CS/HB 547

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
54	basin 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
59	provide for phased implementation of these management strategies
60	to 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
77	by 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
87	intended to involve the broadest possible range of interested
88	parties, with the objective of encouraging the greatest amount
89	of 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
96	pollution sources, are invited to participate in the process.
97	The department shall hold at least one public meeting in the
98	vicinity of the watershed or basin to discuss and receive
99	comments during the planning process and shall otherwise
100	encourage public participation to the greatest practicable
101	extent. Notice of the public meeting must shall be published in
102	a newspaper of general circulation in each county in which the
103	watershed or basin lies not less than 5 days nor more than 15
104	days before the public meeting. A basin management action plan
105	shall not supplant or otherwise alter any assessment made under
106	subsection (3) or subsection (4) or any calculation or initial
107	allocation.
108	4.  The department shall adopt all or any part of a basin
109	management action plan and any amendment to such plan by
110	secretarial order pursuant to chapter 120 to implement the
111	provisions of this section.
112	5.  The basin management action plan must shall include
113	milestones for implementation and water quality improvement, and
114	an associated water quality monitoring component sufficient to
115	evaluate whether reasonable progress in pollutant load
116	reductions is being achieved over time. An assessment of
117	progress toward these milestones shall be conducted every 5
118	years, and revisions to the plan shall be made as appropriate.
119	Revisions to the basin management action plan shall be made by
120	the department in cooperation with basin stakeholders. Revisions
121	to the management strategies required for nonpoint sources must
122	shall follow the procedures set forth in subparagraph (c)4.
123	Revised basin management action plans must shall be adopted
124	pursuant to subparagraph 4.
125	6.  In accordance with procedures adopted by rule under
126	paragraph (9)(c), basin management action plans may allow point
127	or nonpoint sources that will achieve greater pollutant
128	reductions than required by an adopted total maximum load or
129	wasteload allocation to generate, register, and trade water
130	quality credits for the excess reductions to enable other
131	sources to achieve their allocation; however, the generation of
132	water quality credits does not remove the obligation of a source
133	or activity to meet applicable technology requirements or
134	adopted best management practices. Such plans must allow trading
135	between NPDES permittees, and trading that may or may not
136	involve NPDES permittees, where the generation or use of the
137	credits involve an entity or activity not subject to department
138	water discharge permits whose owner voluntarily elects to obtain
139	department authorization for the generation and sale of credits.
140	7.  The provisions of the department's rule relating to the
141	equitable abatement of pollutants into surface waters shall not
142	be applied to water bodies or water body segments for which a
143	basin management plan that takes into account future new or
144	expanded activities or discharges has been adopted under this
145	section.
146	(b)  Total maximum daily load implementation.--
147	1.  The department shall be the lead agency in coordinating
148	the implementation of the total maximum daily loads through
149	existing water quality protection programs. Application of a
150	total maximum daily load by a water management district must
151	shall be consistent with this section and shall not require the
152	issuance of an order or a separate action pursuant to s.
153	120.536(1) or s. 120.54 for the adoption of the calculation and
154	allocation previously established by the department. Such
155	programs may include, but are not limited to:
156	a.  Permitting and other existing regulatory programs,
157	including water-quality-based effluent limitations;
158	b.  Nonregulatory and incentive-based programs, including
159	best management practices, cost sharing, waste minimization,
160	pollution prevention, agreements established pursuant to s.
161	403.061(21), and public education;
162	c.  Other water quality management and restoration
163	activities, for example surface water improvement and management
164	plans approved by water management districts or basin management
165	action plans developed pursuant to this subsection;
166	d.  Trading of water quality credits Pollutant trading or
167	other equitable economically based agreements;
168	e.  Public works including capital facilities; or
169	f.  Land acquisition.
170	2.  For a basin management action plan adopted pursuant to
171	paragraph (a) subparagraph (a)4., any management strategies and
172	pollutant reduction requirements associated with a pollutant of
173	concern for which a total maximum daily load has been developed,
174	including effluent limits set forth for a discharger subject to
175	NPDES permitting, if any, must shall be included in a timely
176	manner in subsequent NPDES permits or permit modifications for
177	that discharger. The department shall not impose limits or
178	conditions implementing an adopted total maximum daily load in
179	an NPDES permit until the permit expires, the discharge is
180	modified, or the permit is reopened pursuant to an adopted basin
181	management action plan.
182	a.  Absent a detailed allocation, total maximum daily loads
183	shall be implemented through NPDES permit conditions that
184	provide for afford a compliance schedule. In such instances, a
185	facility's NPDES permit must shall allow time for the issuance
186	of an order adopting the basin management action plan. The time
187	allowed for the issuance of an order adopting the plan shall not
188	exceed 5 years. Upon issuance of an order adopting the plan, the
189	permit must shall be reopened or renewed, as necessary, and
190	permit conditions consistent with the plan must shall be
191	established. Notwithstanding the other provisions of this
192	subparagraph, upon request by a NPDES permittee, the department
193	as part of a permit issuance, renewal, or modification may
194	establish individual allocations prior to the adoption of a
195	basin management action plan.
196	b.  For holders of NPDES municipal separate storm sewer
197	system permits and other stormwater sources, implementation of a
198	total maximum daily load or basin management action plan must
199	shall be achieved, to the maximum extent practicable, through
200	the use of best management practices or other management
201	measures.
202	c.  The basin management action plan does not relieve the
203	discharger from any requirement to obtain, renew, or modify an
204	NPDES permit or to abide by other requirements of the permit.
205	d.  Management strategies set forth in a basin management
206	action plan to be implemented by a discharger subject to
207	permitting by the department must shall be completed pursuant to
208	the schedule set forth in the basin management action plan. This
209	implementation schedule may extend beyond the 5-year term of an
210	NPDES permit.
211	e.  Management strategies and pollution reduction
212	requirements set forth in a basin management action plan for a
213	specific pollutant of concern shall not be subject to challenge
214	under chapter 120 at the time they are incorporated, in an
215	identical form, into a subsequent NPDES permit or permit
216	modification.
217	f.  For nonagricultural pollutant sources not subject to
218	NPDES permitting but permitted pursuant to other state,
219	regional, or local water quality programs, the pollutant
220	reduction actions adopted in a basin management action plan
221	shall be implemented to the maximum extent practicable as part
222	of those permitting programs.
223	g.  A nonpoint source discharger included in a basin
224	management action plan must shall demonstrate compliance with
225	the pollutant reductions established under pursuant to
226	subsection (6) by either implementing the appropriate best
227	management practices established pursuant to paragraph (c) or
228	conducting water quality monitoring prescribed by the department
229	or a water management district. A nonpoint source discharger
230	may, in accordance with department rules, supplement the
231	implementation of best-management practices with water quality
232	credit trades in order to demonstrate compliance with the
233	pollutant reductions established under subsection (6).
234	h.  A nonpoint source discharger included in a basin
235	management action plan may be subject to enforcement action by
236	the department or a water management district based upon a
237	failure to implement the responsibilities set forth in sub-
238	subparagraph g.
239	i.  A landowner, discharger, or other responsible person
240	who is implementing applicable management strategies specified
241	in an adopted basin management action plan shall not be required
242	by permit, enforcement action, or otherwise to implement
243	additional management strategies to reduce pollutant loads to
244	attain the pollutant reductions established pursuant to
245	subsection (6) and shall be deemed to be in compliance with this
246	section. This subparagraph does not limit the authority of the
247	department to amend a basin management action plan as specified
248	in subparagraph (a)5.
249	(c)  Best management practices.--
250	1.  The department, in cooperation with the water
251	management districts and other interested parties, as
252	appropriate, may develop suitable interim measures, best
253	management practices, or other measures necessary to achieve the
254	level of pollution reduction established by the department for
255	nonagricultural nonpoint pollutant sources in allocations
256	developed pursuant to subsection (6) and this subsection. These
257	practices and measures may be adopted by rule by the department
258	and the water management districts pursuant to ss. 120.536(1)
259	and 120.54, and, where adopted by rule, shall be implemented by
260	those parties responsible for nonagricultural nonpoint source
261	pollution.
262	2.  The Department of Agriculture and Consumer Services may
263	develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
264	suitable interim measures, best management practices, or other
265	measures necessary to achieve the level of pollution reduction
266	established by the department for agricultural pollutant sources
267	in allocations developed pursuant to subsection (6) and this
268	subsection or for programs implemented pursuant to paragraph
269	(13)(b) (11)(b). These practices and measures may be implemented
270	by those parties responsible for agricultural pollutant sources
271	and the department, the water management districts, and the
272	Department of Agriculture and Consumer Services shall assist
273	with implementation. In the process of developing and adopting
274	rules for interim measures, best management practices, or other
275	measures, the Department of Agriculture and Consumer Services
276	shall consult with the department, the Department of Health, the
277	water management districts, representatives from affected
278	farming groups, and environmental group representatives. Such
279	rules must shall also incorporate provisions for a notice of
280	intent to implement the practices and a system to assure the
281	implementation of the practices, including recordkeeping
282	requirements.
283	3.  Where interim measures, best management practices, or
284	other measures are adopted by rule, the effectiveness of such
285	practices in achieving the levels of pollution reduction
286	established in allocations developed by the department pursuant
287	to subsection (6) and this subsection or in programs implemented
288	pursuant to paragraph (13)(b) must (11)(b) shall be verified at
289	representative sites by the department. The department shall use
290	best professional judgment in making the initial verification
291	that the best management practices are reasonably expected to be
292	effective and, where applicable, must shall notify the
293	appropriate water management district or the Department of
294	Agriculture and Consumer Services of its initial verification
295	before prior to the adoption of a rule proposed pursuant to this
296	paragraph. Implementation, in accordance with rules adopted
297	under this paragraph, of practices that have been initially
298	verified to be effective, or verified to be effective by
299	monitoring at representative sites, by the department, shall
300	provide a presumption of compliance with state water quality
301	standards and release from the provisions of s. 376.307(5) for
302	those pollutants addressed by the practices, and the department
303	is not authorized to institute proceedings against the owner of
304	the source of pollution to recover costs or damages associated
305	with the contamination of surface water or groundwater caused by
306	those pollutants. Research projects funded by the department, a
307	water management district, or the Department of Agriculture and
308	Consumer Services to develop or demonstrate interim measures or
309	best management practices shall be granted a presumption of
310	compliance with state water quality standards and a release from
311	the provisions of s. 376.307(5). The presumption of compliance
312	and release is shall be limited to the research site and only
313	for those pollutants addressed by the interim measures or best
314	management practices. Eligibility for the presumption of
315	compliance and release is shall be limited to research projects
316	on sites where the owner or operator of the research site and
317	the department, a water management district, or the Department
318	of Agriculture and Consumer Services have entered into a
319	contract or other agreement that, at a minimum, specifies the
320	research objectives, the cost-share responsibilities of the
321	parties, and a schedule that details the beginning and ending
322	dates of the project.
323	4.  Where water quality problems are demonstrated, despite
324	the appropriate implementation, operation, and maintenance of
325	best management practices and other measures required by
326	according to rules adopted under this paragraph, the department,
327	a water management district, or the Department of Agriculture
328	and Consumer Services, in consultation with the department,
329	shall institute a reevaluation of the best management practice
330	or other measure. Should the reevaluation determine that the
331	best management practice or other measure requires modification,
332	the department, a water management district, or the Department
333	of Agriculture and Consumer Services, as appropriate, shall
334	revise the rule to require implementation of the modified
335	practice within a reasonable time period as specified in the
336	rule.
337	5.  Agricultural records relating to processes or methods
338	of production, costs of production, profits, or other financial
339	information held by the Department of Agriculture and Consumer
340	Services pursuant to subparagraphs 3. and 4. or pursuant to any
341	rule adopted pursuant to subparagraph 2. are confidential and
342	exempt from s. 119.07(1) and s. 24(a), Art. I of the State
343	Constitution. Upon request, records made confidential and exempt
344	pursuant to this subparagraph shall be released to the
345	department or any water management district provided that the
346	confidentiality specified by this subparagraph for such records
347	is maintained.
348	6.  The provisions of subparagraphs 1. and 2. do shall not
349	preclude the department or water management district from
350	requiring compliance with water quality standards or with
351	current best management practice requirements set forth in any
352	applicable regulatory program authorized by law for the purpose
353	of protecting water quality. Additionally, subparagraphs 1. and
354	2. are applicable only to the extent that they do not conflict
355	with any rules adopted by the department that are necessary to
356	maintain a federally delegated or approved program.
357	(8)  WATER QUALITY CREDIT TRADING.--
358	(a)  Water quality credit trading must be consistent with
359	federal law and regulation.
360	(b)  Water quality credit trading must be implemented
361	through permits, including water quality credit trading permits,
362	other authorizations, or other legally binding agreements as
363	established by department rule.
364	(c)  The department shall establish the pollutant load-
365	reduction value of water quality credits and shall be
366	responsible for authorizing their use.
367	(d)  A person that acquires water quality credits ("buyer")
368	shall timely submit to the department an affidavit, signed by
369	the buyer and the credit generator ("seller"), disclosing the
370	term of acquisition, number of credits, unit credit price paid,
371	and any state funding received for the facilities or activities
372	that generate the credits. The department shall not participate
373	in the establishment of credit prices.
374	(e)  Sellers of water quality credits are responsible for
375	achieving the load reductions on which the credits are based and
376	complying with the terms of the department authorization and any
377	trading agreements into which they may have entered.
378	(f)  Buyers of water quality credits are responsible for
379	complying with the terms of the department water discharge
380	permit.
381	(g)  The department shall take appropriate action to
382	address the failure of a credit seller to fulfill its
383	obligations, including, as necessary, deeming the seller's
384	credits invalid if the seller cannot achieve the load reductions
385	on which the credits were based in a reasonable time. If the
386	department determines duly acquired water quality credits to be
387	invalid, in whole or in part, thereby causing the credit buyer
388	to be unable to timely meet its pollutant-reduction obligations
389	under this section, the department shall issue an order
390	establishing the actions required of the buyer to meet its
391	obligations by alternative means and a reasonable schedule for
392	completing the actions. The invalidation of credits shall not
393	itself constitute a violation of the buyer's water discharge
394	permit.
395	(9)(8)  RULES.--The department is authorized to adopt rules
396	pursuant to ss. 120.536(1) and 120.54 for:
397	(a)  Delisting water bodies or water body segments from the
398	list developed under subsection (4) pursuant to the guidance
399	under subsection (5).;
400	(b)  Administering Administration of funds to implement the
401	total maximum daily load and basin management action planning
402	programs.;
403	(c)  Water quality credit Procedures for pollutant trading
404	among the pollutant sources to a water body or water body
405	segment. By September 1, 2008, rulemaking must be initiated
406	which provides for the following:, including a mechanism for the
407	issuance and tracking of pollutant credits. Such procedures may
408	be implemented through permits or other authorizations and must
409	be legally binding. Prior to adopting rules for pollutant
410	trading under this paragraph, and no later than November 30,
411	2006, the Department of Environmental Protection shall submit a
412	report to the Governor, the President of the Senate, and the
413	Speaker of the House of Representatives containing
414	recommendations on such rules, including the proposed basis for
415	equitable economically based agreements and the tracking and
416	accounting of pollution credits or other similar mechanisms.
417	Such recommendations shall be developed in cooperation with a
418	technical advisory committee that includes experts in pollutant
419	trading and representatives of potentially affected parties;
420	1.  The process to be used to determine how credits are
421	generated, quantified, and validated.
422	2.  A publicly accessible water quality credit trading
423	registry that tracks water quality credits, trading activities,
424	and prices paid for credits.
425	3.  Limitations on the availability and use of water
426	quality credits, including a list of eligible pollutants or
427	parameters and minimum water quality requirements and, where
428	appropriate, adjustments to reflect best-management practice
429	performance uncertainties and water-segment-specific location
430	factors.
431	4.  The timing and duration of credits and allowance for
432	credit transferability.
433	5.  Mechanisms for determining and ensuring compliance with
434	trading procedures, including recordkeeping, monitoring,
435	reporting, and inspections.
436
437	At the time of publication of the draft rules on water quality
438	credit trading, the department shall submit a copy to the United
439	States Environmental Protection Agency for review.
440	(d)  The total maximum daily load calculation in accordance
441	with paragraph (6)(a) immediately upon the effective date of
442	this act, for those eight water segments within Lake Okeechobee
443	proper as submitted to the United States Environmental
444	Protection Agency pursuant to subsection (2).;and
445	(e)  Implementation of other specific provisions.
446	(10)  Water quality credit trading shall be limited to the
447	Lower St. Johns River Basin, as defined by the department, as a
448	pilot project. The department may authorize water quality credit
449	trading and establish specific requirements for trading in the
450	adopted basin management action plan for the Lower St. Johns
451	River Basin prior to the adoption of rules under paragraph
452	(9)(c) in order to effectively implement the pilot project.
453	Entities that participate in water quality credit trades shall
454	timely report to the department the prices for credits, how the
455	prices were determined, and any state funding received for the
456	facilities or activities that generated the credits. The
457	department shall not participate in the establishment of credit
458	prices. No later than 24 months after adoption of the basin
459	management action plan for the Lower St. Johns River, the
460	department shall submit a report to the Governor, the President
461	of the Senate, and the Speaker of the House of Representatives
462	on the effectiveness of the pilot project, including the
463	following information:
464	(a)  A summary of how water quality credit trading was
465	implemented, including the number of pounds of pollutants
466	traded.
467	(b)  A description of the individual trades and estimated
468	pollutant load reductions that are expected to result from each
469	trade.
470	(c)  A description of any conditions placed on trades.
471	(d)  Prices associated with the trades, as reported by the
472	traders.
473	(e)  A recommendation as to whether other areas of the
474	state would benefit from water quality credit trading and, if
475	so, an identification of the statutory changes necessary to
476	expand the scope of trading.
477	Section 2.  Paragraphs (e) and (f) of subsection (2) of
478	section 403.088, Florida Statutes, are amended to read:
479	403.088  Water pollution operation permits; conditions.--
480	(2)
481	(e)  However, if the discharge will not meet permit
482	conditions or applicable statutes and rules, the department may
483	issue, renew, revise, or reissue the operation permit if:
484	1.  The applicant is constructing, installing, or placing
485	into operation, or has submitted plans and a reasonable schedule
486	for constructing, installing, or placing into operation, an
487	approved pollution abatement facility or alternative waste
488	disposal system;
489	2.  The applicant needs permission to pollute the waters
490	within the state for a period of time necessary to complete
491	research, planning, construction, installation, or operation of
492	an approved and acceptable pollution abatement facility or
493	alternative waste disposal system;
494	3.  There is no present, reasonable, alternative means of
495	disposing of the waste other than by discharging it into the
496	waters of the state;
497	4.  The granting of an operation permit will be in the
498	public interest; or
499	5.  The discharge will not be unreasonably destructive to
500	the quality of the receiving waters; or.
501	6.  A water quality credit trade that meets the
502	requirements of s. 403.067.
503	(f)  A permit issued, renewed, or reissued pursuant to
504	paragraph (e) shall be accompanied by an order establishing a
505	schedule for achieving compliance with all permit conditions.
506	Such permit may require compliance with the accompanying order.
507	Section 3.  This act shall take effect July 1, 2008.
508
509

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