1

A bill to be entitled

2

An act relating to water pollution control; amending s.

3

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

4

action plans; allowing such plans to take into account the

5

benefits of pollutant load reduction achieved by point or

6

nonpoint sources, where appropriate; requiring that the

7

Department of Environmental Protection adopt all or part

8

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

9

order as provided by state law; providing that the

10

provisions of the department's rule relating to the

11

equitable abatement of pollutants into surface waters may

12

not be applied to water bodies or water body segments for

13

which a basin management plan that takes into account

14

future or new expanded activities or discharges has been

15

adopted; authorizing water quality protection programs to

16

include the trading of water quality credits; authorizing

17

the department to adopt rules related to the trading of

18

water quality credits; requiring that such rulemaking

19

include certain provisions; specifying that a water

20

quality credit trading pilot project be limited to the

21

Lower St. Johns River Basin as a pilot project; requiring

22

that the department provide the Legislature with an annual

23

report regarding the effectiveness of the pilot project;

24

providing report requirements; providing that the

25

department may authorize and establish specific

26

requirements for water quality credit trading as part of

27

the Lower St. Johns River Basin adopted basin management

28

action plan; correcting cross-references to conform to

29

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

30

authorizing the department to revise a water pollution

31

operation permit under certain circumstances; authorizing

32

the department to issue, renew, or reissue such a permit

33

if a water quality credit trade meets the requirements of

34

403.067, F.S.; requiring that revised permits be

35

accompanied by an order establishing a schedule for

36

achieving compliance with all permit conditions; providing

37

an effective date.

38

39

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

40

41

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

42

Florida Statutes, are amended, present subsections (9) through

43

(12) are renumbered as sections (11) through (14), respectively,

44

and new subsections (8) and (10) are added to that section, to

45

read:

46

     403.067  Establishment and implementation of total maximum

47

daily loads.--

48

     (7)  DEVELOPMENT OF BASIN MANAGEMENT PLANS AND

49

IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.--

50

     (a)  Basin management action plans.--

51

     1.  In developing and implementing the total maximum daily

52

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

53

conjunction with a water management district, may develop a basin

54

management action plan that addresses some or all of the

55

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

56

must shall integrate the appropriate management strategies

57

available to the state through existing water quality protection

58

programs to achieve the total maximum daily loads and may provide

59

for phased implementation of these management strategies to

60

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

61

403.151. The plan must shall establish a schedule for

62

implementing the management strategies, establish a basis for

63

evaluating the plan's effectiveness, and identify feasible

64

funding strategies for implementing the plan's management

65

strategies. The management strategies may include regional

66

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

67

in the basin listed in subsection (10) for which a basin

68

management action plan has been adopted, voluntary trading of

69

water quality credits to achieve the needed pollutant load

70

reductions.

71

     2. A basin management action plan must shall equitably

72

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

73

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

74

identified point source or category of nonpoint sources, as

75

appropriate. For nonpoint sources for which best management

76

practices have been adopted, the initial requirement specified by

77

the plan must shall be those practices developed pursuant to

78

paragraph (c). Where appropriate, the plan may take into account

79

the benefits of provide pollutant load reduction achieved by

80

point or nonpoint sources credits to dischargers that have

81

implemented management strategies to reduce pollutant loads,

82

including best management practices, prior to the development of

83

the basin management action plan. The plan must shall also

84

identify the mechanisms that will address by which potential

85

future increases in pollutant loading will be addressed.

86

     3.  The basin management action planning process is intended

87

to involve the broadest possible range of interested parties,

88

with the objective of encouraging the greatest amount of

89

cooperation and consensus possible. In developing a basin

90

management action plan, the department shall assure that key

91

stakeholders, including, but not limited to, applicable local

92

governments, water management districts, the Department of

93

Agriculture and Consumer Services, other appropriate state

94

agencies, local soil and water conservation districts,

95

environmental groups, regulated interests, and affected pollution

96

sources, are invited to participate in the process. The

97

department shall hold at least one public meeting in the vicinity

98

of the watershed or basin to discuss and receive comments during

99

the planning process and shall otherwise encourage public

100

participation to the greatest practicable extent. Notice of the

101

public meeting must shall be published in a newspaper of general

102

circulation in each county in which the watershed or basin lies

103

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

104

meeting. A basin management action plan shall not supplant or

105

otherwise alter any assessment made under subsection (3) or

106

subsection (4) or any calculation or initial allocation.

107

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

108

management action plan and any amendment to such plan by

109

secretarial order pursuant to chapter 120 to implement the

110

provisions of this section.

111

     5. The basin management action plan must shall include

112

milestones for implementation and water quality improvement, and

113

an associated water quality monitoring component sufficient to

114

evaluate whether reasonable progress in pollutant load reductions

115

is being achieved over time. An assessment of progress toward

116

these milestones shall be conducted every 5 years, and revisions

117

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

118

management action plan shall be made by the department in

119

cooperation with basin stakeholders. Revisions to the management

120

strategies required for nonpoint sources must shall follow the

121

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

122

management action plans must shall be adopted pursuant to

123

subparagraph 4.

124

     6. In accordance with procedures adopted by rule under

125

paragraph (9)(c), basin management action plans may allow point

126

or nonpoint sources that will achieve greater pollutant

127

reductions than required by an adopted total maximum load or

128

wasteload allocation to generate, register, and trade water

129

quality credits for the excess reductions to enable other sources

130

to achieve their allocation; however, the generation of water

131

quality credits does not remove the obligation of a source or

132

activity to meet applicable technology requirements or adopted

133

best management practices. Such plans must allow trading between

134

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

135

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

136

entity or activity not subject to department water discharge

137

permits whose owner voluntarily elects to obtain department

138

authorization for the generation and sale of credits.

139

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

140

equitable abatement of pollutants into surface waters shall not

141

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

142

basin management plan that takes into account future new or

143

expanded activities or discharges has been adopted under this

144

section.

145

     (b)  Total maximum daily load implementation.--

146

     1.  The department shall be the lead agency in coordinating

147

the implementation of the total maximum daily loads through

148

existing water quality protection programs. Application of a

149

total maximum daily load by a water management district must

150

shall be consistent with this section and shall not require the

151

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

152

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

153

allocation previously established by the department. Such

154

programs may include, but are not limited to:

155

     a.  Permitting and other existing regulatory programs,

156

including water-quality-based effluent limitations;

157

     b.  Nonregulatory and incentive-based programs, including

158

best management practices, cost sharing, waste minimization,

159

pollution prevention, agreements established pursuant to s.

160

403.061(21), and public education;

161

     c.  Other water quality management and restoration

162

activities, for example surface water improvement and management

163

plans approved by water management districts or basin management

164

action plans developed pursuant to this subsection;

165

     d. Trading of water quality credits Pollutant trading or

166

other equitable economically based agreements;

167

     e.  Public works including capital facilities; or

168

     f.  Land acquisition.

169

     2.  For a basin management action plan adopted pursuant to

170

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

171

pollutant reduction requirements associated with a pollutant of

172

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

173

including effluent limits set forth for a discharger subject to

174

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

175

manner in subsequent NPDES permits or permit modifications for

176

that discharger. The department shall not impose limits or

177

conditions implementing an adopted total maximum daily load in an

178

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

179

or the permit is reopened pursuant to an adopted basin management

180

action plan, unless required by federal law or regulation.

181

     a.  Absent a detailed allocation, total maximum daily loads

182

shall be implemented through NPDES permit conditions that provide

183

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

184

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

185

adopting the basin management action plan. The time allowed for

186

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

187

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

188

must shall be reopened or renewed, as necessary, and permit

189

conditions consistent with the plan must shall be established.

190

Notwithstanding the other provisions of this subparagraph, upon

191

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

192

issuance, renewal, or modification may establish individual

193

allocations prior to the adoption of a basin management action

194

plan.

195

     b.  For holders of NPDES municipal separate storm sewer

196

system permits and other stormwater sources, implementation of a

197

total maximum daily load or basin management action must plan

198

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

199

use of best management practices or other management measures.

200

     c.  The basin management action plan does not relieve the

201

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

202

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

203

     d.  Management strategies set forth in a basin management

204

action plan to be implemented by a discharger subject to

205

permitting by the department must shall be completed pursuant to

206

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

207

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

208

NPDES permit.

209

     e.  Management strategies and pollution reduction

210

requirements set forth in a basin management action plan for a

211

specific pollutant of concern shall not be subject to challenge

212

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

213

identical form, into a subsequent NPDES permit or permit

214

modification.

215

     f.  For nonagricultural pollutant sources not subject to

216

NPDES permitting but permitted pursuant to other state, regional,

217

or local water quality programs, the pollutant reduction actions

218

adopted in a basin management action plan shall be implemented to

219

the maximum extent practicable as part of those permitting

220

programs.

221

     g.  A nonpoint source discharger included in a basin

222

management action plan must shall demonstrate compliance with the

223

pollutant reductions established under pursuant to subsection (6)

224

by either implementing the appropriate best management practices

225

established pursuant to paragraph (c) or conducting water quality

226

monitoring prescribed by the department or a water management

227

district. A nonpoint source discharger may, in accordance with

228

department rules, supplement the implementation of best-

229

management practices with water quality credit trades in order to

230

demonstrate compliance with the pollutant reductions established

231

under subsection (6).

232

     h.  A nonpoint source discharger included in a basin

233

management action plan may be subject to enforcement action by

234

the department or a water management district based upon a

235

failure to implement the responsibilities set forth in sub-

236

subparagraph g.

237

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

238

is implementing applicable management strategies specified in an

239

adopted basin management action plan shall not be required by

240

permit, enforcement action, or otherwise to implement additional

241

management strategies to reduce pollutant loads to attain the

242

pollutant reductions established pursuant to subsection (6) and

243

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

244

subparagraph does not limit the authority of the department to

245

amend a basin management action plan as specified in subparagraph

246

(a)5.

247

     (c)  Best management practices.--

248

     1.  The department, in cooperation with the water management

249

districts and other interested parties, as appropriate, may

250

develop suitable interim measures, best management practices, or

251

other measures necessary to achieve the level of pollution

252

reduction established by the department for nonagricultural

253

nonpoint pollutant sources in allocations developed pursuant to

254

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

255

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

256

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

257

adopted by rule, shall be implemented by those parties

258

responsible for nonagricultural nonpoint source pollution.

259

     2.  The Department of Agriculture and Consumer Services may

260

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

261

suitable interim measures, best management practices, or other

262

measures necessary to achieve the level of pollution reduction

263

established by the department for agricultural pollutant sources

264

in allocations developed pursuant to subsection (6) and this

265

subsection or for programs implemented pursuant to paragraph

266

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

267

by those parties responsible for agricultural pollutant sources

268

and the department, the water management districts, and the

269

Department of Agriculture and Consumer Services shall assist with

270

implementation. In the process of developing and adopting rules

271

for interim measures, best management practices, or other

272

measures, the Department of Agriculture and Consumer Services

273

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

274

water management districts, representatives from affected farming

275

groups, and environmental group representatives. Such rules must

276

shall also incorporate provisions for a notice of intent to

277

implement the practices and a system to assure the implementation

278

of the practices, including recordkeeping requirements.

279

     3.  Where interim measures, best management practices, or

280

other measures are adopted by rule, the effectiveness of such

281

practices in achieving the levels of pollution reduction

282

established in allocations developed by the department pursuant

283

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

284

pursuant to paragraph (13)(b) must (11)(b) shall be verified at

285

representative sites by the department. The department shall use

286

best professional judgment in making the initial verification

287

that the best management practices are reasonably expected to be

288

effective and, where applicable, must shall notify the

289

appropriate water management district or the Department of

290

Agriculture and Consumer Services of its initial verification

291

before prior to the adoption of a rule proposed pursuant to this

292

paragraph. Implementation, in accordance with rules adopted under

293

this paragraph, of practices that have been initially verified to

294

be effective, or verified to be effective by monitoring at

295

representative sites, by the department, shall provide a

296

presumption of compliance with state water quality standards and

297

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

298

addressed by the practices, and the department is not authorized

299

to institute proceedings against the owner of the source of

300

pollution to recover costs or damages associated with the

301

contamination of surface water or groundwater caused by those

302

pollutants. Research projects funded by the department, a water

303

management district, or the Department of Agriculture and

304

Consumer Services to develop or demonstrate interim measures or

305

best management practices shall be granted a presumption of

306

compliance with state water quality standards and a release from

307

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

308

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

309

those pollutants addressed by the interim measures or best

310

management practices. Eligibility for the presumption of

311

compliance and release is shall be limited to research projects

312

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

313

department, a water management district, or the Department of

314

Agriculture and Consumer Services have entered into a contract or

315

other agreement that, at a minimum, specifies the research

316

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

317

schedule that details the beginning and ending dates of the

318

project.

319

     4.  Where water quality problems are demonstrated, despite

320

the appropriate implementation, operation, and maintenance of

321

best management practices and other measures required by

322

according to rules adopted under this paragraph, the department,

323

a water management district, or the Department of Agriculture and

324

Consumer Services, in consultation with the department, shall

325

institute a reevaluation of the best management practice or other

326

measure. Should the reevaluation determine that the best

327

management practice or other measure requires modification, the

328

department, a water management district, or the Department of

329

Agriculture and Consumer Services, as appropriate, shall revise

330

the rule to require implementation of the modified practice

331

within a reasonable time period as specified in the rule.

332

     5.  Agricultural records relating to processes or methods of

333

production, costs of production, profits, or other financial

334

information held by the Department of Agriculture and Consumer

335

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

336

rule adopted pursuant to subparagraph 2. are confidential and

337

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

338

Constitution. Upon request, records made confidential and exempt

339

pursuant to this subparagraph shall be released to the department

340

or any water management district provided that the

341

confidentiality specified by this subparagraph for such records

342

is maintained.

343

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

344

preclude the department or water management district from

345

requiring compliance with water quality standards or with current

346

best management practice requirements set forth in any applicable

347

regulatory program authorized by law for the purpose of

348

protecting water quality. Additionally, subparagraphs 1. and 2.

349

are applicable only to the extent that they do not conflict with

350

any rules adopted by the department that are necessary to

351

maintain a federally delegated or approved program.

352

     (8) WATER QUALITY CREDIT TRADING.--

353

     (a) Water quality credit trading must be consistent with

354

federal law and regulation.

355

     (b) Water quality credit trading must be implemented

356

through permits, including water quality credit trading permits,

357

other authorizations, or other legally binding agreements as

358

established by department rule.

359

     (c) The department shall establish the pollutant load-

360

reduction value of water quality credits and shall be responsible

361

for authorizing their use.

362

     (d) A person that acquires water quality credits ("buyer")

363

shall timely submit to the department an affidavit, signed by the

364

buyer and the credit generator ("seller"), disclosing the term of

365

acquisition, number of credits, unit credit price paid, and any

366

state funding received for the facilities or activities that

367

generate the credits. The department shall not participate in the

368

establishment of credit prices.

369

     (e) Sellers of water quality credits are responsible for

370

achieving the load reductions on which the credits are based and

371

complying with the terms of the department authorization and any

372

trading agreements into which they may have entered.

373

     (f) Buyers of water quality credits are responsible for

374

complying with the terms of the department water discharge

375

permit.

376

     (g) The department shall take appropriate action to address

377

the failure of a credit seller to fulfill its obligations,

378

including, as necessary, deeming the seller's credits invalid if

379

the seller cannot achieve the load reductions on which the

380

credits were based in a reasonable time. If the department

381

determines duly acquired water quality credits to be invalid, in

382

whole or in part, thereby causing the credit buyer to be unable

383

to timely meet its pollutant-reduction obligations under this

384

section, the department shall issue an order establishing the

385

actions required of the buyer to meet its obligations by

386

alternative means and a reasonable schedule for completing the

387

actions. The invalidation of credits shall not itself constitute

388

a violation of the buyer's water discharge permit.

389

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

390

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

391

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

392

list developed under subsection (4) pursuant to the guidance

393

under subsection (5).;

394

     (b) Administering Administration of funds to implement the

395

total maximum daily load and basin management action planning

396

programs.;

397

     (c) Water quality credit Procedures for pollutant trading

398

among the pollutant sources to a water body or water body

399

segment. By September 1, 2008, rulemaking must be initiated which

400

provides for the following:, including a mechanism for the

401

issuance and tracking of pollutant credits. Such procedures may

402

be implemented through permits or other authorizations and must

403

be legally binding. Prior to adopting rules for pollutant trading

404

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

405

Department of Environmental Protection shall submit a report to

406

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

407

House of Representatives containing recommendations on such

408

rules, including the proposed basis for equitable economically

409

based agreements and the tracking and accounting of pollution

410

credits or other similar mechanisms. Such recommendations shall

411

be developed in cooperation with a technical advisory committee

412

that includes experts in pollutant trading and representatives of

413

potentially affected parties;

414

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

415

generated, quantified, and validated.

416

     2. A publicly accessible water quality credit trading

417

registry that tracks water quality credits, trading activities,

418

and prices paid for credits.

419

     3. Limitations on the availability and use of water quality

420

credits, including a list of eligible pollutants or parameters

421

and minimum water quality requirements and, where appropriate,

422

adjustments to reflect best-management practice performance

423

uncertainties and water-segment-specific location factors.

424

     4. The timing and duration of credits and allowance for

425

credit transferability.

426

     5. Mechanisms for determining and ensuring compliance with

427

trading procedures, including recordkeeping, monitoring,

428

reporting, and inspections.

429

430

At the time of publication of the draft rules on water quality

431

credit trading, the department shall submit a copy to the United

432

States Environmental Protection Agency for review.

433

     (d)  The total maximum daily load calculation in accordance

434

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

435

act, for those eight water segments within Lake Okeechobee proper

436

as submitted to the United States Environmental Protection Agency

437

pursuant to subsection (2).;and

438

     (e)  Implementation of other specific provisions.

439

     (10) Water quality credit trading shall be limited to the

440

Lower St. Johns River Basin, as defined by the department, as a

441

pilot project. The department may authorize water quality credit

442

trading and establish specific requirements for trading in the

443

adopted basin management action plan for the Lower St. Johns

444

River Basin prior to the adoption of rules under paragraph (9)(c)

445

in order to effectively implement the pilot project. Entities

446

that participate in water quality credit trades shall timely

447

report to the department the prices for credits, how the prices

448

were determined, and any state funding received for the

449

facilities or activities that generated the credits. The

450

department shall not participate in the establishment of credit

451

prices. No later than 24 months after adoption of the basin

452

management action plan for the Lower St. Johns River, the

453

department shall submit a report to the Governor, the President

454

of the Senate, and the Speaker of the House of Representatives on

455

the effectiveness of the pilot project, including the following

456

information:

457

     (a) A summary of how water quality credit trading was

458

implemented, including the number of pounds of pollutants traded.

459

     (b) A description of the individual trades and estimated

460

pollutant load reductions that are expected to result from each

461

trade.

462

     (c) A description of any conditions placed on trades.

463

     (d) Prices associated with the trades, as reported by the

464

traders.

465

     (e) A recommendation as to whether other areas of the state

466

would benefit from water quality credit trading and, if so, an

467

identification of the statutory changes necessary to expand the

468

scope of trading.

469

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

470

section 403.088, Florida Statutes, are amended to read:

471

     403.088  Water pollution operation permits; conditions.--

472

     (2)

473

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

474

conditions or applicable statutes and rules, the department may

475

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

476

     1.  The applicant is constructing, installing, or placing

477

into operation, or has submitted plans and a reasonable schedule

478

for constructing, installing, or placing into operation, an

479

approved pollution abatement facility or alternative waste

480

disposal system;

481

     2.  The applicant needs permission to pollute the waters

482

within the state for a period of time necessary to complete

483

research, planning, construction, installation, or operation of

484

an approved and acceptable pollution abatement facility or

485

alternative waste disposal system;

486

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

487

disposing of the waste other than by discharging it into the

488

waters of the state;

489

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

490

public interest; or

491

     5.  The discharge will not be unreasonably destructive to

492

the quality of the receiving waters; or.

493

6. A water quality credit trade that meets the requirements

494

of s. 403.067.

495

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

496

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

497

schedule for achieving compliance with all permit conditions.

498

Such permit may require compliance with the accompanying order.

499

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