Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS for SB 1858
                                Barcode 643860                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Floor: WD            .                                
             03/09/2012 11:18 PM       .                                

       Senator Garcia moved the following:
    1         Senate Amendment (with title amendment)
    3         Between lines 29 and 30
    4  insert:
    5         Section 2. Subsections (17) through (26) of section
    6  373.019, Florida Statutes, are renumbered as subsections (19)
    7  through (28), respectively, and new subsections (17) and (18)
    8  are added to that section to read:
    9         373.019 Definitions.—When appearing in this chapter or in
   10  any rule, regulation, or order adopted pursuant thereto, the
   11  term:
   12         (17) “Reclaimed water” means water that has received at
   13  least secondary treatment and basic disinfection and is reused
   14  after flowing out of a domestic wastewater treatment facility.
   15  Reclaimed water is not subject to regulation pursuant to s.
   16  373.175 or part II of this chapter until it has been discharged
   17  into waters as defined in s. 403.031(13).
   18         (18) “Reclaimed water distribution system” means a network
   19  of pipes, pumping facilities, storage facilities, and
   20  appurtenances designed to convey and distribute reclaimed water
   21  from one or more domestic wastewater treatment facilities to one
   22  or more users of reclaimed water.
   23         Section 3. Section 373.250, Florida Statutes, is amended to
   24  read:
   25         373.250 Reuse of reclaimed water.—
   26         (1)(a) The encouragement and promotion of water
   27  conservation and reuse of reclaimed water, as defined by the
   28  department and used in this chapter, are state objectives and
   29  considered to be in the public interest. The Legislature finds
   30  that the use of reclaimed water provided by domestic wastewater
   31  treatment plants permitted and operated under a reuse program
   32  approved by the department is environmentally acceptable and not
   33  a threat to public health and safety.
   34         (b) The Legislature recognizes that the interest of the
   35  state to sustain water resources for the future through the use
   36  of reclaimed water must be balanced with the need of reuse
   37  utilities to operate and manage reclaimed water systems in
   38  accordance with a variety and range of circumstances, including
   39  regulatory and financial considerations, which influence the
   40  development and operation of reclaimed water systems across the
   41  state.
   42         (2) Reclaimed water is an alternative water supply as
   43  defined in s. 373.019(1) and is eligible for alternative water
   44  supply funding. A contract for state or district funding
   45  assistance for the development of reclaimed water as an
   46  alternative water supply may include provisions listed under s.
   47  373.707(9). The use of reclaimed water may not be excluded from
   48  regional water supply planning under s. 373.709.
   49         (3)(2)(a) For purposes of this section, “uncommitted” means
   50  the average amount of reclaimed water produced during the three
   51  lowest-flow months minus the amount of reclaimed water that a
   52  reclaimed water provider is contractually obligated to provide
   53  to a customer or user.
   54         (b) Reclaimed water may be presumed available to a
   55  consumptive use permit applicant when a utility exists which
   56  provides reclaimed water, which has determined that it has
   57  uncommitted reclaimed water capacity, and which has distribution
   58  facilities, which are initially provided by the utility at its
   59  cost, to the site of the affected applicant’s proposed use.
   60         (b) A water management district may not require a permit
   61  for the use of reclaimed water. However, when a use includes
   62  surface water or groundwater, the permit for such sources may
   63  include conditions that govern the use of the permitted sources
   64  in relation to the feasibility or use of reclaimed water.
   65         (c) A water management district may require the use of
   66  reclaimed water in lieu of all or a portion of a proposed use of
   67  surface water or groundwater by an applicant when the use of
   68  uncommitted reclaimed water is available; is environmentally,
   69  economically, and technically feasible; and is of such quality
   70  and reliability as is necessary to the user. However, a water
   71  management district may neither specify any user to whom the
   72  reuse utility must provide reclaimed water nor restrict the use
   73  of reclaimed water provided by a reuse utility to a customer in
   74  a permit or, unless requested by the reuse utility, in a water
   75  shortage order or water shortage emergency order this paragraph
   76  does not authorize a water management district to require a
   77  provider of reclaimed water to redirect reclaimed water from one
   78  user to another or to provide uncommitted water to a specific
   79  user if such water is anticipated to be used by the provider, or
   80  a different user selected by the provider, within a reasonable
   81  amount of time.
   82         (d) The South Florida Water Management District shall
   83  require the use of reclaimed water made available by the
   84  elimination of wastewater ocean outfall discharges as provided
   85  for in s. 403.086(9) in lieu of surface water or groundwater
   86  when the use of uncommitted reclaimed water is available; is
   87  environmentally, economically, and technically feasible; and is
   88  of such quality and reliability as is necessary to the user.
   89  Such reclaimed water may also be required in lieu of other
   90  alternative sources. In determining whether or not to require
   91  such reclaimed water in lieu of other alternative sources, the
   92  water management district shall consider existing infrastructure
   93  investments in place or obligated to be constructed by an
   94  executed contract or similar binding agreement as of July 1,
   95  2011, for the development of other alternative sources.
   96         (4)(3) The water management district shall, in consultation
   97  with the department, adopt rules to implement this section. Such
   98  rules shall include, but not be limited to:
   99         (a) Provisions to permit use of water from other sources in
  100  emergency situations or if reclaimed water becomes unavailable,
  101  for the duration of the emergency or the unavailability of
  102  reclaimed water. These provisions shall also specify the method
  103  for establishing the quantity of water to be set aside for use
  104  in emergencies or when reclaimed water becomes unavailable. The
  105  amount set aside is subject to periodic review and revision. The
  106  methodology shall take into account the risk that reclaimed
  107  water may not be available in the future, the risk that other
  108  sources may be fully allocated to other uses in the future, the
  109  nature of the uses served with reclaimed water, the extent to
  110  which the applicant intends to rely upon reclaimed water, and
  111  the extent of economic harm which may result if other sources
  112  are not available to replace the reclaimed water. It is the
  113  intent of this paragraph to ensure that users of reclaimed water
  114  have the same access to ground or surface water and will
  115  otherwise be treated in the same manner as other users of the
  116  same class not relying on reclaimed water.
  117         (b) A water management district shall not adopt any rule
  118  which gives preference to users within any class of use
  119  established under s. 373.246 who do not use reclaimed water over
  120  users within the same class who use reclaimed water.
  121         (b)(c) Provisions to require permit applicants that are not
  122  reuse utilities to provide, as part of their reclaimed water
  123  feasibility evaluation for a nonpotable use, written
  124  documentation from a reuse utility addressing the availability
  125  of reclaimed water. This requirement shall apply when the
  126  applicant’s proposed use is within an area that is or may be
  127  served with reclaimed water by a reuse utility within a 5-year
  128  horizon, as established by the reuse utility and provided to the
  129  district. If the applicable reuse utility fails to respond or
  130  does not provide the information required under paragraph (c)
  131  (d) within 30 days after receipt of the request, the applicant
  132  shall provide to the district a copy of the written request and
  133  a statement that the utility failed to provide the requested
  134  information. The district is not required to adopt, by rule, the
  135  area where written documentation from a reuse utility is
  136  required, but the district shall publish the area, and any
  137  updates thereto, on the district’s website. This paragraph may
  138  not be construed to limit the ability of a district to require
  139  the use of reclaimed water or to limit a utility’s ability to
  140  plan reclaimed water infrastructure.
  141         (c)(d) Provisions specifying the content of the
  142  documentation required in paragraph (b) (c), including
  143  sufficient information regarding the availability and costs
  144  associated with the connection to and the use of reclaimed
  145  water, to facilitate the permit applicant’s reclaimed water
  146  feasibility evaluation.
  148  A water management district may not adopt any rule that gives
  149  preference to users within any class of use established under s.
  150  373.246 who do not use reclaimed water over users within the
  151  same class who use reclaimed water.
  152         (5)(a) No later than October 1, 2012, the department shall
  153  initiate rulemaking to adopt revisions to the water resource
  154  implementation rule, as defined in s. 373.019(23), which shall
  155  include:
  156         1. Criteria for the use of a proposed impact offset derived
  157  from the use of reclaimed water when a water management district
  158  evaluates an application for a consumptive use permit. As used
  159  in this subparagraph, the term “impact offset” means the use of
  160  reclaimed water to reduce or eliminate a harmful impact that has
  161  occurred or would otherwise occur as a result of other surface
  162  water or groundwater withdrawals.
  163         2. Criteria for the use of substitution credits where a
  164  water management district has adopted rules establishing
  165  withdrawal limits from a specified water resource within a
  166  defined geographic area. As used in this subparagraph, the term
  167  “substitution credit” means the use of reclaimed water to
  168  replace all or a portion of an existing permitted use of
  169  resource-limited surface water or groundwater, allowing a
  170  different user or use to initiate a withdrawal or increase its
  171  withdrawal from the same resource-limited surface water or
  172  groundwater source provided that the withdrawal creates no net
  173  adverse impact on the limited water resource or creates a net
  174  positive impact if required by water management district rule as
  175  part of a strategy to protect or recover a water resource.
  176         (b) Within 60 days after the final adoption by the
  177  department of the revisions to the water resource implementation
  178  rule required under paragraph (a), each water management
  179  district shall initiate rulemaking to incorporate those
  180  revisions by reference into the rules of the district.
  181         (6)(4) Reuse utilities and the applicable water management
  182  district or districts are encouraged to periodically coordinate
  183  and share information concerning the status of reclaimed water
  184  distribution system construction, the availability of reclaimed
  185  water supplies, and existing consumptive use permits in areas
  186  served by the reuse utility.
  187         (7)(5)Nothing in This section does not impair or limit the
  188  authority of shall impair a water management district district’s
  189  authority to plan for and regulate consumptive uses of water
  190  under this chapter or regulate the use of surface water or
  191  groundwater to supplement a reclaimed water system.
  192         (8)(6) This section applies to applications for new
  193  consumptive use permits and renewals and modifications of
  194  existing consumptive use permits.
  195         Section 4. This act does not:
  196         (1) Impair or limit the authority of the Department of
  197  Environmental Protection to regulate water quality, including
  198  reclaimed water, pursuant to chapter 403, Florida Statutes, or
  199  to require a reuse feasibility study pursuant to s. 403.064,
  200  Florida Statutes.
  201         (2) Impair or limit the authority of a water management
  202  district to conduct regional water supply planning pursuant
  203  chapter 373, Florida Statutes.
  204         (3) Affect any requirement that may be applicable to
  205  funding of alternative water supply development, including
  206  reclaimed water, pursuant to s. 373.707, Florida Statutes.
  207         (4) Affect or limit any applicable provisions regarding the
  208  setting of rates by public and private water utilities pursuant
  209  to chapter 153 or chapter 180, Florida Statutes, or s. 367.081,
  210  Florida Statutes.
  211         (5) Affect or impair the powers of the Governor under the
  212  State Constitution; general law, including, but not limited to,
  213  chapter 14, Florida Statutes; and police powers of the state to
  214  adopt and enforce emergency rules, regulations, and orders.
  215         Section 5. Paragraph (d) of subsection (1) of section
  216  373.036, Florida Statutes, is amended to read:
  217         373.036 Florida water plan; district water management
  218  plans.—
  219         (1) FLORIDA WATER PLAN.—In cooperation with the water
  220  management districts, regional water supply authorities, and
  221  others, the department shall develop the Florida water plan. The
  222  Florida water plan shall include, but not be limited to:
  223         (d) Goals, objectives, and guidance for the development and
  224  review of programs, rules, and plans relating to water
  225  resources, based on statutory policies and directives. The state
  226  water policy rule, renamed the water resource implementation
  227  rule pursuant to s. 373.019(25) 373.019(23), shall serve as this
  228  part of the plan. Amendments or additions to this part of the
  229  Florida water plan shall be adopted by the department as part of
  230  the water resource implementation rule. In accordance with s.
  231  373.114, the department shall review rules of the water
  232  management districts for consistency with this rule. Amendments
  233  to the water resource implementation rule must be adopted by the
  234  secretary of the department and be submitted to the President of
  235  the Senate and the Speaker of the House of Representatives
  236  within 7 days after publication in the Florida Administrative
  237  Weekly. Amendments shall not become effective until the
  238  conclusion of the next regular session of the Legislature
  239  following their adoption.
  240         Section 6. Subsection (1) of section 373.421, Florida
  241  Statutes, is amended to read:
  242         373.421 Delineation methods; formal determinations.—
  243         (1) The Environmental Regulation Commission shall adopt a
  244  unified statewide methodology for the delineation of the extent
  245  of wetlands as defined in s. 373.019(27) 373.019(25). This
  246  methodology shall consider regional differences in the types of
  247  soils and vegetation that may serve as indicators of the extent
  248  of wetlands. This methodology shall also include provisions for
  249  determining the extent of surface waters other than wetlands for
  250  the purposes of regulation under s. 373.414. This methodology
  251  shall not become effective until ratified by the Legislature.
  252  Subsequent to legislative ratification, the wetland definition
  253  in s. 373.019(27) 373.019(25) and the adopted wetland
  254  methodology shall be binding on the department, the water
  255  management districts, local governments, and any other
  256  governmental entities. Upon ratification of such wetland
  257  methodology, the Legislature preempts the authority of any water
  258  management district, state or regional agency, or local
  259  government to define wetlands or develop a delineation
  260  methodology to implement the definition and determines that the
  261  exclusive definition and delineation methodology for wetlands
  262  shall be that established pursuant to s. 373.019(27) 373.019(25)
  263  and this section. Upon such legislative ratification, any
  264  existing wetlands definition or wetland delineation methodology
  265  shall be superseded by the wetland definition and delineation
  266  methodology established pursuant to this chapter. Subsequent to
  267  legislative ratification, a delineation of the extent of a
  268  surface water or wetland by the department or a water management
  269  district, pursuant to a formal determination under subsection
  270  (2), or pursuant to a permit issued under this part in which the
  271  delineation was field-verified by the permitting agency and
  272  specifically approved in the permit, shall be binding on all
  273  other governmental entities for the duration of the formal
  274  determination or permit. All existing rules and methodologies of
  275  the department, the water management districts, and local
  276  governments, regarding surface water or wetland definition and
  277  delineation shall remain in full force and effect until the
  278  common methodology rule becomes effective. However, this shall
  279  not be construed to limit any power of the department, the water
  280  management districts, and local governments to amend or adopt a
  281  surface water or wetland definition or delineation methodology
  282  until the common methodology rule becomes effective.
  283         Section 7. Paragraphs (r) and (u) of subsection (1) of
  284  section 403.813, Florida Statutes, are amended to read:
  285         403.813 Permits issued at district centers; exceptions.—
  286         (1) A permit is not required under this chapter, chapter
  287  373, chapter 61-691, Laws of Florida, or chapter 25214 or
  288  chapter 25270, 1949, Laws of Florida, for activities associated
  289  with the following types of projects; however, except as
  290  otherwise provided in this subsection, nothing in this
  291  subsection relieves an applicant from any requirement to obtain
  292  permission to use or occupy lands owned by the Board of Trustees
  293  of the Internal Improvement Trust Fund or any water management
  294  district in its governmental or proprietary capacity or from
  295  complying with applicable local pollution control programs
  296  authorized under this chapter or other requirements of county
  297  and municipal governments:
  298         (r) The removal of aquatic plants, the removal of tussocks,
  299  the associated replanting of indigenous aquatic plants, and the
  300  associated removal from lakes of organic detrital material when
  301  such planting or removal is performed and authorized by permit
  302  or exemption granted under s. 369.20 or s. 369.25, provided
  303  that:
  304         1. Organic detrital material that exists on the surface of
  305  natural mineral substrate shall be allowed to be removed to a
  306  depth of 3 feet or to the natural mineral substrate, whichever
  307  is less;
  308         2. All material removed pursuant to this paragraph shall be
  309  deposited in an upland site in a manner that will prevent the
  310  reintroduction of the material into waters in the state except
  311  when spoil material is permitted to be used to create wildlife
  312  islands in freshwater bodies of the state when a governmental
  313  entity is permitted pursuant to s. 369.20 to create such islands
  314  as a part of a restoration or enhancement project;
  315         3. All activities are performed in a manner consistent with
  316  state water quality standards; and
  317         4. No activities under this exemption are conducted in
  318  wetland areas, as defined in by s. 373.019(27) 373.019(25),
  319  which are supported by a natural soil as shown in applicable
  320  United States Department of Agriculture county soil surveys,
  321  except when a governmental entity is permitted pursuant to s.
  322  369.20 to conduct such activities as a part of a restoration or
  323  enhancement project.
  325  The department may not adopt implementing rules for this
  326  paragraph, notwithstanding any other provision of law.
  327         (u) Notwithstanding any provision to the contrary in this
  328  subsection, a permit or other authorization under chapter 253,
  329  chapter 369, chapter 373, or this chapter is not required for an
  330  individual residential property owner for the removal of organic
  331  detrital material from freshwater rivers or lakes that have a
  332  natural sand or rocky substrate and that are not Aquatic
  333  Preserves or for the associated removal and replanting of
  334  aquatic vegetation for the purpose of environmental enhancement,
  335  providing that:
  336         1. No activities under this exemption are conducted in
  337  wetland areas, as defined in by s. 373.019(27) 373.019(25),
  338  which are supported by a natural soil as shown in applicable
  339  United States Department of Agriculture county soil surveys.
  340         2. No filling or peat mining is allowed.
  341         3. No removal of native wetland trees, including, but not
  342  limited to, ash, bay, cypress, gum, maple, or tupelo, occurs.
  343         4. When removing organic detrital material, no portion of
  344  the underlying natural mineral substrate or rocky substrate is
  345  removed.
  346         5. Organic detrital material and plant material removed is
  347  deposited in an upland site in a manner that will not cause
  348  water quality violations.
  349         6. All activities are conducted in such a manner, and with
  350  appropriate turbidity controls, so as to prevent any water
  351  quality violations outside the immediate work area.
  352         7. Replanting with a variety of aquatic plants native to
  353  the state shall occur in a minimum of 25 percent of the
  354  preexisting vegetated areas where organic detrital material is
  355  removed, except for areas where the material is removed to bare
  356  rocky substrate; however, an area may be maintained clear of
  357  vegetation as an access corridor. The access corridor width may
  358  not exceed 50 percent of the property owner’s frontage or 50
  359  feet, whichever is less, and may be a sufficient length
  360  waterward to create a corridor to allow access for a boat or
  361  swimmer to reach open water. Replanting must be at a minimum
  362  density of 2 feet on center and be completed within 90 days
  363  after removal of existing aquatic vegetation, except that under
  364  dewatered conditions replanting must be completed within 90 days
  365  after reflooding. The area to be replanted must extend waterward
  366  from the ordinary high water line to a point where normal water
  367  depth would be 3 feet or the preexisting vegetation line,
  368  whichever is less. Individuals are required to make a reasonable
  369  effort to maintain planting density for a period of 6 months
  370  after replanting is complete, and the plants, including
  371  naturally recruited native aquatic plants, must be allowed to
  372  expand and fill in the revegetation area. Native aquatic plants
  373  to be used for revegetation must be salvaged from the
  374  enhancement project site or obtained from an aquatic plant
  375  nursery regulated by the Department of Agriculture and Consumer
  376  Services. Plants that are not native to the state may not be
  377  used for replanting.
  378         8. No activity occurs any farther than 100 feet waterward
  379  of the ordinary high water line, and all activities must be
  380  designed and conducted in a manner that will not unreasonably
  381  restrict or infringe upon the riparian rights of adjacent upland
  382  riparian owners.
  383         9. The person seeking this exemption notifies the
  384  applicable department district office in writing at least 30
  385  days before commencing work and allows the department to conduct
  386  a preconstruction site inspection. Notice must include an
  387  organic-detrital-material removal and disposal plan and, if
  388  applicable, a vegetation-removal and revegetation plan.
  389         10. The department is provided written certification of
  390  compliance with the terms and conditions of this paragraph
  391  within 30 days after completion of any activity occurring under
  392  this exemption.
  393         Section 8. Subsection (6) of section 556.102, Florida
  394  Statutes, is amended to read:
  395         556.102 Definitions.—As used in this act:
  396         (6) “Excavate” or “excavation” means any manmade cut,
  397  cavity, trench, or depression in the earth’s surface, formed by
  398  removal of earth, intended to change the grade or level of land,
  399  or intended to penetrate or disturb the surface of the earth,
  400  including land beneath the waters of the state, as defined in s.
  401  373.019(22) 373.019(20), and the term includes pipe bursting and
  402  directional drilling or boring from one point to another point
  403  beneath the surface of the earth, or other trenchless
  404  technologies.
  406  ================= T I T L E  A M E N D M E N T ================
  407         And the title is amended as follows:
  408         Delete line 9
  409  and insert:
  410         its expiration; amending s. 373.019, F.S.; defining
  411         the terms “reclaimed water” and “reclaimed water
  412         distribution system”; amending s. 373.250, F.S.;
  413         providing legislative findings relating to the use of
  414         reclaimed water; providing that reclaimed water is an
  415         alternative water supply and eligible for such
  416         funding; authorizing specified contract provisions for
  417         the development of reclaimed water as an alternative
  418         water supply; prohibiting the exclusion of reclaimed
  419         water use from regional water supply planning;
  420         deleting a definition for the term “uncommitted”;
  421         providing for the determination of uncommitted
  422         reclaimed water capacity by certain utilities;
  423         prohibiting water management districts from requiring
  424         permits for the use of reclaimed water; authorizing
  425         permit conditions for certain surface water and
  426         groundwater sources; authorizing water management
  427         districts to require the use of reclaimed water under
  428         certain conditions; prohibiting water management
  429         districts from requiring or restricting services
  430         provided by reuse utilities; providing an exception;
  431         clarifying which permit applicants are required to
  432         submit certain information; requiring the Department
  433         of Environmental Protection and each water management
  434         district to initiate rulemaking to adopt specified
  435         revisions to the water resource implementation rule;
  436         revising applicability; providing for construction of
  437         the act; amending ss. 373.036, 373.421, 403.813, and
  438         556.102, F.S.; conforming cross-references to changes
  439         made by the act; providing an effective date.