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. 20 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, 51 52 53 Be It Enacted by the Legislature of the State of Florida: 54 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.