Senate Bill sb2322c1
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By the Committee on Agriculture; and Senator Alexander
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1 A bill to be entitled
2 An act relating to total maximum daily loads;
3 amending s. 403.067, F.S.; providing for the
4 attainment of pollutant reductions for
5 achievement of certain water quality standards
6 in impaired waters; revising provisions for the
7 allocation of allowable pollutant loads;
8 authorizing the Department of Environmental
9 Protection to adopt phased total maximum daily
10 loads under certain conditions; providing for
11 the development and implementation of basin
12 management action plans in developing and
13 implementing total maximum daily loads;
14 revising provisions for the implementation of
15 and compliance with total maximum daily loads;
16 authorizing the department to adopt basin
17 management action plans by order; revising
18 provisions relating to verification by the
19 department of best management practices whose
20 implementation creates a presumption of
21 compliance with certain water quality standards
22 and a release of liability to the state for
23 pollution remediation; revising provisions
24 relating to reevaluation of best management
25 practices when water quality problems occur;
26 removing a provision specifying that provisions
27 relating to the department's verification or
28 reevaluation of best management practices do
29 not preclude authority of the department or the
30 water management districts to require
31 compliance with water quality standards or
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1 other specified requirements; authorizing
2 rulemaking by the department to administer
3 funds to implement the basin management action
4 planning program and for other purposes in the
5 section; requiring the department to submit a
6 report to the Governor, the President of the
7 Senate, and the Speaker of the House of
8 Representatives prior to adopting rules for
9 pollutant trading; amending ss. 373.4595 and
10 570.085, F.S.; correcting cross-references;
11 providing an effective date.
12
13 Be It Enacted by the Legislature of the State of Florida:
14
15 Section 1. Paragraph (d) of subsection (2) and
16 subsections (6), (7), (8), and (11) of section 403.067,
17 Florida Statutes, are amended to read:
18 403.067 Establishment and implementation of total
19 maximum daily loads.--
20 (2) LIST OF SURFACE WATERS OR SEGMENTS.--In accordance
21 with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33
22 U.S.C. ss. 1251 et seq., the department must submit
23 periodically to the United States Environmental Protection
24 Agency a list of surface waters or segments for which total
25 maximum daily load assessments will be conducted. The
26 assessments shall evaluate the water quality conditions of the
27 listed waters and, if such waters are determined not to meet
28 water quality standards, total maximum daily loads shall be
29 established, subject to the provisions of subsection (4). The
30 department shall establish a priority ranking and schedule for
31 analyzing such waters.
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1 (d) If the department proposes to implement total
2 maximum daily load calculations or allocations established
3 prior to the effective date of this act, the department shall
4 adopt those calculations and allocations by rule by the
5 secretary pursuant to ss. 120.536(1) and 120.54 and paragraph
6 (6)(c)(d).
7 (6) CALCULATION AND ALLOCATION.--
8 (a) Calculation of total maximum daily load.--
9 1. Prior to developing a total maximum daily load
10 calculation for each water body or water body segment on the
11 list specified in subsection (4), the department shall
12 coordinate with applicable local governments, water management
13 districts, the Department of Agriculture and Consumer
14 Services, other appropriate state agencies, local soil and
15 water conservation districts, environmental groups, regulated
16 interests, and affected pollution sources to determine the
17 information required, accepted methods of data collection and
18 analysis, and quality control/quality assurance requirements.
19 The analysis may include mathematical water quality modeling
20 using approved procedures and methods.
21 2. The department shall develop total maximum daily
22 load calculations for each water body or water body segment on
23 the list described in subsection (4) according to the priority
24 ranking and schedule unless the impairment of such waters is
25 due solely to activities other than point and nonpoint sources
26 of pollution. For waters determined to be impaired due solely
27 to factors other than point and nonpoint sources of pollution,
28 no total maximum daily load will be required. A total maximum
29 daily load may be required for those waters that are impaired
30 predominantly due to activities other than point and nonpoint
31 sources. The total maximum daily load calculation shall
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1 establish the amount of a pollutant that a water body or water
2 body segment may receive from all sources without exceeding
3 water quality standards, and shall account for seasonal
4 variations and include a margin of safety that takes into
5 account any lack of knowledge concerning the relationship
6 between effluent limitations and water quality. The total
7 maximum daily load may be based on a pollutant load reduction
8 goal developed by a water management district, provided that
9 such pollutant load reduction goal is promulgated by the
10 department in accordance with the procedural and substantive
11 requirements of this subsection.
12 (b) Allocation of total maximum daily loads.--The
13 total maximum daily loads shall include establishment of
14 reasonable and equitable allocations of the total maximum
15 daily load between or among point and nonpoint sources that
16 will alone, or in conjunction with other management and
17 restoration activities, provide for the attainment of the
18 pollutant reductions established pursuant to paragraph (a) to
19 achieve water quality standards for the pollutant causing
20 impairment and the restoration of impaired waters. The
21 allocations may establish the maximum amount of the water
22 pollutant which from a given source or category of sources
23 that may be discharged or released into the water body or
24 water body segment in combination with other discharges or
25 releases. Allocations may also be made to individual basins
26 and sources or as a whole to all basins and sources or
27 categories of sources of inflow to the water body or water
28 body segments. An initial allocation of allowable pollutant
29 loads among point and nonpoint sources may be developed as
30 part of the total maximum daily load. However, in such cases,
31 the detailed allocation to specific point sources and specific
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1 categories of nonpoint sources shall be established in the
2 basin management action plan pursuant to subsection (7). The
3 initial and detailed allocations shall be designed to attain
4 the pollutant reductions established pursuant to paragraph (a)
5 water quality standards and shall be based on consideration of
6 the following:
7 1. Existing treatment levels and management practices;
8 2. Best management practices established and
9 implemented pursuant to paragraph (7)(c);
10 3. Enforceable treatment levels established pursuant
11 to state or local law or permit;
12 4.2. Differing impacts pollutant sources and forms of
13 pollution may have on water quality;
14 5.3. The availability of treatment technologies,
15 management practices, or other pollutant reduction measures;
16 6.4. Environmental, economic, and technological
17 feasibility of achieving the allocation;
18 7.5. The cost benefit associated with achieving the
19 allocation;
20 8.6. Reasonable timeframes for implementation;
21 9.7. Potential applicability of any moderating
22 provisions such as variances, exemptions, and mixing zones;
23 and
24 10.8. The extent to which nonattainment of water
25 quality standards is caused by pollution sources outside of
26 Florida, discharges that have ceased, or alterations to water
27 bodies prior to the date of this act.
28 (c) Not later than February 1, 2001, the department
29 shall submit a report to the Governor, the President of the
30 Senate, and the Speaker of the House of Representatives
31 containing recommendations, including draft legislation, for
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1 any modifications to the process for allocating total maximum
2 daily loads, including the relationship between allocations
3 and the watershed or basin management planning process. Such
4 recommendations shall be developed by the department in
5 cooperation with a technical advisory committee which includes
6 representatives of affected parties, environmental
7 organizations, water management districts, and other
8 appropriate local, state, and federal government agencies. The
9 technical advisory committee shall also include such members
10 as may be designated by the President of the Senate and the
11 Speaker of the House of Representatives.
12 (c)(d) Adoption of rules.--The total maximum daily
13 load calculations and allocations established under this
14 subsection for each water body or water body segment shall be
15 adopted by rule by the secretary pursuant to ss. 120.536(1),
16 120.54, and 403.805. Where additional data collection and
17 analysis are needed to increase the scientific precision and
18 accuracy of the total maximum daily load, the department may
19 adopt phased total maximum daily loads that are subject to
20 change as additional data becomes available. Where phased
21 total maximum daily loads are proposed, the department shall,
22 in the detailed statement of facts and circumstances
23 justifying the rule, explain why the data are inadequate so as
24 to justify a phased total maximum daily load. The rules
25 adopted pursuant to this paragraph shall not be subject to
26 approval by the Environmental Regulation Commission. As part
27 of the rule development process, the department shall hold at
28 least one public workshop in the vicinity of the water body or
29 water body segment for which the total maximum daily load is
30 being developed. Notice of the public workshop shall be
31 published not less than 5 days nor more than 15 days before
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1 the public workshop in a newspaper of general circulation in
2 the county or counties containing the water bodies or water
3 body segments for which the total maximum daily load
4 calculation and allocation are being developed.
5 (7) DEVELOPMENT OF BASIN MANAGEMENT ACTION PLANS;
6 IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS; BEST MANAGEMENT
7 PRACTICES.--
8 (a) Basin management action plans.--
9 1. In developing and implementing the total maximum
10 daily load for a water body, the department, or the department
11 in conjunction with a water management district, may develop a
12 basin management action plan that addresses some or all of the
13 watersheds and basins tributary to the water body. Such a plan
14 shall integrate the appropriate management strategies
15 available to the state through existing water quality
16 protection programs to achieve the total maximum daily load
17 and may provide for phased implementation of these management
18 strategies to promote timely, cost-effective actions as
19 provided for in s. 403.151. The plan shall establish a
20 schedule for implementing the management strategies, establish
21 a basis for evaluating the plan's effectiveness, and identify
22 feasible funding strategies to implement the plan's management
23 strategies. The management strategies may include regional
24 treatment systems or other public works, where appropriate, to
25 achieve the needed pollutant load reductions.
26 2. A basin management action plan shall, pursuant to
27 paragraph (6)(b), equitably allocate pollutant reductions to
28 individual basins, as a whole to all basins or to each
29 identified point source or category of nonpoint sources, as
30 appropriate. For nonpoint sources for which best management
31 practices have been adopted, the initial requirement specified
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1 by the plan shall be those practices developed pursuant to
2 paragraph (c). Where appropriate, the plan may provide
3 pollutant load reduction credit to those dischargers that have
4 implemented management strategies to reduce pollutant loads,
5 including best management practices, prior to the development
6 of the basin management action plan. The plan also shall
7 identify the mechanisms by which potential future increases in
8 pollutant loading will be addressed.
9 3. The basin management action planning process is
10 intended to involve the broadest possible range of interested
11 parties, with the objective of encouraging the greatest amount
12 of cooperation and consensus possible. In developing a basin
13 management action plan, the department shall ensure that key
14 stakeholders, including, but not limited to, applicable local
15 governments, water management districts, the Department of
16 Agriculture and Consumer Services, other appropriate state
17 agencies, local soil and water conservation districts,
18 environmental groups, regulated interests, and affected
19 pollution sources are invited to participate in the process.
20 The department shall hold at least one public meeting in the
21 vicinity of the watershed or basin to discuss and receive
22 comments during the planning process and shall otherwise
23 encourage public participation to the greatest practical
24 extent. Not fewer than 5 days or more than 15 days before the
25 public meeting, notice of the public meeting shall be
26 published in a newspaper of general circulation in each county
27 in which the watershed or basin lies. A basin management
28 action plan shall not supplant or otherwise alter any
29 assessment made under subsection (3) or subsection (4) or any
30 calculation or preliminary allocation made under subsection
31 (6).
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1 4. The department shall adopt all or any part of a
2 basin management action plan by secretarial order pursuant to
3 chapter 120 to implement this section.
4 5. The basin management action plan must include
5 milestones for implementation and water quality improvement
6 and an associated water quality monitoring component
7 sufficient to evaluate whether reasonable progress in
8 pollutant load reductions is being achieved over time. An
9 assessment of progress toward these milestones shall be
10 conducted every 5 years and revisions to the plan shall be
11 made as appropriate. Revisions to the basin management action
12 plan shall be made by the department in cooperation with basin
13 stakeholders. Revisions to the management strategies required
14 for nonpoint sources shall follow the procedures set forth in
15 subparagraph (c)4. Revised basin management action plans shall
16 be adopted pursuant to subparagraph 4.
17 (b) Total maximum daily load implementation.--
18 1.(a) The department shall be the lead agency in
19 coordinating the implementation of the total maximum daily
20 loads through existing water quality protection programs.
21 Application of a total maximum daily load by a water
22 management district shall be consistent with this section and
23 shall not require the issuance of an order or a separate
24 action pursuant to s. 120.536(1) or s. 120.54 for adoption of
25 the calculation and allocation previously established by the
26 department. Such programs may include, but are not limited to:
27 a.1. Permitting and other existing regulatory
28 programs, including water-quality-based effluent limitations;
29 b.2. Nonregulatory and incentive-based programs,
30 including best management practices, cost sharing, waste
31
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1 minimization, pollution prevention, agreements established
2 pursuant to s. 403.061(21), and public education;
3 c.3. Other water quality management and restoration
4 activities, for example surface water improvement and
5 management plans approved by water management districts or
6 watershed or basin management action plans developed pursuant
7 to this subsection;
8 d.4. Pollutant trading or other equitable economically
9 based agreements;
10 e.5. Public works including capital facilities; or
11 f.6. Land acquisition.
12 2. For a basin management action plan adopted pursuant
13 to subparagraph (a)4., any management strategies and pollutant
14 reduction requirements associated with a pollutant of concern
15 for which a total maximum daily load was developed, including
16 effluent limits set forth for a discharger subject to NPDES
17 permitting, if any, shall be included in subsequent NPDES
18 permits or permit modifications for that discharger in a
19 timely manner. The department shall not impose limits or
20 conditions implementing an adopted total maximum daily load in
21 a NPDES permit until the permit expires, the discharge is
22 modified, or the permit is reopened pursuant to an adopted
23 basin management action plan.
24 a. For holders of NPDES municipal separate storm sewer
25 system permits and other stormwater sources, implementation of
26 a total maximum daily load or basin management action plan
27 shall be achieved, to the maximum extent practicable, through
28 the use of best management practices or other management
29 measures.
30 b. The basin management action plan does not relieve
31 the discharger from any requirement to obtain, renew, or
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1 modify a NPDES permit or to abide by other requirements of the
2 permit.
3 c. Management strategies set forth in a basin
4 management action plan to be implemented by a discharger
5 subject to permitting by the department shall be completed
6 pursuant to the schedule set forth in the basin management
7 action plan. This implementation schedule may extend beyond
8 the 5-year term of a NPDES permit.
9 d. Management strategies and pollution reduction
10 requirements set forth in a basin management action plan for a
11 specific pollutant of concern shall not be subject to
12 challenge under chapter 120 at the time they are incorporated,
13 in an identical form, into a subsequent NPDES permit or permit
14 modification.
15 e. For nonagricultural pollutant sources not subject
16 to NPDES permitting but permitted pursuant to other state,
17 regional, or local water quality programs, the pollutant
18 reduction actions adopted in a basin management action plan
19 shall be implemented to the maximum extent practicable as part
20 of those permitting programs.
21 f. A nonpoint pollutant source discharger included in
22 a basin management action plan shall demonstrate compliance
23 with the pollutant reductions established pursuant to
24 subsection (6) by implementing the appropriate best management
25 practices established pursuant to paragraph (c) or by
26 conducting the water quality monitoring prescribed by the
27 department or a water management district.
28 g. A nonpoint pollutant source discharger included in
29 a basin management action plan may be subject to enforcement
30 action by the department or a water management district based
31
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1 upon the failure to implement the responsibilities in
2 sub-subparagraph f.
3 h. A landowner, discharger, or other responsible
4 person who is implementing applicable management strategies
5 specified in an adopted basin management action plan shall not
6 be required by permit, enforcement action, or otherwise to
7 implement additional management strategies to reduce pollutant
8 loads to attain the pollutant reductions established pursuant
9 to subsection (6) and shall be deemed to be in compliance with
10 this section. This subparagraph does not limit the authority
11 of the department to amend a basin management action plan as
12 specified in subparagraph (a)5.
13 (b) In developing and implementing the total maximum
14 daily load for a water body, the department, or the department
15 in conjunction with a water management district, may develop a
16 watershed or basin management plan that addresses some or all
17 of the watersheds and basins tributary to the water body.
18 These plans will serve to fully integrate the management
19 strategies available to the state for the purpose of
20 implementing the total maximum daily loads and achieving water
21 quality restoration. The watershed or basin management
22 planning process is intended to involve the broadest possible
23 range of interested parties, with the objective of encouraging
24 the greatest amount of cooperation and consensus possible. The
25 department or water management district shall hold at least
26 one public meeting in the vicinity of the watershed or basin
27 to discuss and receive comments during the planning process
28 and shall otherwise encourage public participation to the
29 greatest practical extent. Notice of the public meeting shall
30 be published in a newspaper of general circulation in each
31 county in which the watershed or basin lies not less than 5
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1 days nor more than 15 days before the public meeting. A
2 watershed or basin management plan shall not supplant or
3 otherwise alter any assessment made under s. 403.086(3) and
4 (4), or any calculation or allocation made under s.
5 403.086(6).
6 (c) Best management practices.--
7 1. The department, in cooperation with the water
8 management districts and other interested parties, as
9 appropriate, may develop suitable interim measures, best
10 management practices, or other measures necessary to achieve
11 the level of pollution reduction established by the department
12 for nonagricultural nonpoint pollutant sources in allocations
13 developed pursuant to this subsection and subsection (6)
14 paragraph (6)(b). These practices and measures may be adopted
15 by rule by the department and the water management districts
16 pursuant to ss. 120.536(1) and 120.54, and, where adopted by
17 rule, shall may be implemented by those parties responsible
18 for nonagricultural nonpoint source pollution pollutant
19 sources and the department and the water management districts
20 shall assist with implementation. Where interim measures, best
21 management practices, or other measures are adopted by rule,
22 the effectiveness of such practices in achieving the levels of
23 pollution reduction established in allocations developed by
24 the department pursuant to paragraph (6)(b) shall be verified
25 by the department. Implementation, in accordance with
26 applicable rules, of practices that have been verified by the
27 department to be effective at representative sites shall
28 provide a presumption of compliance with state water quality
29 standards and release from the provisions of s. 376.307(5) for
30 those pollutants addressed by the practices, and the
31 department is not authorized to institute proceedings against
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1 the owner of the source of pollution to recover costs or
2 damages associated with the contamination of surface or ground
3 water caused by those pollutants. Such rules shall also
4 incorporate provisions for a notice of intent to implement the
5 practices and a system to assure the implementation of the
6 practices, including recordkeeping requirements. Where water
7 quality problems are detected despite the appropriate
8 implementation, operation, and maintenance of best management
9 practices and other measures according to rules adopted under
10 this paragraph, the department or the water management
11 districts shall institute a reevaluation of the best
12 management practice or other measures.
13 2.(d)1. The Department of Agriculture and Consumer
14 Services may develop and adopt by rule pursuant to ss.
15 120.536(1) and 120.54 suitable interim measures, best
16 management practices, or other measures necessary to achieve
17 the level of pollution reduction established by the department
18 for agricultural pollutant sources in allocations developed
19 pursuant to this subsection and subsection (6) paragraph
20 (6)(b). These practices and measures may be implemented by
21 those parties responsible for agricultural pollutant sources
22 and the department, the water management districts, and the
23 Department of Agriculture and Consumer Services shall assist
24 with implementation. Where interim measures, best management
25 practices, or other measures are adopted by rule, the
26 effectiveness of such practices in achieving the levels of
27 pollution reduction established in allocations developed by
28 the department pursuant to paragraph (6)(b) shall be verified
29 by the department. Implementation, in accordance with
30 applicable rules, of practices that have been verified by the
31 department to be effective at representative sites shall
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1 provide a presumption of compliance with state water quality
2 standards and release from the provisions of s. 376.307(5) for
3 those pollutants addressed by the practices, and the
4 department is not authorized to institute proceedings against
5 the owner of the source of pollution to recover costs or
6 damages associated with the contamination of surface or ground
7 water caused by those pollutants. In the process of developing
8 and adopting rules for interim measures, best management
9 practices, or other measures, the Department of Agriculture
10 and Consumer Services shall consult with the department, the
11 Department of Health, the water management districts,
12 representatives from affected farming groups, and
13 environmental group representatives. Such rules shall also
14 incorporate provisions for a notice of intent to implement the
15 practices and a system to assure the implementation of the
16 practices, including recordkeeping requirements. Where water
17 quality problems are detected despite the appropriate
18 implementation, operation, and maintenance of best management
19 practices and other measures according to rules adopted under
20 this paragraph, the Department of Agriculture and Consumer
21 Services shall institute a reevaluation of the best management
22 practice or other measure.
23 3. Where interim measures, best management practices,
24 or other measures are adopted by rule, the effectiveness of
25 such practices in achieving the levels of pollution reduction
26 established in allocations developed by the department
27 pursuant to this subsection and subsection (6) shall be
28 verified at representative sites by the department. The
29 department shall use best professional judgment in making the
30 initial verification that the best management practices are
31 effective and, where applicable, shall notify the appropriate
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1 water management district or the Department of Agriculture and
2 Consumer Services of its initial verification prior to the
3 adoption of a rule proposed pursuant to this paragraph.
4 Implementation, in accordance with rules adopted under this
5 paragraph, of practices that have been initially verified to
6 be effective, or verified to be effective by monitoring at
7 representative sites, by the department shall provide a
8 presumption of compliance with state water quality standards
9 and release from the provisions of s. 376.307(5) for those
10 pollutants addressed by the practices, and the department is
11 not authorized to institute proceedings against the owner of
12 the source of pollution to recover costs or damages associated
13 with the contamination of surface or ground water caused by
14 those pollutants.
15 4. Where water quality problems are demonstrated
16 during the development or amendment of a basin management
17 action plan, despite the appropriate implementation,
18 operation, and maintenance of best management practices and
19 other measures according to rules adopted under this
20 paragraph, the department, or a water management district or
21 the Department of Agriculture and Consumer Services in
22 consultation with the department, shall institute a
23 reevaluation of the best management practice or other measure.
24 Should the reevaluation determine that the best management
25 practice or other measure requires modification, the
26 department, a water management district, or the Department of
27 Agriculture and Consumer Services, as appropriate, shall
28 revise the rule to require implementation of the modified
29 practice within a reasonable time period as specified in the
30 rule.
31
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1 5.2. Individual agricultural records relating to
2 processes or methods of production, or relating to costs of
3 production, profits, or other financial information which are
4 otherwise not public records, which are reported to the
5 Department of Agriculture and Consumer Services pursuant to
6 subparagraphs 3. and 4. this paragraph or pursuant to any rule
7 adopted pursuant to subparagraph 2. this paragraph shall be
8 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
9 of the State Constitution. Upon request of the department or
10 any water management district, the Department of Agriculture
11 and Consumer Services shall make such individual agricultural
12 records available to that agency, provided that the
13 confidentiality specified by this subparagraph for such
14 records is maintained. This subparagraph is subject to the
15 Open Government Sunset Review Act of 1995 in accordance with
16 s. 119.15, and shall stand repealed on October 2, 2006, unless
17 reviewed and saved from repeal through reenactment by the
18 Legislature.
19 6.(e) The provisions of subparagraphs 1. and 2.
20 paragraphs (c) and (d) shall not preclude the department or
21 water management district from requiring compliance with water
22 quality standards or with current best management practice
23 requirements set forth in any applicable regulatory program
24 authorized by law for the purpose of protecting water quality.
25 Additionally, subparagraphs 1. and 2. paragraphs (c) and (d)
26 are applicable only to the extent that they do not conflict
27 with any rules adopted promulgated by the department that are
28 necessary to maintain a federally delegated or approved
29 program.
30 (8) RULES.--The department is authorized to adopt
31 rules pursuant to ss. 120.536(1) and 120.54 for:
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1 (a) Delisting water bodies or water body segments from
2 the list developed under subsection (4) pursuant to the
3 guidance under subsection (5).;
4 (b) Administration of funds to implement the total
5 maximum daily load and basin management action planning
6 program.;
7 (c) Procedures for pollutant trading among the
8 pollutant sources to a water body or water body segment,
9 including a mechanism for the issuance and tracking of
10 pollutant credits. Such procedures may be implemented through
11 permits or other authorizations and must be legally binding.
12 Prior to adopting rules for pollutant trading under this
13 paragraph, and no later than November 30, 2006, the Department
14 of Environmental Protection shall submit to the Governor, the
15 President of the Senate, and the Speaker of the House of
16 Representatives a report containing recommendations on such
17 rules, including the proposed basis for equitable economically
18 based agreements and the tracking and accounting of pollution
19 credits or other similar mechanisms. Such recommendations
20 shall be developed in cooperation with a technical advisory
21 committee that includes representatives of environmental
22 organizations, industry, local government, homebuilders, water
23 management districts, agriculture, stormwater utilities, and
24 municipal utilities. No rule implementing a pollutant trading
25 program shall become effective prior to review and
26 ratification by the Legislature; and
27 (d) The total maximum daily load calculation in
28 accordance with paragraph (6)(a) immediately upon the
29 effective date of this act, for those eight water segments
30 within Lake Okeechobee proper as submitted to the United
31
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1 States Environmental Protection Agency pursuant to subsection
2 (2).
3 (e) Any other purpose specifically provided for in
4 this section.
5 (11) IMPLEMENTATION OF ADDITIONAL PROGRAMS.--
6 (a) The department shall not implement, without prior
7 legislative approval, any additional regulatory authority
8 pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part
9 130, if such implementation would result in water quality
10 discharge regulation of activities not currently subject to
11 regulation.
12 (b) Interim measures, best management practices, or
13 other measures may be developed and voluntarily implemented
14 pursuant to subparagraph (7)(c)1. or subparagraph (7)(c)2.
15 paragraph (7)(c) or paragraph (7)(d) for any water body or
16 segment for which a total maximum daily load or allocation has
17 not been established. The implementation of such pollution
18 control programs may be considered by the department in the
19 determination made pursuant to subsection (4).
20 Section 2. Paragraph (c) of subsection (3) of section
21 373.4595, Florida Statutes, is amended to read:
22 373.4595 Lake Okeechobee Protection Program.--
23 (3) LAKE OKEECHOBEE PROTECTION PROGRAM.--A protection
24 program for Lake Okeechobee that achieves phosphorus load
25 reductions for Lake Okeechobee shall be immediately
26 implemented as specified in this subsection. The program shall
27 address the reduction of phosphorus loading to the lake from
28 both internal and external sources. Phosphorus load reductions
29 shall be achieved through a phased program of implementation.
30 Initial implementation actions shall be technology-based,
31 based upon a consideration of both the availability of
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1 appropriate technology and the cost of such technology, and
2 shall include phosphorus reduction measures at both the source
3 and the regional level. The initial phase of phosphorus load
4 reductions shall be based upon the district's Technical
5 Publication 81-2 and the district's WOD program, with
6 subsequent phases of phosphorus load reductions based upon the
7 total maximum daily loads established in accordance with s.
8 403.067. In the development and administration of the Lake
9 Okeechobee Protection Program, the coordinating agencies shall
10 maximize opportunities provided by federal cost-sharing
11 programs and opportunities for partnerships with the private
12 sector.
13 (c) Lake Okeechobee Watershed Phosphorus Control
14 Program.--The Lake Okeechobee Watershed Phosphorus Control
15 Program is designed to be a multifaceted approach to reducing
16 phosphorus loads by improving the management of phosphorus
17 sources within the Lake Okeechobee watershed through continued
18 implementation of existing regulations and best management
19 practices, development and implementation of improved best
20 management practices, improvement and restoration of the
21 hydrologic function of natural and managed systems, and
22 utilization of alternative technologies for nutrient
23 reduction. The coordinating agencies shall facilitate the
24 application of federal programs that offer opportunities for
25 water quality treatment, including preservation, restoration,
26 or creation of wetlands on agricultural lands.
27 1. Agricultural nonpoint source best management
28 practices, developed in accordance with s. 403.067 and
29 designed to achieve the objectives of the Lake Okeechobee
30 Protection Program, shall be implemented on an expedited
31 basis. By March 1, 2001, the coordinating agencies shall
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1 develop an interagency agreement pursuant to ss. 373.046 and
2 373.406(5) that assures the development of best management
3 practices that complement existing regulatory programs and
4 specifies how those best management practices are implemented
5 and verified. The interagency agreement shall address measures
6 to be taken by the coordinating agencies during any best
7 management practice reevaluation performed pursuant to
8 sub-subparagraph d. The department shall use best professional
9 judgment in making the initial determination of best
10 management practice effectiveness.
11 a. As provided in s. 403.067(7)(c)(d), by October 1,
12 2000, the Department of Agriculture and Consumer Services, in
13 consultation with the department, the district, and affected
14 parties, shall initiate rule development for interim measures,
15 best management practices, conservation plans, nutrient
16 management plans, or other measures necessary for Lake
17 Okeechobee phosphorus load reduction. The rule shall include
18 thresholds for requiring conservation and nutrient management
19 plans and criteria for the contents of such plans. Development
20 of agricultural nonpoint source best management practices
21 shall initially focus on those priority basins listed in
22 subparagraph (b)1. The Department of Agriculture and Consumer
23 Services, in consultation with the department, the district,
24 and affected parties, shall conduct an ongoing program for
25 improvement of existing and development of new interim
26 measures or best management practices for the purpose of
27 adoption of such practices by rule.
28 b. Where agricultural nonpoint source best management
29 practices or interim measures have been adopted by rule of the
30 Department of Agriculture and Consumer Services, the owner or
31 operator of an agricultural nonpoint source addressed by such
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1 rule shall either implement interim measures or best
2 management practices or demonstrate compliance with the
3 district's WOD program by conducting monitoring prescribed by
4 the department or the district. Owners or operators of
5 agricultural nonpoint sources who implement interim measures
6 or best management practices adopted by rule of the Department
7 of Agriculture and Consumer Services shall be subject to the
8 provisions of s. 403.067(7). The Department of Agriculture and
9 Consumer Services, in cooperation with the department and the
10 district, shall provide technical and financial assistance for
11 implementation of agricultural best management practices,
12 subject to the availability of funds.
13 c. The district or department shall conduct monitoring
14 at representative sites to verify the effectiveness of
15 agricultural nonpoint source best management practices.
16 d. Where water quality problems are detected for
17 agricultural nonpoint sources despite the appropriate
18 implementation of adopted best management practices, the
19 Department of Agriculture and Consumer Services, in
20 consultation with the other coordinating agencies and affected
21 parties, shall institute a reevaluation of the best management
22 practices and make appropriate changes to the rule adopting
23 best management practices.
24 2. Nonagricultural nonpoint source best management
25 practices, developed in accordance with s. 403.067 and
26 designed to achieve the objectives of the Lake Okeechobee
27 Protection Program, shall be implemented on an expedited
28 basis. By March 1, 2001, the department and the district shall
29 develop an interagency agreement pursuant to ss. 373.046 and
30 373.406(5) that assures the development of best management
31 practices that complement existing regulatory programs and
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1 specifies how those best management practices are implemented
2 and verified. The interagency agreement shall address measures
3 to be taken by the department and the district during any best
4 management practice reevaluation performed pursuant to
5 sub-subparagraph d.
6 a. The department and the district are directed to
7 work with the University of Florida's Institute of Food and
8 Agricultural Sciences to develop appropriate nutrient
9 application rates for all nonagricultural soil amendments in
10 the watershed. As provided in s. 403.067(7)(c), by January 1,
11 2001, the department, in consultation with the district and
12 affected parties, shall develop interim measures, best
13 management practices, or other measures necessary for Lake
14 Okeechobee phosphorus load reduction. Development of
15 nonagricultural nonpoint source best management practices
16 shall initially focus on those priority basins listed in
17 subparagraph (b)1. The department, the district, and affected
18 parties shall conduct an ongoing program for improvement of
19 existing and development of new interim measures or best
20 management practices. The district shall adopt
21 technology-based standards under the district's WOD program
22 for nonagricultural nonpoint sources of phosphorus.
23 b. Where nonagricultural nonpoint source best
24 management practices or interim measures have been developed
25 by the department and adopted by the district, the owner or
26 operator of a nonagricultural nonpoint source shall implement
27 interim measures or best management practices and be subject
28 to the provisions of s. 403.067(7). The department and
29 district shall provide technical and financial assistance for
30 implementation of nonagricultural nonpoint source best
31 management practices, subject to the availability of funds.
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1 c. The district or the department shall conduct
2 monitoring at representative sites to verify the effectiveness
3 of nonagricultural nonpoint source best management practices.
4 d. Where water quality problems are detected for
5 nonagricultural nonpoint sources despite the appropriate
6 implementation of adopted best management practices, the
7 department and the district shall institute a reevaluation of
8 the best management practices.
9 3. The provisions of subparagraphs 1. and 2. shall not
10 preclude the department or the district from requiring
11 compliance with water quality standards or with current best
12 management practices requirements set forth in any applicable
13 regulatory program authorized by law for the purpose of
14 protecting water quality. Additionally, subparagraphs 1. and
15 2. are applicable only to the extent that they do not conflict
16 with any rules promulgated by the department that are
17 necessary to maintain a federally delegated or approved
18 program.
19 4. Projects which reduce the phosphorus load
20 originating from domestic wastewater systems within the Lake
21 Okeechobee watershed shall be given funding priority in the
22 department's revolving loan program under s. 403.1835. The
23 department shall coordinate and provide assistance to those
24 local governments seeking financial assistance for such
25 priority projects.
26 5. Projects that make use of private lands, or lands
27 held in trust for Indian tribes, to reduce nutrient loadings
28 or concentrations within a basin by one or more of the
29 following methods: restoring the natural hydrology of the
30 basin, restoring wildlife habitat or impacted wetlands,
31 reducing peak flows after storm events, increasing aquifer
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1 recharge, or protecting range and timberland from conversion
2 to development, are eligible for grants available under this
3 section from the coordinating agencies. For projects of
4 otherwise equal priority, special funding priority will be
5 given to those projects that make best use of the methods
6 outlined above that involve public-private partnerships or
7 that obtain federal match money. Preference ranking above the
8 special funding priority will be given to projects located in
9 a rural area of critical economic concern designated by the
10 Governor. Grant applications may be submitted by any person or
11 tribal entity, and eligible projects may include, but are not
12 limited to, the purchase of conservation and flowage
13 easements, hydrologic restoration of wetlands, creating
14 treatment wetlands, development of a management plan for
15 natural resources, and financial support to implement a
16 management plan.
17 6.a. The department shall require all entities
18 disposing of domestic wastewater residuals within the Lake
19 Okeechobee watershed and the remaining areas of Okeechobee,
20 Glades, and Hendry Counties to develop and submit to the
21 department an agricultural use plan that limits applications
22 based upon phosphorus loading. By July 1, 2005, phosphorus
23 concentrations originating from these application sites shall
24 not exceed the limits established in the district's WOD
25 program.
26 b. Private and government-owned utilities within
27 Monroe, Dade, Broward, Palm Beach, Martin, St. Lucie, Indian
28 River, Okeechobee, Highlands, Hendry, and Glades Counties that
29 dispose of wastewater residual sludge from utility operations
30 and septic removal by land spreading in the Lake Okeechobee
31 watershed may use a line item on local sewer rates to cover
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1 wastewater residual treatment and disposal if such disposal
2 and treatment is done by approved alternative treatment
3 methodology at a facility located within the areas designated
4 by the Governor as rural areas of critical economic concern
5 pursuant to s. 288.0656. This additional line item is an
6 environmental protection disposal fee above the present sewer
7 rate and shall not be considered a part of the present sewer
8 rate to customers, notwithstanding provisions to the contrary
9 in chapter 367. The fee shall be established by the county
10 commission or its designated assignee in the county in which
11 the alternative method treatment facility is located. The fee
12 shall be calculated to be no higher than that necessary to
13 recover the facility's prudent cost of providing the service.
14 Upon request by an affected county commission, the Florida
15 Public Service Commission will provide assistance in
16 establishing the fee. Further, for utilities and utility
17 authorities that use the additional line item environmental
18 protection disposal fee, such fee shall not be considered a
19 rate increase under the rules of the Public Service Commission
20 and shall be exempt from such rules. Utilities using the
21 provisions of this section may immediately include in their
22 sewer invoicing the new environmental protection disposal fee.
23 Proceeds from this environmental protection disposal fee shall
24 be used for treatment and disposal of wastewater residuals,
25 including any treatment technology that helps reduce the
26 volume of residuals that require final disposal, but such
27 proceeds shall not be used for transportation or shipment
28 costs for disposal or any costs relating to the land
29 application of residuals in the Lake Okeechobee watershed.
30 c. No less frequently than once every 3 years, the
31 Florida Public Service Commission or the county commission
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1 through the services of an independent auditor shall perform a
2 financial audit of all facilities receiving compensation from
3 an environmental protection disposal fee. The Florida Public
4 Service Commission or the county commission through the
5 services of an independent auditor shall also perform an audit
6 of the methodology used in establishing the environmental
7 protection disposal fee. The Florida Public Service Commission
8 or the county commission shall, within 120 days after
9 completion of an audit, file the audit report with the
10 President of the Senate and the Speaker of the House of
11 Representatives and shall provide copies to the county
12 commissions of the counties set forth in sub-subparagraph b.
13 The books and records of any facilities receiving compensation
14 from an environmental protection disposal fee shall be open to
15 the Florida Public Service Commission and the Auditor General
16 for review upon request.
17 7. The Department of Health shall require all entities
18 disposing of septage within the Lake Okeechobee watershed and
19 the remaining areas of Okeechobee, Glades, and Hendry Counties
20 to develop and submit to that agency, by July 1, 2003, an
21 agricultural use plan that limits applications based upon
22 phosphorus loading. By July 1, 2005, phosphorus concentrations
23 originating from these application sites shall not exceed the
24 limits established in the district's WOD program.
25 8. The Department of Agriculture and Consumer Services
26 shall initiate rulemaking requiring entities within the Lake
27 Okeechobee watershed and the remaining areas of Okeechobee,
28 Glades, and Hendry Counties which land-apply animal manure to
29 develop conservation or nutrient management plans that limit
30 application, based upon phosphorus loading. Such rules may
31 include criteria and thresholds for the requirement to develop
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1 a conservation or nutrient management plan, requirements for
2 plan approval, and recordkeeping requirements.
3 9. Prior to authorizing a discharge into works of the
4 district, the district shall require responsible parties to
5 demonstrate that proposed changes in land use will not result
6 in increased phosphorus loading over that of existing land
7 uses.
8 10. The district, the department, or the Department of
9 Agriculture and Consumer Services, as appropriate, shall
10 implement those alternative nutrient reduction technologies
11 determined to be feasible pursuant to subparagraph (d)6.
12 Section 3. Subsection (1) of section 570.085, Florida
13 Statutes, is amended to read:
14 570.085 Department of Agriculture and Consumer
15 Services; agricultural water conservation.--The department
16 shall establish an agricultural water conservation program
17 that includes the following:
18 (1) A cost-share program, coordinated where
19 appropriate with the United States Department of Agriculture
20 and other federal, state, regional, and local agencies, for
21 irrigation system retrofit and application of mobile
22 irrigation laboratory evaluations for water conservation as
23 provided in this section and, where applicable, for water
24 quality improvement pursuant to s. 403.067(7)(c)(d).
25 Section 4. This act shall take effect upon becoming a
26 law.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 2322
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4 Committee Substitute for Senate Bill 2322 is different from
Senate Bill 2322 in that it:
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1. Clarifies that load allocations will be established for
6 the purpose of achieving water quality standards and
requires basin management action plans to include a
7 monitoring component for evaluating progress in improving
water quality.
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2. Provides that total maximum daily load implementation
9 will be accomplished within the structure of existing
Department of Environmental Protection water quality
10 programs.
11 3. Makes clarifying and technical changes.
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