CS/CS/HB 197

1
A bill to be entitled
2An act relating to surface water protection programs;
3amending s. 373.414, F.S.; providing for the regulation of
4peat mines in certain wetlands; providing legislative
5intent; providing definitions; providing specific rule
6authority to the Department of Environmental Protection;
7providing applicability of variance provisions for
8activities in surface waters and wetlands in the Northwest
9Florida Water Management District; amending s. 373.4142,
10F.S.; providing an exemption for certain water quality
11standards in the Northwest Florida Water Management
12District; amending s. 373.459, F.S.; exempting the
13Suwannee River Water Management District, the Northwest
14Florida Water Management District, and specified local
15governments from certain funding requirements for the
16implementation of surface water improvement and management
17projects; eliminating provisions subject to expiration for
18the deposit, expenditure, release, and transfer of funds
19relating to the Ecosystem Restoration and Management Trust
20Fund and the Water Protection and Sustainability Trust
21Fund; amending s. 373.4595, F.S.; authorizing the
22Department of Environmental Protection and the South
23Florida Water Management District to adopt basin-specific
24criteria under the Lake Okeechobee Watershed Phosphorus
25Control Program; eliminating certain requirements for the
26authorization of discharges related to proposed changes in
27land use; amending s. 378.403, F.S.; revising definitions
28relating to the regulation of surface waters; defining the
29term "peat"; amending s. 378.503, F.S.; conforming
30provisions; amending s. 378.804, F.S.; revising the
31exemption provided to certain mine operators from the
32requirement to notify the secretary of the department when
33beginning to mine certain substances; repealing s.
34403.265, F.S.; relating to the permitting of peat mining;
35providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  Paragraph (e) is added to subsection (6) of
40section 373.414, Florida Statutes, and subsection (17) of that
41section is amended to read:
42     373.414  Additional criteria for activities in surface
43waters and wetlands.--
44     (6)
45     (e)  The Legislature recognizes that the state's
46horticultural industry contributes to the economic strength of
47Florida and that high-quality peat is a limited resource that is
48an important component of horticultural production. The
49Legislature further recognizes that obtaining high-quality peat
50typically and uniquely requires the mining of wetlands and other
51surface waters and that the use of recycled and renewable
52material to replace or reduce the use of natural peat is
53necessary for the future of the horticultural industry.
54     1.  As used in this paragraph, the term:
55     a.  "High-quality peat" means peat from a freshwater
56herbaceous wetland that grades H1 to H4 on the von Post
57Humification Scale and has a pH less than 7.
58     b.  "Horticultural industry" means the industry that
59cultivates plants, including, but not limited to, trees, shrubs,
60flowers, annuals, perennials, tropical foliage, liners, ferns,
61vines, bulbs, grafts, scions, or buds, but excludes turf grasses
62grown or kept for or capable of propagation or distribution for
63retail, wholesale, or rewholesale purposes.
64     2.  The department shall develop rules for permitting and
65mitigation of peat mines in herbaceous or historically
66herbaceous wetlands where high-quality peat is extracted
67predominately for use in the horticultural industry provided:
68     a.  The permitting and mitigation rules shall be applicable
69where no less than 80 percent of the extracted peat is high-
70quality peat and 80 percent of the high-quality peat is used by
71the horticultural industry in products that incorporate other
72renewable or recycled materials to replace or reduce the use of
73natural peat;
74     b.  No extraction is occurring in the underlying sand or
75rock strata;
76     c.  No portion of the extraction or mitigation area is part
77of an existing or proposed larger plan of development; and
78     d.  No portion of the mine is located in a body of water
79designated as Outstanding Florida Waters.
80     3.  In adopting rules as directed in subparagraph 2.,
81design modifications shall not be required to reduce or
82eliminate adverse impacts to herbaceous wetlands that score
83below a specific value, as provided by rule using the uniform
84mitigation assessment method of evaluation, except to require
85that the project meet water quality standards, not cause adverse
86offsite flooding, not adversely impact significant historical
87and archeological resources pursuant to s. 267.061, and not
88cause adverse impacts to listed species or their habitats. In
89assessing mitigation for mines that are not required to reduce
90or eliminate adverse impacts, retaining a percentage of the
91reclaimed wetland as open water shall be deemed appropriate
92wetland mitigation. The rules must establish the amount of open
93water allowable as mitigation based upon a consideration of the
94type and amount of other wetland mitigation proposed, the value
95of those wetlands as evaluated using the uniform mitigation
96assessment method, and the amount of preservation of wetlands.
97The amount of open water shall not exceed 60 percent of the
98premining wetlands within the extracted area.
99     4.  Rule 62-345.600, Florida Administrative Code, shall not
100be applied to mitigation for mines qualifying under this
101paragraph.
102     5.  The department shall initiate rulemaking within 90 days
103after July 1, 2007, and water management districts may implement
104the proposed rules without adoption pursuant to s. 120.54.
105     (17)  The variance provisions of s. 403.201 are applicable
106to the provisions of this section or any rule adopted pursuant
107to this section hereto. The governing boards and the department
108are authorized to review and take final agency action on
109petitions requesting such variances for those activities they
110regulate under this part and s. 373.4145.
111     Section 2.  Section 373.4142, Florida Statutes, is amended
112to read:
113     373.4142  Water quality within stormwater treatment
114systems.--State surface water quality standards applicable to
115waters of the state, as defined in s. 403.031(13), shall not
116apply within a stormwater management system which is designed,
117constructed, operated, and maintained for stormwater treatment
118in accordance with a valid permit or noticed exemption issued
119pursuant to chapter 62-25 17-25, Florida Administrative Code; a
120valid permit or exemption under s. 373.4145 within the Northwest
121Florida Water Management District; a valid permit issued on or
122subsequent to April 1, 1986, within the Suwannee River Water
123Management District or the St. Johns River Water Management
124District pursuant to this part; a valid permit issued on or
125subsequent to March 1, 1988, within the Southwest Florida Water
126Management District pursuant to this part; or a valid permit
127issued on or subsequent to January 6, 1982, within the South
128Florida Water Management District pursuant to this part. Such
129inapplicability of state water quality standards shall be
130limited to that part of the stormwater management system located
131upstream of a manmade water control structure permitted, or
132approved under a noticed exemption, to retain or detain
133stormwater runoff in order to provide treatment of the
134stormwater. The additional use of such a stormwater management
135system for flood attenuation or irrigation shall not divest the
136system of the benefits of this exemption. This section shall not
137affect the authority of the department and water management
138districts to require reasonable assurance that the water quality
139within such stormwater management systems will not adversely
140impact public health, fish and wildlife, or adjacent waters.
141     Section 3.  Subsection (6) of section 373.459, Florida
142Statutes, is amended to read:
143     373.459  Funds for surface water improvement and
144management.--
145     (6)(a)  The match requirement of subsection (2) shall not
146apply to the Suwannee River Water Management District, the
147Northwest Florida Water Management District, or a financially
148disadvantaged small local government as defined in s. 403.885(3)
149403.885(5).
150     (b)  Notwithstanding the requirements of subsection (3),
151the Ecosystem Management and Restoration Trust Fund and the
152Water Protection and Sustainability Trust Fund shall be used for
153the deposit of funds appropriated by the Legislature for the
154purposes of ss. 373.451-373.4595. The department shall
155administer all funds appropriated to or received for surface
156water improvement and management activities. Expenditure of the
157moneys shall be limited to the costs of details planning and
158plan and program implementation for priority surface water
159bodies. Moneys from the funds shall not be expended for planning
160for, or construction or expansion of, treatment facilities for
161domestic or industrial waste disposal.
162     (c)  Notwithstanding the requirements of subsection (4),
163the department shall authorize the release of money from the
164funds in accordance with the provisions of s. 373.501(2) and
165procedures in s. 373.59(4) and (5).
166     (d)  Notwithstanding the requirements of subsection (5),
167moneys in the Ecosystem Restoration and Management Trust Fund
168that are not needed to meet current obligations incurred under
169this section shall be transferred to the State Board of
170Administration, to the credit of the trust fund, to be invested
171in the manner provided by law. Interest received on such
172investments shall be credited to the trust fund.
173     (e)  This subsection expires July 1, 2007.
174     Section 4.  Paragraph (c) of subsection (3) of section
175373.4595, Florida Statutes, is amended to read:
176     373.4595  Lake Okeechobee Protection Program.--
177     (3)  LAKE OKEECHOBEE PROTECTION PROGRAM.--A protection
178program for Lake Okeechobee that achieves phosphorus load
179reductions for Lake Okeechobee shall be immediately implemented
180as specified in this subsection. The program shall address the
181reduction of phosphorus loading to the lake from both internal
182and external sources. Phosphorus load reductions shall be
183achieved through a phased program of implementation. Initial
184implementation actions shall be technology-based, based upon a
185consideration of both the availability of appropriate technology
186and the cost of such technology, and shall include phosphorus
187reduction measures at both the source and the regional level.
188The initial phase of phosphorus load reductions shall be based
189upon the district's Technical Publication 81-2 and the
190district's WOD program, with subsequent phases of phosphorus
191load reductions based upon the total maximum daily loads
192established in accordance with s. 403.067. In the development
193and administration of the Lake Okeechobee Protection Program,
194the coordinating agencies shall maximize opportunities provided
195by federal cost-sharing programs and opportunities for
196partnerships with the private sector.
197     (c)  Lake Okeechobee Watershed Phosphorus Control
198Program.--The Lake Okeechobee Watershed Phosphorus Control
199Program is designed to be a multifaceted approach to reducing
200phosphorus loads by improving the management of phosphorus
201sources within the Lake Okeechobee watershed through continued
202implementation of existing regulations and best management
203practices, development and implementation of improved best
204management practices, improvement and restoration of the
205hydrologic function of natural and managed systems, and
206utilization of alternative technologies for nutrient reduction.
207The coordinating agencies shall facilitate the application of
208federal programs that offer opportunities for water quality
209treatment, including preservation, restoration, or creation of
210wetlands on agricultural lands.
211     1.  Agricultural nonpoint source best management practices,
212developed in accordance with s. 403.067 and designed to achieve
213the objectives of the Lake Okeechobee Protection Program, shall
214be implemented on an expedited basis. The coordinating agencies
215shall develop an interagency agreement pursuant to ss. 373.046
216and 373.406(5) that assures the development of best management
217practices that complement existing regulatory programs and
218specifies how those best management practices are implemented
219and verified. The interagency agreement shall address measures
220to be taken by the coordinating agencies during any best
221management practice reevaluation performed pursuant to sub-
222subparagraph d. The department shall use best professional
223judgment in making the initial determination of best management
224practice effectiveness.
225     a.  As provided in s. 403.067(7)(c), the Department of
226Agriculture and Consumer Services, in consultation with the
227department, the district, and affected parties, shall initiate
228rule development for interim measures, best management
229practices, conservation plans, nutrient management plans, or
230other measures necessary for Lake Okeechobee phosphorus load
231reduction. The rule shall include thresholds for requiring
232conservation and nutrient management plans and criteria for the
233contents of such plans. Development of agricultural nonpoint
234source best management practices shall initially focus on those
235priority basins listed in subparagraph (b)1. The Department of
236Agriculture and Consumer Services, in consultation with the
237department, the district, and affected parties, shall conduct an
238ongoing program for improvement of existing and development of
239new interim measures or best management practices for the
240purpose of adoption of such practices by rule.
241     b.  Where agricultural nonpoint source best management
242practices or interim measures have been adopted by rule of the
243Department of Agriculture and Consumer Services, the owner or
244operator of an agricultural nonpoint source addressed by such
245rule shall either implement interim measures or best management
246practices or demonstrate compliance with the district's WOD
247program by conducting monitoring prescribed by the department or
248the district. Owners or operators of agricultural nonpoint
249sources who implement interim measures or best management
250practices adopted by rule of the Department of Agriculture and
251Consumer Services shall be subject to the provisions of s.
252403.067(7). The Department of Agriculture and Consumer Services,
253in cooperation with the department and the district, shall
254provide technical and financial assistance for implementation of
255agricultural best management practices, subject to the
256availability of funds.
257     c.  The district or department shall conduct monitoring at
258representative sites to verify the effectiveness of agricultural
259nonpoint source best management practices.
260     d.  Where water quality problems are detected for
261agricultural nonpoint sources despite the appropriate
262implementation of adopted best management practices, the
263Department of Agriculture and Consumer Services, in consultation
264with the other coordinating agencies and affected parties, shall
265institute a reevaluation of the best management practices and
266make appropriate changes to the rule adopting best management
267practices.
268     2.  Nonagricultural nonpoint source best management
269practices, developed in accordance with s. 403.067 and designed
270to achieve the objectives of the Lake Okeechobee Protection
271Program, shall be implemented on an expedited basis. The
272department and the district shall develop an interagency
273agreement pursuant to ss. 373.046 and 373.406(5) that assures
274the development of best management practices that complement
275existing regulatory programs and specifies how those best
276management practices are implemented and verified. The
277interagency agreement shall address measures to be taken by the
278department and the district during any best management practice
279reevaluation performed pursuant to sub-subparagraph d.
280     a.  The department and the district are directed to work
281with the University of Florida's Institute of Food and
282Agricultural Sciences to develop appropriate nutrient
283application rates for all nonagricultural soil amendments in the
284watershed. As provided in s. 403.067(7)(c), the department, in
285consultation with the district and affected parties, shall
286develop interim measures, best management practices, or other
287measures necessary for Lake Okeechobee phosphorus load
288reduction. Development of nonagricultural nonpoint source best
289management practices shall initially focus on those priority
290basins listed in subparagraph (b)1. The department, the
291district, and affected parties shall conduct an ongoing program
292for improvement of existing and development of new interim
293measures or best management practices. The district shall adopt
294technology-based standards under the district's WOD program for
295nonagricultural nonpoint sources of phosphorus. Nothing in this
296sub-subparagraph shall affect the authority of the department or
297the district to adopt basin-specific criteria under this part to
298prevent harm to the water resources of the district.
299     b.  Where nonagricultural nonpoint source best management
300practices or interim measures have been developed by the
301department and adopted by the district, the owner or operator of
302a nonagricultural nonpoint source shall implement interim
303measures or best management practices and be subject to the
304provisions of s. 403.067(7). The department and district shall
305provide technical and financial assistance for implementation of
306nonagricultural nonpoint source best management practices,
307subject to the availability of funds.
308     c.  The district or the department shall conduct monitoring
309at representative sites to verify the effectiveness of
310nonagricultural nonpoint source best management practices.
311     d.  Where water quality problems are detected for
312nonagricultural nonpoint sources despite the appropriate
313implementation of adopted best management practices, the
314department and the district shall institute a reevaluation of
315the best management practices.
316     3.  The provisions of subparagraphs 1. and 2. shall not
317preclude the department or the district from requiring
318compliance with water quality standards or with current best
319management practices requirements set forth in any applicable
320regulatory program authorized by law for the purpose of
321protecting water quality. Additionally, subparagraphs 1. and 2.
322are applicable only to the extent that they do not conflict with
323any rules promulgated by the department that are necessary to
324maintain a federally delegated or approved program.
325     4.  Projects which reduce the phosphorus load originating
326from domestic wastewater systems within the Lake Okeechobee
327watershed shall be given funding priority in the department's
328revolving loan program under s. 403.1835. The department shall
329coordinate and provide assistance to those local governments
330seeking financial assistance for such priority projects.
331     5.  Projects that make use of private lands, or lands held
332in trust for Indian tribes, to reduce nutrient loadings or
333concentrations within a basin by one or more of the following
334methods: restoring the natural hydrology of the basin, restoring
335wildlife habitat or impacted wetlands, reducing peak flows after
336storm events, increasing aquifer recharge, or protecting range
337and timberland from conversion to development, are eligible for
338grants available under this section from the coordinating
339agencies. For projects of otherwise equal priority, special
340funding priority will be given to those projects that make best
341use of the methods outlined above that involve public-private
342partnerships or that obtain federal match money. Preference
343ranking above the special funding priority will be given to
344projects located in a rural area of critical economic concern
345designated by the Governor. Grant applications may be submitted
346by any person or tribal entity, and eligible projects may
347include, but are not limited to, the purchase of conservation
348and flowage easements, hydrologic restoration of wetlands,
349creating treatment wetlands, development of a management plan
350for natural resources, and financial support to implement a
351management plan.
352     6.a.  The department shall require all entities disposing
353of domestic wastewater residuals within the Lake Okeechobee
354watershed and the remaining areas of Okeechobee, Glades, and
355Hendry Counties to develop and submit to the department an
356agricultural use plan that limits applications based upon
357phosphorus loading. By July 1, 2005, phosphorus concentrations
358originating from these application sites shall not exceed the
359limits established in the district's WOD program.
360     b.  Private and government-owned utilities within Monroe,
361Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River,
362Okeechobee, Highlands, Hendry, and Glades Counties that dispose
363of wastewater residual sludge from utility operations and septic
364removal by land spreading in the Lake Okeechobee watershed may
365use a line item on local sewer rates to cover wastewater
366residual treatment and disposal if such disposal and treatment
367is done by approved alternative treatment methodology at a
368facility located within the areas designated by the Governor as
369rural areas of critical economic concern pursuant to s.
370288.0656. This additional line item is an environmental
371protection disposal fee above the present sewer rate and shall
372not be considered a part of the present sewer rate to customers,
373notwithstanding provisions to the contrary in chapter 367. The
374fee shall be established by the county commission or its
375designated assignee in the county in which the alternative
376method treatment facility is located. The fee shall be
377calculated to be no higher than that necessary to recover the
378facility's prudent cost of providing the service. Upon request
379by an affected county commission, the Florida Public Service
380Commission will provide assistance in establishing the fee.
381Further, for utilities and utility authorities that use the
382additional line item environmental protection disposal fee, such
383fee shall not be considered a rate increase under the rules of
384the Public Service Commission and shall be exempt from such
385rules. Utilities using the provisions of this section may
386immediately include in their sewer invoicing the new
387environmental protection disposal fee. Proceeds from this
388environmental protection disposal fee shall be used for
389treatment and disposal of wastewater residuals, including any
390treatment technology that helps reduce the volume of residuals
391that require final disposal, but such proceeds shall not be used
392for transportation or shipment costs for disposal or any costs
393relating to the land application of residuals in the Lake
394Okeechobee watershed.
395     c.  No less frequently than once every 3 years, the Florida
396Public Service Commission or the county commission through the
397services of an independent auditor shall perform a financial
398audit of all facilities receiving compensation from an
399environmental protection disposal fee. The Florida Public
400Service Commission or the county commission through the services
401of an independent auditor shall also perform an audit of the
402methodology used in establishing the environmental protection
403disposal fee. The Florida Public Service Commission or the
404county commission shall, within 120 days after completion of an
405audit, file the audit report with the President of the Senate
406and the Speaker of the House of Representatives and shall
407provide copies to the county commissions of the counties set
408forth in sub-subparagraph b. The books and records of any
409facilities receiving compensation from an environmental
410protection disposal fee shall be open to the Florida Public
411Service Commission and the Auditor General for review upon
412request.
413     7.  The Department of Health shall require all entities
414disposing of septage within the Lake Okeechobee watershed and
415the remaining areas of Okeechobee, Glades, and Hendry Counties
416to develop and submit to that agency an agricultural use plan
417that limits applications based upon phosphorus loading. By July
4181, 2005, phosphorus concentrations originating from these
419application sites shall not exceed the limits established in the
420district's WOD program.
421     8.  The Department of Agriculture and Consumer Services
422shall initiate rulemaking requiring entities within the Lake
423Okeechobee watershed and the remaining areas of Okeechobee,
424Glades, and Hendry Counties which land-apply animal manure to
425develop conservation or nutrient management plans that limit
426application, based upon phosphorus loading. Such rules may
427include criteria and thresholds for the requirement to develop a
428conservation or nutrient management plan, requirements for plan
429approval, and recordkeeping requirements.
430     9.  Prior to authorizing a discharge into works of the
431district, the district shall require responsible parties to
432demonstrate that proposed changes in land use will not result in
433increased phosphorus loading over that of existing land uses.
434     9.10.  The district, the department, or the Department of
435Agriculture and Consumer Services, as appropriate, shall
436implement those alternative nutrient reduction technologies
437determined to be feasible pursuant to subparagraph (d)6.
438     Section 5.  Section 378.403, Florida Statutes, is amended
439to read:
440     378.403  Definitions.--As used in this part, the term:
441     (1)  "Agency" means an official, committee, department,
442commission, officer, division, authority, bureau, council,
443board, section, or unit of government within the state,
444including a county, municipal, or other local or regional entity
445or special district.
446     (2)  "Annual report" means a detailed report, including
447maps and aerial photographs, submitted for each mine, which
448describes and delineates mining operations and reclamation or
449restoration activities undertaken in the previous calendar year.
450     (3)  "Department" means the Department of Environmental
451Protection.
452     (4)  "Existing mine" means any area upon which an operation
453is being conducted, or has been conducted, on October 1, 1986.
454     (5)  "Extraction" or "resource extraction" means the
455removal of resources from their location so as to make them
456suitable for commercial, industrial, or construction use; but
457does not include excavation solely in aid of onsite farming or
458onsite construction, nor the process of searching, prospecting,
459exploring, or investigating for resources by drilling.
460     (6)  "Fuller's earth clay" means clay possessing a high
461absorptive capacity consisting largely of montmorillonite or
462palygorskite. Fuller's earth clay includes attapulgite.
463     (7)  "Heavy minerals" means those resources found in
464conjunction with sand deposits which have a specific gravity of
465not less than 2.8, and includes an admixture of such resources
466as zircon, staurolite, and titanium minerals as generally mined
467in this state.
468     (8)  "Limestone" means any extracted material composed
469principally of calcium or magnesium carbonate.
470     (9)  "Local government" means any county or municipality.
471     (10)  "Mine" means an area of land upon which mining
472operations have been conducted, are being conducted, or are
473planned to be conducted, as the term is commonly used in the
474trade.
475     (11)  "New mine" means any mine that is not an existing
476mine.
477     (12)  "Operation" means any activity, other than
478prospecting, necessary for site preparation, extraction, waste
479disposal, storage, or reclamation.
480     (13)  "Operator" means any person engaged in an operation.
481     (14)  "Overburden" means soil and rock removed to gain
482access to the resource in the process of extraction and means
483such soil or rock before or after its removal.
484     (15)  "Peat" means a naturally occurring substance derived
485primarily from plant materials in a range of decomposing
486conditions and formed in a water-saturated environment.
487     (16)(15)  "Reclamation" means the reasonable rehabilitation
488of land where resource extraction has occurred.
489     (17)(16)  "Resource" means soil, clay, peat, stone, gravel,
490sand, limerock, metallic ore, or any other solid substance of
491commercial value found in natural deposits on or in the earth,
492except phosphate, which is regulated by part III.
493     (18)(17)  "Secretary" means the Secretary of Environmental
494Protection.
495     (19)(18)  "Wetlands" means any area as defined in s.
496373.019, as delineated using the methodology adopted by rule and
497ratified pursuant to s. 373.421(1). For areas included in an
498approved conceptual reclamation plan or modification application
499submitted prior to July 1, 1994, wetlands means any area having
500dominant vegetation as defined and listed in rule 67-301.200
501Department of Environmental Regulation rule 17-4.022, Florida
502Administrative Code, regardless of whether the area is within
503the department's Department of Environmental Regulation's
504jurisdiction or whether the water bodies are connected.
505     Section 6.  Paragraph (d) of subsection (7) of section
506378.503, Florida Statutes, is amended to read:
507     378.503  Limestone reclamation performance standards.--
508     (7)  Resource extraction which results in a water body
509shall provide one of the following shoreline treatments:
510     (d)  Slope requirements of the United States Army Corps of
511Engineers or the department under part IV of chapter 373 of
512Environmental Regulation under the Warren S. Henderson Wetlands
513Protection Act of 1984.
514     Section 7.  Section 378.804, Florida Statutes, is amended
515to read:
516     378.804  Exemption.--Any operator who extracts resources
517from 1 acre or less at any one site in a given year, not to
518exceed 20 5 acres over the life of the mine, or who extracts
519peat for agricultural purposes is exempt from the provisions of
520s. 378.801.
521     Section 8.  Section 403.265, Florida Statutes, is repealed.
522     Section 9.  This act shall take effect July 1, 2007.


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