CS/HB 547

1
A bill to be entitled
2An act relating to water pollution control; amending s.
3403.067, F.S.; providing requirements for basin management
4action plans; allowing such plans to take into account the
5benefits of pollutant load reduction achieved by point or
6nonpoint sources, where appropriate; requiring that the
7Department of Environmental Protection adopt all or part
8of any such plan, or any amendment thereto, by secretarial
9order as provided by state law; providing that the
10provisions of the department's rule relating to the
11equitable abatement of pollutants into surface waters may
12not be applied to water bodies or water body segments for
13which a basin management plan that takes into account
14future or new expanded activities or discharges has been
15adopted; authorizing water quality protection programs to
16include the trading of water quality credits; authorizing
17the department to adopt rules related to the trading of
18water quality credits; requiring that such rulemaking
19include certain provisions; specifying that a water
20quality credit trading pilot project be limited to the
21Lower St. Johns River Basin; requiring that the department
22provide the Legislature with an annual report regarding
23the effectiveness of the pilot project; providing report
24requirements; providing that the department may authorize
25and establish specific requirements for water quality
26credit trading as part of the Lower St. Johns River Basin
27adopted basin management action plan; correcting cross-
28references to conform to changes made by the act; amending
29s. 403.088, F.S.; authorizing the department to revise a
30water pollution operation permit under certain
31circumstances; authorizing the department to revise,
32renew, issue, or reissue such a permit if a water quality
33credit trade that meets the requirements of a total
34maximum daily load allocation has been approved in a final
35order issued pursuant to state law; requiring that revised
36permits be accompanied by an order establishing a schedule
37for achieving compliance with all permit conditions;
38providing an effective date.
39
40Be It Enacted by the Legislature of the State of Florida:
41
42     Section 1.  Subsections (7) and (8) of section 403.067,
43Florida Statutes, are amended, subsections (9) through (12) are
44renumbered as sections (10) through (13), respectively, and a
45new subsection (9) is added to that section, to read:
46     403.067  Establishment and implementation of total maximum
47daily loads.--
48     (7)  DEVELOPMENT OF BASIN MANAGEMENT PLANS AND
49IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.--
50     (a)  Basin management action plans.--
51     1.  In developing and implementing the total maximum daily
52load for a water body, the department, or the department in
53conjunction with a water management district, may develop a
54basin management action plan that addresses some or all of the
55watersheds and basins tributary to the water body. Such a plan
56must shall integrate the appropriate management strategies
57available to the state through existing water quality protection
58programs to achieve the total maximum daily loads and may
59provide for phased implementation of these management strategies
60to promote timely, cost-effective actions as provided for in s.
61403.151. The plan must shall establish a schedule for
62implementing the management strategies, establish a basis for
63evaluating the plan's effectiveness, and identify feasible
64funding strategies for implementing the plan's management
65strategies. The management strategies may include regional
66treatment systems or other public works, where appropriate, and,
67in the basin listed in subsection (9) for which a basin
68management action plan has been adopted, voluntary trading of
69water quality credits to achieve the needed pollutant load
70reductions.
71     2.  A basin management action plan must shall equitably
72allocate, pursuant to paragraph (6)(b), pollutant reductions to
73individual basins, as a whole to all basins, or to each
74identified point source or category of nonpoint sources, as
75appropriate. For nonpoint sources for which best management
76practices have been adopted, the initial requirement specified
77by the plan must shall be those practices developed pursuant to
78paragraph (c). Where appropriate, the plan may take into account
79the benefits of provide pollutant load reduction achieved by
80point or nonpoint sources credits to dischargers that have
81implemented management strategies to reduce pollutant loads,
82including best management practices, prior to the development of
83the basin management action plan. The plan must shall also
84identify the mechanisms that will address by which potential
85future increases in pollutant loading will be addressed.
86     3.  The basin management action planning process is
87intended to involve the broadest possible range of interested
88parties, with the objective of encouraging the greatest amount
89of cooperation and consensus possible. In developing a basin
90management action plan, the department shall assure that key
91stakeholders, including, but not limited to, applicable local
92governments, water management districts, the Department of
93Agriculture and Consumer Services, other appropriate state
94agencies, local soil and water conservation districts,
95environmental groups, regulated interests, and affected
96pollution sources, are invited to participate in the process.
97The department shall hold at least one public meeting in the
98vicinity of the watershed or basin to discuss and receive
99comments during the planning process and shall otherwise
100encourage public participation to the greatest practicable
101extent. Notice of the public meeting must shall be published in
102a newspaper of general circulation in each county in which the
103watershed or basin lies not less than 5 days nor more than 15
104days before the public meeting. A basin management action plan
105shall not supplant or otherwise alter any assessment made under
106subsection (3) or subsection (4) or any calculation or initial
107allocation.
108     4.  The department shall adopt all or any part of a basin
109management action plan and any amendment to such plan by
110secretarial order pursuant to chapter 120 to implement the
111provisions of this section.
112     5.  The basin management action plan must shall include
113milestones for implementation and water quality improvement, and
114an associated water quality monitoring component sufficient to
115evaluate whether reasonable progress in pollutant load
116reductions is being achieved over time. An assessment of
117progress toward these milestones shall be conducted every 5
118years, and revisions to the plan shall be made as appropriate.
119Revisions to the basin management action plan shall be made by
120the department in cooperation with basin stakeholders. Revisions
121to the management strategies required for nonpoint sources must
122shall follow the procedures set forth in subparagraph (c)4.
123Revised basin management action plans must shall be adopted
124pursuant to subparagraph 4.
125     6.  In accordance with procedures adopted by rule under
126paragraph (8)(c), plans for the basin listed in subsection (9)
127may allow point or nonpoint sources that will achieve greater
128pollutant reductions than required by an adopted total maximum
129load or wasteload allocation to generate, register, and trade
130water quality credits for the excess reductions to enable other
131sources to achieve their allocation; however, the generation of
132water quality credits does not remove the obligation of a source
133or activity to meet applicable technology requirements or
134adopted best management practices. Such plans must allow trading
135between NPDES permittees, and trading that may or may not
136involve NPDES permittees, where the generation or use of the
137credits involve an entity or activity not subject to department
138water discharge permits whose owner voluntarily elects to obtain
139department authorization for the generation and sale of credits.
140Notwithstanding any such water quality credit trades, entities
141subject to a department water discharge permit shall remain
142responsible for compliance with the limitations of the
143department water discharge permit, including any applicable load
144or wasteload allocation.
145     7.  The provisions of the department's rule relating to the
146equitable abatement of pollutants into surface waters may not be
147applied to water bodies or water body segments for which a basin
148management plan that takes into account future new or expanded
149activities or discharges has been adopted pursuant to this
150section.
151     (b)  Total maximum daily load implementation.--
152     1.  The department shall be the lead agency in coordinating
153the implementation of the total maximum daily loads through
154existing water quality protection programs. Application of a
155total maximum daily load by a water management district must
156shall be consistent with this section and shall not require the
157issuance of an order or a separate action pursuant to s.
158120.536(1) or s. 120.54 for the adoption of the calculation and
159allocation previously established by the department. Such
160programs may include, but are not limited to:
161     a.  Permitting and other existing regulatory programs,
162including water-quality-based effluent limitations;
163     b.  Nonregulatory and incentive-based programs, including
164best management practices, cost sharing, waste minimization,
165pollution prevention, agreements established pursuant to s.
166403.061(21), and public education;
167     c.  Other water quality management and restoration
168activities, for example surface water improvement and management
169plans approved by water management districts or basin management
170action plans developed pursuant to this subsection;
171     d.  Trading of water quality credits Pollutant trading or
172other equitable economically based agreements;
173     e.  Public works including capital facilities; or
174     f.  Land acquisition.
175     2.  For a basin management action plan adopted pursuant to
176paragraph (a) subparagraph (a)4., any management strategies and
177pollutant reduction requirements associated with a pollutant of
178concern for which a total maximum daily load has been developed,
179including effluent limits set forth for a discharger subject to
180NPDES permitting, if any, must shall be included in a timely
181manner in subsequent NPDES permits or permit modifications for
182that discharger. The department shall not impose limits or
183conditions implementing an adopted total maximum daily load in
184an NPDES permit until the permit expires, the discharge is
185modified, or the permit is reopened pursuant to an adopted basin
186management action plan, unless required by federal law or
187regulation.
188     a.  Absent a detailed allocation, total maximum daily loads
189shall be implemented through NPDES permit conditions that
190provide for afford a compliance schedule. In such instances, a
191facility's NPDES permit must shall allow time for the issuance
192of an order adopting the basin management action plan. The time
193allowed for the issuance of an order adopting the plan may shall
194not exceed 5 years. Upon issuance of an order adopting the plan,
195the permit must shall be reopened or renewed, as necessary, and
196permit conditions consistent with the plan must shall be
197established. Notwithstanding the other provisions of this
198subparagraph, upon request by a NPDES permittee, the department
199as part of a permit issuance, renewal, or modification may
200establish individual allocations prior to the adoption of a
201basin management action plan.
202     b.  For holders of NPDES municipal separate storm sewer
203system permits and other stormwater sources, implementation of a
204total maximum daily load or basin management action plan must
205shall be achieved, to the maximum extent practicable, through
206the use of best management practices or other management
207measures.
208     c.  The basin management action plan does not relieve the
209discharger from any requirement to obtain, renew, or modify an
210NPDES permit or to abide by other requirements of the permit.
211     d.  Management strategies set forth in a basin management
212action plan to be implemented by a discharger subject to
213permitting by the department must shall be completed pursuant to
214the schedule set forth in the basin management action plan. This
215implementation schedule may extend beyond the 5-year term of an
216NPDES permit.
217     e.  Management strategies and pollution reduction
218requirements set forth in a basin management action plan for a
219specific pollutant of concern shall not be subject to challenge
220under chapter 120 at the time they are incorporated, in an
221identical form, into a subsequent NPDES permit or permit
222modification.
223     f.  For nonagricultural pollutant sources not subject to
224NPDES permitting but permitted pursuant to other state,
225regional, or local water quality programs, the pollutant
226reduction actions adopted in a basin management action plan
227shall be implemented to the maximum extent practicable as part
228of those permitting programs.
229     g.  A nonpoint source discharger included in a basin
230management action plan must shall demonstrate compliance with
231the pollutant reductions established under pursuant to
232subsection (6) by either implementing the appropriate best
233management practices established pursuant to paragraph (c) or
234conducting water quality monitoring prescribed by the department
235or a water management district. A nonpoint source discharger
236may, in accordance with department rules, supplement the
237implementation of best management practices with water quality
238credit trades in order to demonstrate compliance with the
239pollutant reductions established under subsection (6).
240     h.  A nonpoint source discharger included in a basin
241management action plan may be subject to enforcement action by
242the department or a water management district based upon a
243failure to implement the responsibilities set forth in sub-
244subparagraph g.
245     i.  A landowner, discharger, or other responsible person
246who is implementing applicable management strategies specified
247in an adopted basin management action plan shall not be required
248by permit, enforcement action, or otherwise to implement
249additional management strategies to reduce pollutant loads to
250attain the pollutant reductions established pursuant to
251subsection (6) and shall be deemed to be in compliance with this
252section. This subparagraph does not limit the authority of the
253department to amend a basin management action plan as specified
254in subparagraph (a)5.
255     (c)  Best management practices.--
256     1.  The department, in cooperation with the water
257management districts and other interested parties, as
258appropriate, may develop suitable interim measures, best
259management practices, or other measures necessary to achieve the
260level of pollution reduction established by the department for
261nonagricultural nonpoint pollutant sources in allocations
262developed pursuant to subsection (6) and this subsection. These
263practices and measures may be adopted by rule by the department
264and the water management districts pursuant to ss. 120.536(1)
265and 120.54, and, where adopted by rule, shall be implemented by
266those parties responsible for nonagricultural nonpoint source
267pollution.
268     2.  The Department of Agriculture and Consumer Services may
269develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
270suitable interim measures, best management practices, or other
271measures necessary to achieve the level of pollution reduction
272established by the department for agricultural pollutant sources
273in allocations developed pursuant to subsection (6) and this
274subsection or for programs implemented pursuant to paragraph
275(12)(11)(b). These practices and measures may be implemented by
276those parties responsible for agricultural pollutant sources and
277the department, the water management districts, and the
278Department of Agriculture and Consumer Services shall assist
279with implementation. In the process of developing and adopting
280rules for interim measures, best management practices, or other
281measures, the Department of Agriculture and Consumer Services
282shall consult with the department, the Department of Health, the
283water management districts, representatives from affected
284farming groups, and environmental group representatives. Such
285rules must shall also incorporate provisions for a notice of
286intent to implement the practices and a system to assure the
287implementation of the practices, including recordkeeping
288requirements.
289     3.  Where interim measures, best management practices, or
290other measures are adopted by rule, the effectiveness of such
291practices in achieving the levels of pollution reduction
292established in allocations developed by the department pursuant
293to subsection (6) and this subsection or in programs implemented
294pursuant to paragraph (12)(11)(b) must shall be verified at
295representative sites by the department. The department shall use
296best professional judgment in making the initial verification
297that the best management practices are reasonably expected to be
298effective and, where applicable, must shall notify the
299appropriate water management district or the Department of
300Agriculture and Consumer Services of its initial verification
301prior to the adoption of a rule proposed pursuant to this
302paragraph. Implementation, in accordance with rules adopted
303under this paragraph, of practices that have been initially
304verified to be effective, or verified to be effective by
305monitoring at representative sites, by the department, shall
306provide a presumption of compliance with state water quality
307standards and release from the provisions of s. 376.307(5) for
308those pollutants addressed by the practices, and the department
309is not authorized to institute proceedings against the owner of
310the source of pollution to recover costs or damages associated
311with the contamination of surface water or groundwater caused by
312those pollutants. Research projects funded by the department, a
313water management district, or the Department of Agriculture and
314Consumer Services to develop or demonstrate interim measures or
315best management practices shall be granted a presumption of
316compliance with state water quality standards and a release from
317the provisions of s. 376.307(5). The presumption of compliance
318and release is shall be limited to the research site and only
319for those pollutants addressed by the interim measures or best
320management practices. Eligibility for the presumption of
321compliance and release is shall be limited to research projects
322on sites where the owner or operator of the research site and
323the department, a water management district, or the Department
324of Agriculture and Consumer Services have entered into a
325contract or other agreement that, at a minimum, specifies the
326research objectives, the cost-share responsibilities of the
327parties, and a schedule that details the beginning and ending
328dates of the project.
329     4.  Where water quality problems are demonstrated, despite
330the appropriate implementation, operation, and maintenance of
331best management practices and other measures required by
332according to rules adopted under this paragraph, the department,
333a water management district, or the Department of Agriculture
334and Consumer Services, in consultation with the department,
335shall institute a reevaluation of the best management practice
336or other measure. Should the reevaluation determine that the
337best management practice or other measure requires modification,
338the department, a water management district, or the Department
339of Agriculture and Consumer Services, as appropriate, shall
340revise the rule to require implementation of the modified
341practice within a reasonable time period as specified in the
342rule.
343     5.  Agricultural records relating to processes or methods
344of production, costs of production, profits, or other financial
345information held by the Department of Agriculture and Consumer
346Services pursuant to subparagraphs 3. and 4. or pursuant to any
347rule adopted pursuant to subparagraph 2. are confidential and
348exempt from s. 119.07(1) and s. 24(a), Art. I of the State
349Constitution. Upon request, records made confidential and exempt
350pursuant to this subparagraph shall be released to the
351department or any water management district if provided that the
352confidentiality specified by this subparagraph for such records
353is maintained.
354     6.  The provisions of subparagraphs 1. and 2. do shall not
355preclude the department or water management district from
356requiring compliance with water quality standards or with
357current best management practice requirements set forth in any
358applicable regulatory program authorized by law to protect for
359the purpose of protecting water quality. Additionally,
360subparagraphs 1. and 2. are applicable only to the extent that
361they do not conflict with any rules adopted by the department
362which that are necessary to maintain a federally delegated or
363approved program.
364     (8)  RULES.--The department is authorized to adopt rules
365pursuant to ss. 120.536(1) and 120.54 for:
366     (a)  Delisting water bodies or water body segments from the
367list developed under subsection (4) pursuant to the guidance
368under subsection (5).;
369     (b)  Administering Administration of funds to implement the
370total maximum daily load and basin management action planning
371programs.;
372     (c)  Water quality credit Procedures for pollutant trading
373among the pollutant sources to a water body or water body
374segment in the basin listed in subsection (9), which shall be
375consistent with federal requirements and implemented through
376permits, including water quality credit trading permits, other
377authorizations, or other legally binding agreements as
378established by department rule. By July 1, 2008, rulemaking must
379be initiated which provides for the following:, including a
380mechanism for the issuance and tracking of pollutant credits.
381Such procedures may be implemented through permits or other
382authorizations and must be legally binding. Prior to adopting
383rules for pollutant trading under this paragraph, and no later
384than November 30, 2006, the Department of Environmental
385Protection shall submit a report to the Governor, the President
386of the Senate, and the Speaker of the House of Representatives
387containing recommendations on such rules, including the proposed
388basis for equitable economically based agreements and the
389tracking and accounting of pollution credits or other similar
390mechanisms. Such recommendations shall be developed in
391cooperation with a technical advisory committee that includes
392experts in pollutant trading and representatives of potentially
393affected parties;
394     1.  The process to be used to determine how credits are
395generated, quantified, and validated.
396     2.  A publicly accessible water quality credit trading
397registry that tracks water quality credits, trading activities,
398and prices paid for such credits. Entities that participate in
399water quality credit trades shall timely report to the
400department the prices for credits and any state funding received
401for the facilities or activities that generated the credits. The
402department shall not participate in the establishment of credit
403prices.
404     3.  Limitations on the availability and use of water
405quality credits, including a list of eligible pollutants or
406parameters and limited water quality requirements and, where
407appropriate, adjustments to reflect best management practice
408performance uncertainties and water-segment-specific location
409factors.
410     4.  The timing and duration of credits and allowance for
411credit transferability.
412     5.  Mechanisms for determining and ensuring compliance with
413trading procedures, including recordkeeping, monitoring,
414reporting, and inspections. Generators of traded credits are
415responsible for achieving the load reductions on which the
416credits are based and persons or entities acquiring credits are
417responsible for enforcing the terms of water quality credit
418acquisition agreements and meeting applicable permit conditions.
419     (d)  The total maximum daily load calculation in accordance
420with paragraph (6)(a) immediately upon the effective date of
421this act, for those eight water segments within Lake Okeechobee
422proper as submitted to the United States Environmental
423Protection Agency pursuant to subsection (2).; and
424     (e)  Implementation of other specific provisions.
425     (9)  WATER QUALITY CREDIT TRADING.--Water quality credit
426trading shall be limited to the Lower St. Johns River Basin, as
427defined by the department, as a pilot project. The department
428may authorize water quality credit trading and establish
429specific requirements for trading in the adopted basin
430management action plan for the Lower St. Johns River Basin prior
431to the adoption of rules under paragraph (8)(c) in order to
432effectively implement the pilot project. Entities that
433participate in water quality credit trades shall timely report
434to the department the prices for credits, how the prices were
435determined, and any state funding received for the facilities or
436activities that generated the credits. The department shall not
437participate in the establishment of credit prices. No later than
43824 months after adoption of the basin management action plan for
439the Lower St. Johns River, the department shall submit a report
440to the Governor, the President of the Senate, and the Speaker of
441the House of Representatives on the effectiveness of the pilot
442project, including the following information:
443     (a)  A summary of how water quality credit trading was
444implemented, including the number of pounds of pollutants
445traded.
446     (b)  A description of the individual trades and estimated
447pollutant load reductions that are expected to result from each
448trade.
449     (c)  A description of any conditions placed on trades.
450     (d)  Prices associated with the trades, as reported by the
451traders.
452     (e)  A recommendation as to whether other areas of the
453state would benefit from water quality credit trading and, if
454so, an identification of the statutory changes necessary to
455expand the scope of trading.
456     Section 2.  Paragraphs (e) and (f) of subsection (2) of
457section 403.088, Florida Statutes, are amended to read:
458     403.088  Water pollution operation permits; conditions.--
459     (2)
460     (e)  However, if the discharge will not meet permit
461conditions or applicable statutes and rules, the department may
462issue, renew, revise, or reissue the operation permit if:
463     1.  The applicant is constructing, installing, or placing
464into operation, or has submitted plans and a reasonable schedule
465for constructing, installing, or placing into operation, an
466approved pollution abatement facility or alternative waste
467disposal system;
468     2.  The applicant needs permission to pollute the waters
469within the state for a period of time necessary to complete
470research, planning, construction, installation, or operation of
471an approved and acceptable pollution abatement facility or
472alternative waste disposal system;
473     3.  There is no present, reasonable, alternative means of
474disposing of the waste other than by discharging it into the
475waters of the state;
476     4.  The granting of an operation permit will be in the
477public interest; or
478     5.  The discharge will not be unreasonably destructive to
479the quality of the receiving waters; or.
480     6.  A water quality credit trade that meets the
481requirements of s. 403.067.
482     (f)  A permit issued, renewed, revised, or reissued
483pursuant to paragraph (e) shall be accompanied by an order
484establishing a schedule for achieving compliance with all permit
485conditions. Such permit may require compliance with the
486accompanying order.
487     Section 3.  This act shall take effect July 1, 2008.


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