Florida Senate - 2011                                    SB 1090
       By Senator Dean
       3-00879A-11                                           20111090__
    1                        A bill to be entitled                      
    2         An act relating to numeric nutrient water quality
    3         criteria; prohibiting the Department of Environmental
    4         Protection, the water management districts, and other
    5         governmental entities from implementing federal rules
    6         relating to numeric nutrient water quality criteria;
    7         providing that the prohibition does not limit a water
    8         management district or a state, regional, or local
    9         governmental entity from applying for a pollution
   10         discharge permit or complying with the permit or from
   11         implementing certain practices or measures;
   12         authorizing the department to adopt site-specific
   13         water quality criteria subject to certain conditions;
   14         providing that certain nutrient numeric standards
   15         already developed by the department constitute site
   16         specific criteria under certain conditions; providing
   17         that such criteria are subject to administrative
   18         challenge and may be modified; providing an effective
   19         date.
   21         WHEREAS, the United States Environmental Protection
   22  Agency’s rules for numeric nutrient water quality criteria for
   23  Florida’s lakes and flowing waters, finalized on December 6,
   24  2010, and published in Volume 75, No. 233 of the Federal
   25  Register, lack adequate scientific support and fail to take into
   26  account the unique characteristics of the state’s many thousands
   27  of rivers, streams, and lakes, and
   28         WHEREAS, the federal agency declined to subject its
   29  unprecedented, Florida-only numeric nutrient water quality
   30  criteria rules to an independent scientific peer review or
   31  economic analysis, and
   32         WHEREAS, implementation of the federal agency’s rules for
   33  numeric nutrient water quality criteria would have severe
   34  economic consequences on the state’s agriculture, local
   35  governments, wastewater and water utilities, economically vital
   36  industries, small businesses, and residents living below the
   37  poverty level or on fixed incomes, and
   38         WHEREAS, implementation of the federal agency’s rules for
   39  numeric nutrient water quality criteria would require state
   40  residents to needlessly expend resources pursuing numerous
   41  exemptions, variances, and other relief mechanisms made
   42  necessary by the scientific flaws underlying the federal
   43  agency’s criteria, which will result in delaying restoration
   44  projects that are already underway in the total maximum daily
   45  load program and other water quality programs, and
   46         WHEREAS, the federal Clean Water Act grants this state
   47  primacy in protecting state waters from pollution and the
   48  federal agency’s rulemaking regarding numeric nutrient water
   49  quality criteria undermines this cooperative federalism
   50  structure, NOW, THEREFORE,
   53  Be It Enacted by the Legislature of the State of Florida:
   55         Section 1. State policy concerning numeric nutrient water
   56  quality criteria.—
   57         (1) With respect to the United States Environmental
   58  Protection Agency’s rules for numeric nutrient water quality
   59  criteria which were finalized on December 6, 2010, and published
   60  in Vol. 75, No. 233 of the Federal Register:
   61         (a) The Department of Environmental Protection, the water
   62  management districts, and local governmental entities may not
   63  implement or give any force or effect to such rules in any
   64  program administered by the department.
   65         (b) The prohibition in paragraph (a) does not limit a water
   66  management district or other state, regional, or local
   67  governmental entity from applying for any pollution discharge
   68  permit or complying with the conditions of such permits,
   69  including those issued under the National Pollution Discharge
   70  Elimination System, or from implementing best management
   71  practices or source control or pollution abatement measures for
   72  water quality improvement programs as provided by law.
   73         (2) Notwithstanding subsection (1), the department may
   74  adopt numeric nutrient water quality criteria for a particular
   75  surface water or group of surface waters if the department
   76  determines that such criteria are necessary to protect aquatic
   77  life that is reasonably expected to inhabit those waters. Site
   78  specific criteria adopted pursuant to this subsection:
   79         (a) Must be based on objective and credible data, studies,
   80  and reports establishing nutrient levels that water bodies may
   81  accept or assimilate without exhibiting imbalances of naturally
   82  occurring populations of flora and fauna, based on a cause and
   83  effect relationship between nutrient levels and biological
   84  responses.
   85         (b) May be expressed in terms of concentration, mass
   86  loading, waste load allocation, load allocation, and surrogate
   87  standards, such as chlorophyll a, and may be supplemented by
   88  narrative statements.
   89         (3) Numeric nutrient total maximum daily loads and
   90  associated numeric interpretations of the narrative nutrient
   91  criteria, whether total nitrogen, total phosphorus,
   92  nitrate/nitrite, or a surrogate nutrient standard, such as
   93  chlorophyll a, biological demand, or a specific biological
   94  metric, developed by the department and approved by the United
   95  States Environmental Protection Agency as of December 6, 2010,
   96  constitute site-specific numeric nutrient water quality
   97  criteria.
   98         (a) Such site-specific water quality criteria are:
   99         1. Not effective if the United States Environmental
  100  Protection Agency disapproves, approves in part, or conditions
  101  its approval of the criteria, unless ratified by the
  102  Legislature.
  103         2. Subject to s. 403.067, Florida Statutes, including any
  104  rules or orders issued thereunder, and to challenges under s.
  105  120.56(3), Florida Statutes.
  106         (b) Once approved and effective, site-specific water
  107  quality criteria may be modified, based on objective and
  108  credible data, studies, and reports, by department rulemaking in
  109  accordance with s. 403.804, Florida Statutes.
  110         (4) This section does not derogate or limit county and
  111  municipal home rule authority.
  112         Section 2. This act shall take effect July 1, 2011.