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 basins within which |
20 | the trading of water quality credits shall be authorized; |
21 | requiring that the department provide the Legislature with |
22 | an annual report regarding the status of the trading |
23 | program; correcting cross-references to conform to changes |
24 | made by the act; amending s. 403.088, F.S.; authorizing |
25 | the department to revise a water pollution operation |
26 | permit under certain circumstances; authorizing the |
27 | department to revise, renew, issue, or reissue such a |
28 | permit if a water quality credit trade that meets the |
29 | requirements of a total maximum daily load allocation has |
30 | been approved in a final order issued pursuant to state |
31 | law; requiring that revised permits be accompanied by an |
32 | order establishing a schedule for achieving compliance |
33 | with all permit conditions; providing an effective date. |
34 |
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35 | Be It Enacted by the Legislature of the State of Florida: |
36 |
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37 | Section 1. Subsections (7) and (8) of section 403.067, |
38 | Florida Statutes, are amended to read: |
39 | 403.067 Establishment and implementation of total maximum |
40 | daily loads.-- |
41 | (7) DEVELOPMENT OF BASIN MANAGEMENT PLANS AND |
42 | IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.-- |
43 | (a) Basin management action plans.-- |
44 | 1. In developing and implementing the total maximum daily |
45 | load for a water body, the department, or the department in |
46 | conjunction with a water management district, may develop a |
47 | basin management action plan that addresses some or all of the |
48 | watersheds and basins tributary to the water body. Such a plan |
49 | must shall integrate the appropriate management strategies |
50 | available to the state through existing water quality protection |
51 | programs to achieve the total maximum daily loads and may |
52 | provide for phased implementation of these management strategies |
53 | to promote timely, cost-effective actions as provided for in s. |
54 | 403.151. The plan must shall establish a schedule for |
55 | implementing the management strategies, establish a basis for |
56 | evaluating the plan's effectiveness, and identify feasible |
57 | funding strategies for implementing the plan's management |
58 | strategies. The management strategies may include regional |
59 | treatment systems or other public works, where appropriate, and, |
60 | in basins listed in paragraph (8)(f) for which a basin |
61 | management action plan has been adopted, voluntary trading of |
62 | water quality credits to achieve the needed pollutant load |
63 | reductions. |
64 | 2. A basin management action plan must shall equitably |
65 | allocate, pursuant to paragraph (6)(b), pollutant reductions to |
66 | individual basins, as a whole to all basins, or to each |
67 | identified point source or category of nonpoint sources, as |
68 | appropriate. For nonpoint sources for which best management |
69 | practices have been adopted, the initial requirement specified |
70 | by the plan must shall be those practices developed pursuant to |
71 | paragraph (c). In accordance with procedures adopted by rule |
72 | under paragraph (8)(c), plans for basins listed in paragraph |
73 | (8)(f) must allow point or nonpoint sources that will achieve |
74 | greater pollutant reductions than required by an adopted total |
75 | maximum load or wasteload allocation to generate, register, and |
76 | trade water quality credits for the excess reductions to enable |
77 | other sources to achieve their allocation if the generation of |
78 | water quality credits does not remove the obligation of a source |
79 | or activity to meet applicable technology requirements or |
80 | adopted best management practices. Such plans must allow trading |
81 | between NPDES permittees, and trading that may or may not |
82 | involve NPDES permittees, where the generation or use of the |
83 | credits involve an entity or activity not subject to department |
84 | water discharge permits whose owner voluntarily elects to become |
85 | subject to the requirements of this section. Where appropriate, |
86 | the plan may take into account the benefits of provide pollutant |
87 | load reduction achieved by point or nonpoint sources credits to |
88 | dischargers that have implemented management strategies to |
89 | reduce pollutant loads, including best management practices, |
90 | prior to the development of the basin management action plan. |
91 | The plan must shall also identify the mechanisms that will |
92 | address by which potential future increases in pollutant loading |
93 | will be addressed. |
94 | 3. The basin management action planning process is |
95 | intended to involve the broadest possible range of interested |
96 | parties, with the objective of encouraging the greatest amount |
97 | of cooperation and consensus possible. In developing a basin |
98 | management action plan, the department shall assure that key |
99 | stakeholders, including, but not limited to, applicable local |
100 | governments, water management districts, the Department of |
101 | Agriculture and Consumer Services, other appropriate state |
102 | agencies, local soil and water conservation districts, |
103 | environmental groups, regulated interests, and affected |
104 | pollution sources, are invited to participate in the process. |
105 | The department shall hold at least one public meeting in the |
106 | vicinity of the watershed or basin to discuss and receive |
107 | comments during the planning process and shall otherwise |
108 | encourage public participation to the greatest practicable |
109 | extent. Notice of the public meeting must shall be published in |
110 | a newspaper of general circulation in each county in which the |
111 | watershed or basin lies not less than 5 days nor more than 15 |
112 | days before the public meeting. A basin management action plan |
113 | shall not supplant or otherwise alter any assessment made under |
114 | subsection (3) or subsection (4) or any calculation or initial |
115 | allocation. |
116 | 4. The department shall adopt all or any part of a basin |
117 | management action plan and any amendment to such plan by |
118 | secretarial order pursuant to chapter 120 to implement the |
119 | provisions of this section. |
120 | 5. The basin management action plan must shall include |
121 | milestones for implementation and water quality improvement, and |
122 | an associated water quality monitoring component sufficient to |
123 | evaluate whether reasonable progress in pollutant load |
124 | reductions is being achieved over time. An assessment of |
125 | progress toward these milestones shall be conducted every 5 |
126 | years, and revisions to the plan shall be made as appropriate. |
127 | Revisions to the basin management action plan shall be made by |
128 | the department in cooperation with basin stakeholders. Revisions |
129 | to the management strategies required for nonpoint sources must |
130 | shall follow the procedures set forth in subparagraph (c)4. |
131 | Revised basin management action plans must shall be adopted |
132 | pursuant to subparagraph 4. |
133 | 6. The provisions of the department's rule relating to the |
134 | equitable abatement of pollutants into surface waters may not be |
135 | applied to water bodies or water body segments for which a basin |
136 | management plan that takes into account future new or expanded |
137 | activities or discharges has been adopted pursuant to this |
138 | section. |
139 | (b) Total maximum daily load implementation.-- |
140 | 1. The department shall be the lead agency in coordinating |
141 | the implementation of the total maximum daily loads through |
142 | existing water quality protection programs. Application of a |
143 | total maximum daily load by a water management district must |
144 | shall be consistent with this section and shall not require the |
145 | issuance of an order or a separate action pursuant to s. |
146 | 120.536(1) or s. 120.54 for the adoption of the calculation and |
147 | allocation previously established by the department. Such |
148 | programs may include, but are not limited to: |
149 | a. Permitting and other existing regulatory programs, |
150 | including water-quality-based effluent limitations; |
151 | b. Nonregulatory and incentive-based programs, including |
152 | best management practices, cost sharing, waste minimization, |
153 | pollution prevention, agreements established pursuant to s. |
154 | 403.061(21), and public education; |
155 | c. Other water quality management and restoration |
156 | activities, for example surface water improvement and management |
157 | plans approved by water management districts or basin management |
158 | action plans developed pursuant to this subsection; |
159 | d. Trading of water quality credits Pollutant trading or |
160 | other equitable economically based agreements; |
161 | e. Public works including capital facilities; or |
162 | f. Land acquisition. |
163 | 2. For a basin management action plan adopted pursuant to |
164 | paragraph (a) subparagraph (a)4., any management strategies and |
165 | pollutant reduction requirements associated with a pollutant of |
166 | concern for which a total maximum daily load has been developed, |
167 | including effluent limits set forth for a discharger subject to |
168 | NPDES permitting, if any, must shall be included in a timely |
169 | manner in subsequent NPDES permits or permit modifications for |
170 | that discharger. The department shall not impose limits or |
171 | conditions implementing an adopted total maximum daily load in |
172 | an NPDES permit until the permit expires, the discharge is |
173 | modified, or the permit is reopened pursuant to an adopted basin |
174 | management action plan. |
175 | a. Absent a detailed allocation, total maximum daily loads |
176 | shall be implemented through NPDES permit conditions that |
177 | provide for afford a compliance schedule. In such instances, a |
178 | facility's NPDES permit must shall allow time for the issuance |
179 | of an order adopting the basin management action plan. The time |
180 | allowed for the issuance of an order adopting the plan may shall |
181 | not exceed 5 years. Upon issuance of an order adopting the plan, |
182 | the permit must shall be reopened, as necessary, and permit |
183 | conditions consistent with the plan must shall be established. |
184 | Notwithstanding the other provisions of this subparagraph, upon |
185 | request by a NPDES permittee, the department as part of a permit |
186 | issuance, renewal, or modification may establish individual |
187 | allocations prior to the adoption of a basin management action |
188 | plan. |
189 | b. For holders of NPDES municipal separate storm sewer |
190 | system permits and other stormwater sources, implementation of a |
191 | total maximum daily load or basin management action plan must |
192 | shall be achieved, to the maximum extent practicable, through |
193 | the use of best management practices or other management |
194 | measures. |
195 | c. The basin management action plan does not relieve the |
196 | discharger from any requirement to obtain, renew, or modify an |
197 | NPDES permit or to abide by other requirements of the permit. |
198 | d. Management strategies set forth in a basin management |
199 | action plan to be implemented by a discharger subject to |
200 | permitting by the department must shall be completed pursuant to |
201 | the schedule set forth in the basin management action plan. This |
202 | implementation schedule may extend beyond the 5-year term of an |
203 | NPDES permit. |
204 | e. Management strategies and pollution reduction |
205 | requirements set forth in a basin management action plan for a |
206 | specific pollutant of concern shall not be subject to challenge |
207 | under chapter 120 at the time they are incorporated, in an |
208 | identical form, into a subsequent NPDES permit or permit |
209 | modification. |
210 | f. For nonagricultural pollutant sources not subject to |
211 | NPDES permitting but permitted pursuant to other state, |
212 | regional, or local water quality programs, the pollutant |
213 | reduction actions adopted in a basin management action plan |
214 | shall be implemented to the maximum extent practicable as part |
215 | of those permitting programs. |
216 | g. A nonpoint source discharger included in a basin |
217 | management action plan must shall demonstrate compliance with |
218 | the pollutant reductions established under pursuant to |
219 | subsection (6) by either implementing the appropriate best |
220 | management practices established pursuant to paragraph (c) or |
221 | conducting water quality monitoring prescribed by the department |
222 | or a water management district. |
223 | h. A nonpoint source discharger included in a basin |
224 | management action plan may be subject to enforcement action by |
225 | the department or a water management district based upon a |
226 | failure to implement the responsibilities set forth in sub- |
227 | subparagraph g. |
228 | i. A landowner, discharger, or other responsible person |
229 | who is implementing applicable management strategies specified |
230 | in an adopted basin management action plan may shall not be |
231 | required by permit, enforcement action, or otherwise to |
232 | implement additional management strategies to reduce pollutant |
233 | loads to attain the pollutant reductions established pursuant to |
234 | subsection (6) and shall be deemed to be in compliance with this |
235 | section. This subparagraph does not limit the authority of the |
236 | department to amend a basin management action plan as specified |
237 | in subparagraph (a)5. |
238 | (c) Best management practices.-- |
239 | 1. The department, in cooperation with the water |
240 | management districts and other interested parties, as |
241 | appropriate, may develop suitable interim measures, best |
242 | management practices, or other measures necessary to achieve the |
243 | level of pollution reduction established by the department for |
244 | nonagricultural nonpoint pollutant sources in allocations |
245 | developed pursuant to subsection (6) and this subsection. These |
246 | practices and measures may be adopted by rule by the department |
247 | and the water management districts pursuant to ss. 120.536(1) |
248 | and 120.54, and, where adopted by rule, shall be implemented by |
249 | those parties responsible for nonagricultural nonpoint source |
250 | pollution. |
251 | 2. The Department of Agriculture and Consumer Services may |
252 | develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 |
253 | suitable interim measures, best management practices, or other |
254 | measures necessary to achieve the level of pollution reduction |
255 | established by the department for agricultural pollutant sources |
256 | in allocations developed pursuant to subsection (6) and this |
257 | subsection or for programs implemented pursuant to paragraph |
258 | (11)(b). These practices and measures may be implemented by |
259 | those parties responsible for agricultural pollutant sources and |
260 | the department, the water management districts, and the |
261 | Department of Agriculture and Consumer Services shall assist |
262 | with implementation. In the process of developing and adopting |
263 | rules for interim measures, best management practices, or other |
264 | measures, the Department of Agriculture and Consumer Services |
265 | shall consult with the department, the Department of Health, the |
266 | water management districts, representatives from affected |
267 | farming groups, and environmental group representatives. Such |
268 | rules must shall also incorporate provisions for a notice of |
269 | intent to implement the practices and a system to assure the |
270 | implementation of the practices, including recordkeeping |
271 | requirements. |
272 | 3. Where interim measures, best management practices, or |
273 | other measures are adopted by rule, the effectiveness of such |
274 | practices in achieving the levels of pollution reduction |
275 | established in allocations developed by the department pursuant |
276 | to subsection (6) and this subsection or in programs implemented |
277 | pursuant to paragraph (11)(b) must shall be verified at |
278 | representative sites by the department. The department shall use |
279 | best professional judgment in making the initial verification |
280 | that the best management practices are reasonably expected to be |
281 | effective and, where applicable, must shall notify the |
282 | appropriate water management district or the Department of |
283 | Agriculture and Consumer Services of its initial verification |
284 | prior to the adoption of a rule proposed pursuant to this |
285 | paragraph. Implementation, in accordance with rules adopted |
286 | under this paragraph, of practices that have been initially |
287 | verified to be effective, or verified to be effective by |
288 | monitoring at representative sites, by the department, shall |
289 | provide a presumption of compliance with state water quality |
290 | standards and release from the provisions of s. 376.307(5) for |
291 | those pollutants addressed by the practices, and the department |
292 | is not authorized to institute proceedings against the owner of |
293 | the source of pollution to recover costs or damages associated |
294 | with the contamination of surface water or groundwater caused by |
295 | those pollutants. Research projects funded by the department, a |
296 | water management district, or the Department of Agriculture and |
297 | Consumer Services to develop or demonstrate interim measures or |
298 | best management practices shall be granted a presumption of |
299 | compliance with state water quality standards and a release from |
300 | the provisions of s. 376.307(5). The presumption of compliance |
301 | and release is shall be limited to the research site and only |
302 | for those pollutants addressed by the interim measures or best |
303 | management practices. Eligibility for the presumption of |
304 | compliance and release is shall be limited to research projects |
305 | on sites where the owner or operator of the research site and |
306 | the department, a water management district, or the Department |
307 | of Agriculture and Consumer Services have entered into a |
308 | contract or other agreement that, at a minimum, specifies the |
309 | research objectives, the cost-share responsibilities of the |
310 | parties, and a schedule that details the beginning and ending |
311 | dates of the project. |
312 | 4. Where water quality problems are demonstrated, despite |
313 | the appropriate implementation, operation, and maintenance of |
314 | best management practices and other measures required by |
315 | according to rules adopted under this paragraph, the department, |
316 | a water management district, or the Department of Agriculture |
317 | and Consumer Services, in consultation with the department, |
318 | shall institute a reevaluation of the best management practice |
319 | or other measure. Should the reevaluation determine that the |
320 | best management practice or other measure requires modification, |
321 | the department, a water management district, or the Department |
322 | of Agriculture and Consumer Services, as appropriate, shall |
323 | revise the rule to require implementation of the modified |
324 | practice within a reasonable time period as specified in the |
325 | rule. |
326 | 5. Agricultural records relating to processes or methods |
327 | of production, costs of production, profits, or other financial |
328 | information held by the Department of Agriculture and Consumer |
329 | Services pursuant to subparagraphs 3. and 4. or pursuant to any |
330 | rule adopted pursuant to subparagraph 2. are confidential and |
331 | exempt from s. 119.07(1) and s. 24(a), Art. I of the State |
332 | Constitution. Upon request, records made confidential and exempt |
333 | pursuant to this subparagraph shall be released to the |
334 | department or any water management district if provided that the |
335 | confidentiality specified by this subparagraph for such records |
336 | is maintained. |
337 | 6. The provisions of subparagraphs 1. and 2. do shall not |
338 | preclude the department or water management district from |
339 | requiring compliance with water quality standards or with |
340 | current best management practice requirements set forth in any |
341 | applicable regulatory program authorized by law to protect for |
342 | the purpose of protecting water quality. Additionally, |
343 | subparagraphs 1. and 2. are applicable only to the extent that |
344 | they do not conflict with any rules adopted by the department |
345 | which that are necessary to maintain a federally delegated or |
346 | approved program. |
347 | (8) RULES.--The department is authorized to adopt rules |
348 | pursuant to ss. 120.536(1) and 120.54 for: |
349 | (a) Delisting water bodies or water body segments from the |
350 | list developed under subsection (4) pursuant to the guidance |
351 | under subsection (5).; |
352 | (b) Administering Administration of funds to implement the |
353 | total maximum daily load and basin management action planning |
354 | programs.; |
355 | (c) Water quality credit Procedures for pollutant trading |
356 | among the pollutant sources to a water body or water body |
357 | segment in basins listed in paragraph (f) shall be authorized by |
358 | department rule. By July 1, 2008, rulemaking must be initiated |
359 | which provides for the following:, including a mechanism for the |
360 | issuance and tracking of pollutant credits. Such procedures may |
361 | be implemented through permits or other authorizations and must |
362 | be legally binding. Prior to adopting rules for pollutant |
363 | trading under this paragraph, and no later than November 30, |
364 | 2006, the Department of Environmental Protection shall submit a |
365 | report to the Governor, the President of the Senate, and the |
366 | Speaker of the House of Representatives containing |
367 | recommendations on such rules, including the proposed basis for |
368 | equitable economically based agreements and the tracking and |
369 | accounting of pollution credits or other similar mechanisms. |
370 | Such recommendations shall be developed in cooperation with a |
371 | technical advisory committee that includes experts in pollutant |
372 | trading and representatives of potentially affected parties; |
373 | 1. The process to be used to determine how credits are |
374 | generated, quantified, and validated; |
375 | 2. A publicly accessible water quality credit trading |
376 | registry that tracks water quality credits and trades and lists |
377 | the prices paid for such credits and that does not allow the |
378 | department to participate in the establishment of such prices; |
379 | 3. Limitations on the availability and use of water |
380 | quality credits, including a list of eligible pollutants or |
381 | parameters and limited water quality requirements and, where |
382 | appropriate, adjustments to reflect best management practice |
383 | performance uncertainties and water-segment-specific location |
384 | factors; |
385 | 4. The timing and duration of credits and allowance for |
386 | credit transferability; and |
387 | 5. Mechanisms for determining and ensuring compliance with |
388 | trading procedures, including recordkeeping, monitoring, |
389 | reporting, and inspections. Generators of traded credits are |
390 | responsible for achieving the load reductions on which the |
391 | credits are based. |
392 | (d) The total maximum daily load calculation in accordance |
393 | with paragraph (6)(a) immediately upon the effective date of |
394 | this act, for those eight water segments within Lake Okeechobee |
395 | proper as submitted to the United States Environmental |
396 | Protection Agency pursuant to subsection (2).; and |
397 | (e) Implementation of other specific provisions. |
398 | (f) Basins within which trading shall be authorized under |
399 | paragraph (c) include the Lower St. Johns River Basin, Tampa Bay |
400 | Basin, and Pensacola Bay Basin. The department shall provide an |
401 | annual report to the Legislature on the status of the trading |
402 | program authorized in this section. |
403 | Section 2. Paragraphs (e) and (f) of subsection (2) of |
404 | section 403.088, Florida Statutes, are amended to read: |
405 | 403.088 Water pollution operation permits; conditions.-- |
406 | (2) |
407 | (e) However, if the discharge will not meet permit |
408 | conditions or applicable statutes and rules, the department may |
409 | issue, renew, revise, or reissue the operation permit if: |
410 | 1. The applicant is constructing, installing, or placing |
411 | into operation, or has submitted plans and a reasonable schedule |
412 | for constructing, installing, or placing into operation, an |
413 | approved pollution abatement facility or alternative waste |
414 | disposal system; |
415 | 2. The applicant needs permission to pollute the waters |
416 | within the state for a period of time necessary to complete |
417 | research, planning, construction, installation, or operation of |
418 | an approved and acceptable pollution abatement facility or |
419 | alternative waste disposal system; |
420 | 3. There is no present, reasonable, alternative means of |
421 | disposing of the waste other than by discharging it into the |
422 | waters of the state; |
423 | 4. The granting of an operation permit will be in the |
424 | public interest; or |
425 | 5. The discharge will not be unreasonably destructive to |
426 | the quality of the receiving waters; or. |
427 | 6. A water quality credit trade that meets the |
428 | requirements of a total maximum daily load allocation has been |
429 | approved in a final order issued under s. 403.067(7)(a)4. |
430 | (f) A permit issued, renewed, revised, or reissued |
431 | pursuant to paragraph (e) shall be accompanied by an order |
432 | establishing a schedule for achieving compliance with all permit |
433 | conditions. Such permit may require compliance with the |
434 | accompanying order. |
435 | Section 3. This act shall take effect July 1, 2008. |