |
| 627 | 403.067(7). The Department of Agriculture and Consumer Services, |
| 628 | in cooperation with the department and the district, shall |
| 629 | provide technical and financial assistance for implementation of |
| 630 | agricultural best management practices, subject to the |
| 631 | availability of funds. |
| 632 | c. The district or department shall conduct monitoring at |
| 633 | representative sites to verify the effectiveness of agricultural |
| 634 | nonpoint source best management practices. |
| 635 | d. Where water quality problems are detected for |
| 636 | agricultural nonpoint sources despite the appropriate |
| 637 | implementation of adopted best management practices, the |
| 638 | Department of Agriculture and Consumer Services, in consultation |
| 639 | with the other coordinating agencies and affected parties, shall |
| 640 | institute a reevaluation of the best management practices and |
| 641 | make appropriate changes to the rule adopting best management |
| 642 | practices. |
| 643 | 2. Nonagricultural nonpoint source best management |
| 644 | practices, developed in accordance with s. 403.067 and designed |
| 645 | to achieve the objectives of the Lake Okeechobee Protection |
| 646 | Program, shall be implemented on an expedited basis. By March 1, |
| 647 | 2001, the department and the district shall develop an |
| 648 | interagency agreement pursuant to ss. 373.046 and 373.406(5) |
| 649 | that assures the development of best management practices that |
| 650 | complement existing regulatory programs and specifies how those |
| 651 | best management practices are implemented and verified. The |
| 652 | interagency agreement shall address measures to be taken by the |
| 653 | department and the district during any best management practice |
| 654 | reevaluation performed pursuant to sub-subparagraph d. |
| 655 | a. The department and the district are directed to work |
| 656 | with the University of Florida's Institute of Food and |
| 657 | Agricultural Sciences to develop appropriate nutrient |
| 658 | application rates for all nonagricultural soil amendments in the |
| 659 | watershed. As provided in s. 403.067(7)(c), by January 1, 2001, |
| 660 | the department, in consultation with the district and affected |
| 661 | parties, shall develop interim measures, best management |
| 662 | practices, or other measures necessary for Lake Okeechobee |
| 663 | phosphorus load reduction. Development of nonagricultural |
| 664 | nonpoint source best management practices shall initially focus |
| 665 | on those priority basins listed in subparagraph (b)1. The |
| 666 | department, the district, and affected parties shall conduct an |
| 667 | ongoing program for improvement of existing and development of |
| 668 | new interim measures or best management practices. The district |
| 669 | shall adopt technology-based standards under the district's WOD |
| 670 | program for nonagricultural nonpoint sources of phosphorus. |
| 671 | b. Where nonagricultural nonpoint source best management |
| 672 | practices or interim measures have been developed by the |
| 673 | department and adopted by the district, the owner or operator of |
| 674 | a nonagricultural nonpoint source shall implement interim |
| 675 | measures or best management practices and be subject to the |
| 676 | provisions of s. 403.067(7). The department and district shall |
| 677 | provide technical and financial assistance for implementation of |
| 678 | nonagricultural nonpoint source best management practices, |
| 679 | subject to the availability of funds. |
| 680 | c. The district or the department shall conduct monitoring |
| 681 | at representative sites to verify the effectiveness of |
| 682 | nonagricultural nonpoint source best management practices. |
| 683 | d. Where water quality problems are detected for |
| 684 | nonagricultural nonpoint sources despite the appropriate |
| 685 | implementation of adopted best management practices, the |
| 686 | department and the district shall institute a reevaluation of |
| 687 | the best management practices. |
| 688 | 3. The provisions of subparagraphs 1. and 2. shall not |
| 689 | preclude the department or the district from requiring |
| 690 | compliance with water quality standards or with current best |
| 691 | management practices requirements set forth in any applicable |
| 692 | regulatory program authorized by law for the purpose of |
| 693 | protecting water quality. Additionally, subparagraphs 1. and 2. |
| 694 | are applicable only to the extent that they do not conflict with |
| 695 | any rules promulgated by the department that are necessary to |
| 696 | maintain a federally delegated or approved program. |
| 697 | 4. Projects which reduce the phosphorus load originating |
| 698 | from domestic wastewater systems within the Lake Okeechobee |
| 699 | watershed shall be given funding priority in the department's |
| 700 | revolving loan program under s. 403.1835. The department shall |
| 701 | coordinate and provide assistance to those local governments |
| 702 | seeking financial assistance for such priority projects. |
| 703 | 5. Projects that make use of private lands, or lands held |
| 704 | in trust for Indian tribes, to reduce nutrient loadings or |
| 705 | concentrations within a basin by one or more of the following |
| 706 | methods: restoring the natural hydrology of the basin, restoring |
| 707 | wildlife habitat or impacted wetlands, reducing peak flows after |
| 708 | storm events, increasing aquifer recharge, or protecting range |
| 709 | and timberland from conversion to development, are eligible for |
| 710 | grants available under this section from the coordinating |
| 711 | agencies. For projects of otherwise equal priority, special |
| 712 | funding priority will be given to those projects that make best |
| 713 | use of the methods outlined above that involve public-private |
| 714 | partnerships or that obtain federal match money. Preference |
| 715 | ranking above the special funding priority will be given to |
| 716 | projects located in a rural area of critical economic concern |
| 717 | designated by the Governor. Grant applications may be submitted |
| 718 | by any person or tribal entity, and eligible projects may |
| 719 | include, but are not limited to, the purchase of conservation |
| 720 | and flowage easements, hydrologic restoration of wetlands, |
| 721 | creating treatment wetlands, development of a management plan |
| 722 | for natural resources, and financial support to implement a |
| 723 | management plan. |
| 724 | 6.a. The department shall require all entities disposing |
| 725 | of domestic wastewater residuals within the Lake Okeechobee |
| 726 | watershed and the remaining areas of Okeechobee, Glades, and |
| 727 | Hendry Counties to develop and submit to the department an |
| 728 | agricultural use plan that limits applications based upon |
| 729 | phosphorus loading. By July 1, 2005, phosphorus concentrations |
| 730 | originating from these application sites shall not exceed the |
| 731 | limits established in the district's WOD program. |
| 732 | b. Private and government-owned utilities within Monroe, |
| 733 | Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, |
| 734 | Okeechobee, Highlands, Hendry, and Glades Counties that dispose |
| 735 | of wastewater residual sludge from utility operations and septic |
| 736 | removal by land spreading in the Lake Okeechobee watershed may |
| 737 | use a line item on local sewer rates to cover wastewater |
| 738 | residual treatment and disposal if such disposal and treatment |
| 739 | is done by approved alternative treatment methodology at a |
| 740 | facility located within the areas designated by the Governor as |
| 741 | rural areas of critical economic concern pursuant to s. |
| 742 | 288.0656. This additional line item is an environmental |
| 743 | protection disposal fee above the present sewer rate and shall |
| 744 | not be considered a part of the present sewer rate to customers, |
| 745 | notwithstanding provisions to the contrary in chapter 367. The |
| 746 | fee shall be established by the county commission or its |
| 747 | designated assignee in the county in which the alternative |
| 748 | method treatment facility is located. The fee shall be |
| 749 | calculated to be no higher than that necessary to recover the |
| 750 | facility's prudent cost of providing the service. Upon request |
| 751 | by an affected county commission, the Florida Public Service |
| 752 | Commission will provide assistance in establishing the fee. |
| 753 | Further, for utilities and utility authorities that use the |
| 754 | additional line item environmental protection disposal fee, such |
| 755 | fee shall not be considered a rate increase under the rules of |
| 756 | the Public Service Commission and shall be exempt from such |
| 757 | rules. Utilities using the provisions of this section may |
| 758 | immediately include in their sewer invoicing the new |
| 759 | environmental protection disposal fee. Proceeds from this |
| 760 | environmental protection disposal fee shall be used for |
| 761 | treatment and disposal of wastewater residuals, including any |
| 762 | treatment technology that helps reduce the volume of residuals |
| 763 | that require final disposal, but such proceeds shall not be used |
| 764 | for transportation or shipment costs for disposal or any costs |
| 765 | relating to the land application of residuals in the Lake |
| 766 | Okeechobee watershed. |
| 767 | c. No less frequently than once every 3 years, the Florida |
| 768 | Public Service Commission or the county commission through the |
| 769 | services of an independent auditor shall perform a financial |
| 770 | audit of all facilities receiving compensation from an |
| 771 | environmental protection disposal fee. The Florida Public |
| 772 | Service Commission or the county commission through the services |
| 773 | of an independent auditor shall also perform an audit of the |
| 774 | methodology used in establishing the environmental protection |
| 775 | disposal fee. The Florida Public Service Commission or the |
| 776 | county commission shall, within 120 days after completion of an |
| 777 | audit, file the audit report with the President of the Senate |
| 778 | and the Speaker of the House of Representatives and shall |
| 779 | provide copies to the county commissions of the counties set |
| 780 | forth in sub-subparagraph b. The books and records of any |
| 781 | facilities receiving compensation from an environmental |
| 782 | protection disposal fee shall be open to the Florida Public |
| 783 | Service Commission and the Auditor General for review upon |
| 784 | request. |
| 785 | 7. The Department of Health shall require all entities |
| 786 | disposing of septage within the Lake Okeechobee watershed and |
| 787 | the remaining areas of Okeechobee, Glades, and Hendry Counties |
| 788 | to develop and submit to that agency, by July 1, 2003, an |
| 789 | agricultural use plan that limits applications based upon |
| 790 | phosphorus loading. By July 1, 2005, phosphorus concentrations |
| 791 | originating from these application sites shall not exceed the |
| 792 | limits established in the district's WOD program. |
| 793 | 8. The Department of Agriculture and Consumer Services |
| 794 | shall initiate rulemaking requiring entities within the Lake |
| 795 | Okeechobee watershed and the remaining areas of Okeechobee, |
| 796 | Glades, and Hendry Counties which land-apply animal manure to |
| 797 | develop conservation or nutrient management plans that limit |
| 798 | application, based upon phosphorus loading. Such rules may |
| 799 | include criteria and thresholds for the requirement to develop a |
| 800 | conservation or nutrient management plan, requirements for plan |
| 801 | approval, and recordkeeping requirements. |
| 802 | 9. Prior to authorizing a discharge into works of the |
| 803 | district, the district shall require responsible parties to |
| 804 | demonstrate that proposed changes in land use will not result in |
| 805 | increased phosphorus loading over that of existing land uses. |
| 806 | 10. The district, the department, or the Department of |
| 807 | Agriculture and Consumer Services, as appropriate, shall |
| 808 | implement those alternative nutrient reduction technologies |
| 809 | determined to be feasible pursuant to subparagraph (d)6. |
| 810 | Section 3. Subsection (1) of section 570.085, Florida |
| 811 | Statutes, is amended to read: |
| 812 | 570.085 Department of Agriculture and Consumer Services; |
| 813 | agricultural water conservation.--The department shall establish |
| 814 | an agricultural water conservation program that includes the |
| 815 | following: |
| 816 | (1) A cost-share program, coordinated where appropriate |
| 817 | with the United States Department of Agriculture and other |
| 818 | federal, state, regional, and local agencies, for irrigation |
| 819 | system retrofit and application of mobile irrigation laboratory |
| 820 | evaluations for water conservation as provided in this section |
| 821 | and, where applicable, for water quality improvement pursuant to |
| 822 | s. 403.067(7)(c)(d). |
| 823 | Section 4. This act shall take effect upon becoming a law. |