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A bill to be entitled

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An act relating to water pollution control; amending s.

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403.067, F.S.; providing requirements for basin management

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action plans; allowing such plans to take into account the

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benefits of pollutant load reduction achieved by point or

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nonpoint sources, where appropriate; requiring that the

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Department of Environmental Protection adopt all or part

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of any such plan, or any amendment thereto, by secretarial

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order as provided by state law; providing that the

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provisions of the department's rule relating to the

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equitable abatement of pollutants into surface waters may

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not be applied to water bodies or water body segments for

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which a basin management plan that takes into account

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future or new expanded activities or discharges has been

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adopted; authorizing water quality protection programs to

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include the trading of water quality credits; authorizing

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the department to adopt rules related to the trading of

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water quality credits; requiring that such rulemaking

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include certain provisions; specifying basins within which

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the trading of water quality credits shall be authorized;

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requiring that the department provide the Legislature with

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an annual report regarding the status of the trading

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program; correcting cross-references to conform to changes

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made by the act; amending s. 403.088, F.S.; authorizing

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the department to revise a water pollution operation

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permit under certain circumstances; authorizing the

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department to revise, renew, issue, or reissue such a

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permit if a water quality credit trade that meets the

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requirements of a total maximum daily load allocation has

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been approved in a final order issued pursuant to state

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law; requiring that revised permits be accompanied by an

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order establishing a schedule for achieving compliance

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with all permit conditions; providing an effective date.

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

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     Section 1.  Subsections (7) and (8) of section 403.067,

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Florida Statutes, are amended to read:

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     403.067  Establishment and implementation of total maximum

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daily loads.--

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     (7)  DEVELOPMENT OF BASIN MANAGEMENT PLANS AND

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IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.--

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     (a)  Basin management action plans.--

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     1.  In developing and implementing the total maximum daily

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load for a water body, the department, or the department in

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conjunction with a water management district, may develop a basin

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management action plan that addresses some or all of the

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watersheds and basins tributary to the water body. Such a plan

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must shall integrate the appropriate management strategies

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available to the state through existing water quality protection

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programs to achieve the total maximum daily loads and may provide

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for phased implementation of these management strategies to

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promote timely, cost-effective actions as provided for in s.

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403.151. The plan must shall establish a schedule for

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implementing the management strategies, establish a basis for

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evaluating the plan's effectiveness, and identify feasible

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funding strategies for implementing the plan's management

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strategies. The management strategies may include regional

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treatment systems or other public works, where appropriate, and,

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in basins listed in paragraph (8)(f) for which a basin management

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action plan has been adopted, voluntary trading of water quality

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credits to achieve the needed pollutant load reductions.

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     2. A basin management action plan must shall equitably

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allocate, pursuant to paragraph (6)(b), pollutant reductions to

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individual basins, as a whole to all basins, or to each

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identified point source or category of nonpoint sources, as

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appropriate. For nonpoint sources for which best management

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practices have been adopted, the initial requirement specified by

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the plan must shall be those practices developed pursuant to

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paragraph (c). In accordance with procedures adopted by rule

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under paragraph (8)(c), plans for basins listed in paragraph

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(8)(f) must allow point or nonpoint sources that will achieve

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greater pollutant reductions than required by an adopted total

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maximum load or wasteload allocation to generate, register, and

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trade water quality credits for the excess reductions to enable

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other sources to achieve their allocation if the generation of

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water quality credits does not remove the obligation of a source

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or activity to meet applicable technology requirements or adopted

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best-management practices. Such plans must allow trading between

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NPDES permittees, and trading that may or may not involve NPDES

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permittees, where the generation or use of the credits involve an

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entity or activity not subject to department water discharge

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permits whose owner voluntarily elects to become subject to the

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requirements of this section. Where appropriate, the plan may

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take into account the benefits of provide pollutant load

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reduction achieved by point or nonpoint sources credits to

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dischargers that have implemented management strategies to reduce

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pollutant loads, including best management practices, prior to

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the development of the basin management action plan. The plan

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must shall also identify the mechanisms that will address by

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which potential future increases in pollutant loading will be

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addressed.

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     3.  The basin management action planning process is intended

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to involve the broadest possible range of interested parties,

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with the objective of encouraging the greatest amount of

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cooperation and consensus possible. In developing a basin

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management action plan, the department shall assure that key

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stakeholders, including, but not limited to, applicable local

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governments, water management districts, the Department of

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Agriculture and Consumer Services, other appropriate state

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agencies, local soil and water conservation districts,

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environmental groups, regulated interests, and affected pollution

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sources, are invited to participate in the process. The

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department shall hold at least one public meeting in the vicinity

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of the watershed or basin to discuss and receive comments during

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the planning process and shall otherwise encourage public

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participation to the greatest practicable extent. Notice of the

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public meeting must shall be published in a newspaper of general

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circulation in each county in which the watershed or basin lies

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

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meeting. A basin management action plan shall not supplant or

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otherwise alter any assessment made under subsection (3) or

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subsection (4) or any calculation or initial allocation.

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     4.  The department shall adopt all or any part of a basin

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management action plan and any amendment to such plan by

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secretarial order pursuant to chapter 120 to implement the

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provisions of this section.

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     5. The basin management action plan must shall include

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milestones for implementation and water quality improvement, and

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an associated water quality monitoring component sufficient to

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evaluate whether reasonable progress in pollutant load reductions

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is being achieved over time. An assessment of progress toward

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these milestones shall be conducted every 5 years, and revisions

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to the plan shall be made as appropriate. Revisions to the basin

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management action plan shall be made by the department in

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cooperation with basin stakeholders. Revisions to the management

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strategies required for nonpoint sources must shall follow the

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procedures set forth in subparagraph (c)4. Revised basin

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management action plans must shall be adopted pursuant to

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subparagraph 4.

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     6. The provisions of the department's rule relating to the

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equitable abatement of pollutants into surface waters may not be

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applied to water bodies or water body segments for which a basin

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management plan that takes into account future new or expanded

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activities or discharges has been adopted pursuant to this

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section.

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     (b)  Total maximum daily load implementation.--

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     1.  The department shall be the lead agency in coordinating

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the implementation of the total maximum daily loads through

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existing water quality protection programs. Application of a

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total maximum daily load by a water management district must

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shall be consistent with this section and shall not require the

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issuance of an order or a separate action pursuant to s.

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120.536(1) or s. 120.54 for the adoption of the calculation and

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allocation previously established by the department. Such

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programs may include, but are not limited to:

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     a.  Permitting and other existing regulatory programs,

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including water-quality-based effluent limitations;

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     b.  Nonregulatory and incentive-based programs, including

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best management practices, cost sharing, waste minimization,

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pollution prevention, agreements established pursuant to s.

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403.061(21), and public education;

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     c.  Other water quality management and restoration

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activities, for example surface water improvement and management

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plans approved by water management districts or basin management

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action plans developed pursuant to this subsection;

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     d. Trading of water quality credits Pollutant trading or

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other equitable economically based agreements;

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     e.  Public works including capital facilities; or

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     f.  Land acquisition.

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     2.  For a basin management action plan adopted pursuant to

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paragraph (a) subparagraph (a)4., any management strategies and

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pollutant reduction requirements associated with a pollutant of

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concern for which a total maximum daily load has been developed,

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including effluent limits set forth for a discharger subject to

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NPDES permitting, if any, must shall be included in a timely

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manner in subsequent NPDES permits or permit modifications for

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that discharger. The department shall not impose limits or

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conditions implementing an adopted total maximum daily load in an

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NPDES permit until the permit expires, the discharge is modified,

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or the permit is reopened pursuant to an adopted basin management

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action plan.

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     a.  Absent a detailed allocation, total maximum daily loads

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shall be implemented through NPDES permit conditions that provide

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for afford a compliance schedule. In such instances, a facility's

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NPDES permit must shall allow time for the issuance of an order

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adopting the basin management action plan. The time allowed for

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the issuance of an order adopting the plan may shall not exceed 5

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years. Upon issuance of an order adopting the plan, the permit

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must shall be reopened, as necessary, and permit conditions

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consistent with the plan must shall be established.

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Notwithstanding the other provisions of this subparagraph, upon

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request by a NPDES permittee, the department as part of a permit

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issuance, renewal, or modification may establish individual

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allocations prior to the adoption of a basin management action

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plan.

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     b.  For holders of NPDES municipal separate storm sewer

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system permits and other stormwater sources, implementation of a

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total maximum daily load or basin management action plan must

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shall be achieved, to the maximum extent practicable, through the

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use of best management practices or other management measures.

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     c.  The basin management action plan does not relieve the

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discharger from any requirement to obtain, renew, or modify an

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NPDES permit or to abide by other requirements of the permit.

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     d.  Management strategies set forth in a basin management

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action plan to be implemented by a discharger subject to

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permitting by the department must shall be completed pursuant to

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the schedule set forth in the basin management action plan. This

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implementation schedule may extend beyond the 5-year term of an

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NPDES permit.

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     e.  Management strategies and pollution reduction

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requirements set forth in a basin management action plan for a

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specific pollutant of concern shall not be subject to challenge

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under chapter 120 at the time they are incorporated, in an

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identical form, into a subsequent NPDES permit or permit

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modification.

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     f.  For nonagricultural pollutant sources not subject to

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NPDES permitting but permitted pursuant to other state, regional,

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or local water quality programs, the pollutant reduction actions

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adopted in a basin management action plan shall be implemented to

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the maximum extent practicable as part of those permitting

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programs.

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     g.  A nonpoint source discharger included in a basin

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management action plan must shall demonstrate compliance with the

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pollutant reductions established under pursuant to subsection (6)

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by either implementing the appropriate best management practices

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established pursuant to paragraph (c) or conducting water quality

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monitoring prescribed by the department or a water management

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district.

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     h.  A nonpoint source discharger included in a basin

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management action plan may be subject to enforcement action by

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the department or a water management district based upon a

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failure to implement the responsibilities set forth in sub-

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subparagraph g.

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     i.  A landowner, discharger, or other responsible person who

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is implementing applicable management strategies specified in an

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adopted basin management action plan may shall not be required by

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permit, enforcement action, or otherwise to implement additional

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management strategies to reduce pollutant loads to attain the

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pollutant reductions established pursuant to subsection (6) and

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shall be deemed to be in compliance with this section. This

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subparagraph does not limit the authority of the department to

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amend a basin management action plan as specified in subparagraph

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(a)5.

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     (c)  Best management practices.--

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     1.  The department, in cooperation with the water management

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districts and other interested parties, as appropriate, may

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develop suitable interim measures, best management practices, or

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other measures necessary to achieve the level of pollution

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reduction established by the department for nonagricultural

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nonpoint pollutant sources in allocations developed pursuant to

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subsection (6) and this subsection. These practices and measures

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may be adopted by rule by the department and the water management

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districts pursuant to ss. 120.536(1) and 120.54, and, where

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adopted by rule, shall be implemented by those parties

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responsible for nonagricultural nonpoint source pollution.

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     2.  The Department of Agriculture and Consumer Services may

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develop and adopt by rule pursuant to ss. 120.536(1) and 120.54

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suitable interim measures, best management practices, or other

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measures necessary to achieve the level of pollution reduction

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established by the department for agricultural pollutant sources

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in allocations developed pursuant to subsection (6) and this

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subsection or for programs implemented pursuant to paragraph

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(11)(b). These practices and measures may be implemented by those

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parties responsible for agricultural pollutant sources and the

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department, the water management districts, and the Department of

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Agriculture and Consumer Services shall assist with

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implementation. In the process of developing and adopting rules

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for interim measures, best management practices, or other

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measures, the Department of Agriculture and Consumer Services

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shall consult with the department, the Department of Health, the

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water management districts, representatives from affected farming

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groups, and environmental group representatives. Such rules must

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shall also incorporate provisions for a notice of intent to

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implement the practices and a system to assure the implementation

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of the practices, including recordkeeping requirements.

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     3.  Where interim measures, best management practices, or

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other measures are adopted by rule, the effectiveness of such

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practices in achieving the levels of pollution reduction

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established in allocations developed by the department pursuant

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to subsection (6) and this subsection or in programs implemented

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pursuant to paragraph (11)(b) must shall be verified at

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representative sites by the department. The department shall use

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best professional judgment in making the initial verification

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that the best management practices are reasonably expected to be

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effective and, where applicable, must shall notify the

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appropriate water management district or the Department of

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Agriculture and Consumer Services of its initial verification

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prior to the adoption of a rule proposed pursuant to this

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paragraph. Implementation, in accordance with rules adopted under

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this paragraph, of practices that have been initially verified to

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be effective, or verified to be effective by monitoring at

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representative sites, by the department, shall provide a

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presumption of compliance with state water quality standards and

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

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addressed by the practices, and the department is not authorized

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to institute proceedings against the owner of the source of

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pollution to recover costs or damages associated with the

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contamination of surface water or groundwater caused by those

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pollutants. Research projects funded by the department, a water

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management district, or the Department of Agriculture and

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Consumer Services to develop or demonstrate interim measures or

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best management practices shall be granted a presumption of

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compliance with state water quality standards and a release from

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the provisions of s. 376.307(5). The presumption of compliance

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and release is shall be limited to the research site and only for

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those pollutants addressed by the interim measures or best

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management practices. Eligibility for the presumption of

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compliance and release is shall be limited to research projects

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on sites where the owner or operator of the research site and the

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department, a water management district, or the Department of

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Agriculture and Consumer Services have entered into a contract or

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other agreement that, at a minimum, specifies the research

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objectives, the cost-share responsibilities of the parties, and a

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schedule that details the beginning and ending dates of the

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project.

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     4.  Where water quality problems are demonstrated, despite

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the appropriate implementation, operation, and maintenance of

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best management practices and other measures required by

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according to rules adopted under this paragraph, the department,

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a water management district, or the Department of Agriculture and

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Consumer Services, in consultation with the department, shall

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institute a reevaluation of the best management practice or other

314

measure. Should the reevaluation determine that the best

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management practice or other measure requires modification, the

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department, a water management district, or the Department of

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Agriculture and Consumer Services, as appropriate, shall revise

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the rule to require implementation of the modified practice

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within a reasonable time period as specified in the rule.

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     5.  Agricultural records relating to processes or methods of

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production, costs of production, profits, or other financial

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information held by the Department of Agriculture and Consumer

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Services pursuant to subparagraphs 3. and 4. or pursuant to any

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rule adopted pursuant to subparagraph 2. are confidential and

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exempt from s. 119.07(1) and s. 24(a), Art. I of the State

326

Constitution. Upon request, records made confidential and exempt

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pursuant to this subparagraph shall be released to the department

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or any water management district if provided that the

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confidentiality specified by this subparagraph for such records

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is maintained.

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     6. The provisions of subparagraphs 1. and 2. do shall not

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preclude the department or water management district from

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requiring compliance with water quality standards or with current

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best management practice requirements set forth in any applicable

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regulatory program authorized by law to protect for the purpose

336

of protecting water quality. Additionally, subparagraphs 1. and

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2. are applicable only to the extent that they do not conflict

338

with any rules adopted by the department which that are necessary

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to maintain a federally delegated or approved program.

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     (8)  RULES.--The department is authorized to adopt rules

341

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

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

343

list developed under subsection (4) pursuant to the guidance

344

under subsection (5).;

345

     (b) Administering Administration of funds to implement the

346

total maximum daily load and basin management action planning

347

programs.;

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     (c) Water quality credit Procedures for pollutant trading

349

among the pollutant sources to a water body or water body segment

350

in basins listed in paragraph (f) shall be authorized by

351

department rule. By July 1, 2008, rulemaking must be initiated

352

which provides for the following:, including a mechanism for the

353

issuance and tracking of pollutant credits. Such procedures may

354

be implemented through permits or other authorizations and must

355

be legally binding. Prior to adopting rules for pollutant trading

356

under this paragraph, and no later than November 30, 2006, the

357

Department of Environmental Protection shall submit a report to

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the Governor, the President of the Senate, and the Speaker of the

359

House of Representatives containing recommendations on such

360

rules, including the proposed basis for equitable economically

361

based agreements and the tracking and accounting of pollution

362

credits or other similar mechanisms. Such recommendations shall

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be developed in cooperation with a technical advisory committee

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that includes experts in pollutant trading and representatives of

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potentially affected parties;

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     1. The process to be used to determine how credits are

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generated, quantified, and validated;

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     2. A publicly accessible water quality credit trading

369

registry that tracks water quality credits and trades and lists

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the prices paid for such credits and that does not allow the

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department to participate in the establishment of such prices;

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     3. Limitations on the availability and use of water quality

373

credits, including a list of eligible pollutants or parameters

374

and limited water quality requirements and, where appropriate,

375

adjustments to reflect best-management practice performance

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uncertainties and water-segment-specific location factors;

377

     4. The timing and duration of credits and allowance for

378

credit transferability; and

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     5. Mechanisms for determining and ensuring compliance with

380

trading procedures, including recordkeeping, monitoring,

381

reporting, and inspections. Generators of traded credits are

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responsible for achieving the load reductions on which the

383

credits are based.

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     (d)  The total maximum daily load calculation in accordance

385

with paragraph (6)(a) immediately upon the effective date of this

386

act, for those eight water segments within Lake Okeechobee proper

387

as submitted to the United States Environmental Protection Agency

388

pursuant to subsection (2).; and

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     (e)  Implementation of other specific provisions.

390

     (f) Basins within which trading shall be authorized under

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paragraph (c) include the Lower St. Johns River Basin, Tampa Bay

392

Basin, and Pensacola Bay Basin. The department shall provide an

393

annual report to the Legislature on the status of the trading

394

program authorized in this section.

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     Section 2.  Paragraphs (e) and (f) of subsection (2) of

396

section 403.088, Florida Statutes, are amended to read:

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     403.088  Water pollution operation permits; conditions.--

398

     (2)

399

     (e)  However, if the discharge will not meet permit

400

conditions or applicable statutes and rules, the department may

401

issue, renew, revise, or reissue the operation permit if:

402

     1.  The applicant is constructing, installing, or placing

403

into operation, or has submitted plans and a reasonable schedule

404

for constructing, installing, or placing into operation, an

405

approved pollution abatement facility or alternative waste

406

disposal system;

407

     2.  The applicant needs permission to pollute the waters

408

within the state for a period of time necessary to complete

409

research, planning, construction, installation, or operation of

410

an approved and acceptable pollution abatement facility or

411

alternative waste disposal system;

412

     3.  There is no present, reasonable, alternative means of

413

disposing of the waste other than by discharging it into the

414

waters of the state;

415

     4.  The granting of an operation permit will be in the

416

public interest; or

417

     5.  The discharge will not be unreasonably destructive to

418

the quality of the receiving waters; or.

419

     6. A water quality credit trade that meets the requirements

420

of a total maximum daily load allocation has been approved in a

421

final order issued under s. 403.067(7)(a)4.

422

     (f) A permit issued, renewed, revised, or reissued pursuant

423

to paragraph (e) shall be accompanied by an order establishing a

424

schedule for achieving compliance with all permit conditions.

425

Such permit may require compliance with the accompanying order.

426

     Section 3.  This act shall take effect July 1, 2008.