Florida Senate - 2019              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 286
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on Agriculture, Environment, and
       General Government)
    1                        A bill to be entitled                      
    2         An act relating to domestic wastewater collection
    3         system assessment and maintenance; creating s.
    4         403.1839, F.S.; providing definitions; providing
    5         legislative findings; establishing the Blue Star
    6         Collection System Assessment and Maintenance Program
    7         and providing its purpose; requiring the Department of
    8         Environmental Protection to adopt rules and review and
    9         approve program applications for certification;
   10         specifying the documentation utilities must submit to
   11         qualify for certification; providing for certification
   12         expiration and renewal; requiring the department to
   13         revoke a utility’s program certification under certain
   14         circumstances; providing for penalties for violations;
   15         requiring the department to publish an annual list of
   16         certified blue star utilities; requiring the
   17         department to allow public and nonprofit utilities to
   18         participate in the Clean Water State Revolving Fund
   19         Program under certain conditions; authorizing the
   20         department to reduce penalties for sanitary sewer
   21         overflows at certified utilities and for investments
   22         in certain assessment and maintenance activities;
   23         amending s. 403.067, F.S.; creating a defensible
   24         expectation of compliance with certain water quality
   25         standards for certified utilities; amending s.
   26         403.087, F.S.; requiring the department to issue
   27         extended operating permits to certified utilities
   28         under certain conditions; amending s. 403.161, F.S.;
   29         authorizing the department to reduce penalties based
   30         on certain system investments for permitted
   31         facilities; amending s. 403.1838, F.S.; authorizing
   32         additional recipients and uses of Small Community
   33         Sewer Construction Assistance Act grants; revising
   34         provisions to authorize the department, rather than
   35         the Environmental Regulation Commission, to implement
   36         rules for such grants; providing an effective date.
   38  Be It Enacted by the Legislature of the State of Florida:
   40         Section 1. Section 403.1839, Florida Statutes, is created
   41  to read:
   42         403.1839Blue Star Collection System Assessment and
   43  Maintenance Program.—
   44         (1)DEFINITIONS.—As used in this section, the term:
   45         (a)“Domestic wastewater” has the same meaning as in s.
   46  367.021.
   47         (b)“Domestic wastewater collection system” has the same
   48  meaning as in s. 403.866.
   49         (c)“Program” means the Blue Star Collection System
   50  Assessment and Maintenance Program.
   51         (d)“Sanitary sewer overflow” means the unauthorized
   52  overflow, spill, release, discharge, or diversion of untreated
   53  or partially treated domestic wastewater.
   54         (2)LEGISLATIVE FINDINGS.—The Legislature finds that:
   55         (a)The implementation of domestic wastewater collection
   56  system assessment and maintenance practices has been shown to
   57  effectively limit sanitary sewer overflows and the unauthorized
   58  discharge of pathogens.
   59         (b)The voluntary implementation of domestic wastewater
   60  collection system assessment and maintenance practices beyond
   61  those required by law has the potential to further limit
   62  sanitary sewer overflows.
   63         (c)The unique geography, community, growth, size, and age
   64  of domestic wastewater collection systems across the state
   65  require diverse responses, using the best professional judgment
   66  of local utility operators, to ensure that programs designed to
   67  limit sanitary sewer overflows are effective.
   68         (3)ESTABLISHMENT AND PURPOSE.—There is established in the
   69  department a Blue Star Collection System Assessment and
   70  Maintenance Program. The purpose of this voluntary incentive
   71  program is to assist public and private utilities in limiting
   72  sanitary sewer overflows and the unauthorized discharge of
   73  pathogens.
   75         (a)The department shall adopt rules to administer the
   76  program, including, at a minimum, the certification standards
   77  for the program as provided in paragraph (b) and the violation
   78  provisions as provided in paragraph (d), and shall review and
   79  approve public and private domestic wastewater utilities that
   80  apply for certification or renewal under the program and that
   81  demonstrate maintenance of program certification pursuant to
   82  paragraph (c) based upon the certification standards.
   83         (b)A utility must provide, at a minimum, reasonable
   84  documentation of the following certification standards in order
   85  to be certified under the program:
   86         1.The implementation of periodic collection system and
   87  pump station structural condition assessments and the
   88  performance of as-needed maintenance and replacements.
   89         2.The rate of reinvestment determined necessary by the
   90  utility to fully implement its collection system and pump
   91  station structural condition assessment and maintenance and
   92  replacement program.
   93         3.The implementation of a program designed to limit the
   94  presence of fats, roots, oils, and grease in the collection
   95  system.
   96         4.If the applicant is a public utility, a local law or
   97  building code requiring the private pump stations and lateral
   98  lines connecting to the public system to be free of:
   99         a.Cracks, holes, missing parts, or similar defects; and
  100         b.Direct stormwater connections that allow the direct
  101  inflow of stormwater into the private system and the public
  102  domestic wastewater collection system.
  103         5.A power outage contingency plan that addresses
  104  mitigation of the impacts of power outages on the utility’s
  105  collection system and pump stations.
  106         6.An infiltration and inflow reduction plan to minimize
  107  infiltration and inflow throughout the utility’s collection
  108  system.
  109         (c)1.Program certifications shall expire after 5 years. A
  110  utility shall document its implementation of the program on an
  111  annual basis with the department and must demonstrate that the
  112  utility meets all program standards or the department shall
  113  revoke the utility’s program certification.
  114         2.The approval of an application for renewal certification
  115  must be based on the utility demonstrating maintenance of
  116  program standards. A utility applying for renewal certification
  117  must demonstrate maintenance of program standards and progress
  118  in implementing the program or the department may not approve
  119  the application.
  120         3.The department may determine that a utility is not
  121  meeting or maintaining program standards and may revoke the
  122  utility’s program certification if the utility experiences
  123  sanitary sewer overflows due to factors under the control of the
  124  utility or if the utility violates any permit condition or any
  125  applicable department rule or law.
  126         (d)A utility that submits information or documentation to
  127  the department pursuant to this section is subject to s.
  128  403.161(1)(c). The department shall revoke the program
  129  certification of a utility that knowingly submits false or
  130  inaccurate information or documentation in an application for
  131  certification under the program.
  132         (5)PUBLICATION.—The department shall annually publish on
  133  its website a list of certified blue star utilities beginning on
  134  January 1, 2021.
  135         (6)FEDERAL PROGRAM PARTICIPATION.—The department shall
  136  allow public and nonprofit utilities to participate in the Clean
  137  Water State Revolving Fund Program for any purpose of the
  138  program that is consistent with federal requirements for
  139  participating in the Clean Water State Revolving Fund Program.
  140         (7)REDUCED PENALTIES.—In the calculation of penalties
  141  pursuant to s. 403.161 for a sanitary sewer overflow, the
  142  department may reduce the penalty based on a utility’s status as
  143  a certified blue star utility in accordance with this section.
  144  The department may also reduce a penalty based on a certified
  145  blue star utility’s investment in assessment and maintenance
  146  activities to identify and address conditions that may cause
  147  sanitary sewer overflows or interruption of service to customers
  148  due to a physical condition or defect in the system.
  149         Section 2. Paragraph (c) of subsection (7) of section
  150  403.067, Florida Statutes, is amended to read:
  151         403.067 Establishment and implementation of total maximum
  152  daily loads.—
  155         (c) Best management practices.—
  156         1. The department, in cooperation with the water management
  157  districts and other interested parties, as appropriate, may
  158  develop suitable interim measures, best management practices, or
  159  other measures necessary to achieve the level of pollution
  160  reduction established by the department for nonagricultural
  161  nonpoint pollutant sources in allocations developed pursuant to
  162  subsection (6) and this subsection. These practices and measures
  163  may be adopted by rule by the department and the water
  164  management districts and, where adopted by rule, shall be
  165  implemented by those parties responsible for nonagricultural
  166  nonpoint source pollution.
  167         2. The Department of Agriculture and Consumer Services may
  168  develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
  169  suitable interim measures, best management practices, or other
  170  measures necessary to achieve the level of pollution reduction
  171  established by the department for agricultural pollutant sources
  172  in allocations developed pursuant to subsection (6) and this
  173  subsection or for programs implemented pursuant to paragraph
  174  (12)(b). These practices and measures may be implemented by
  175  those parties responsible for agricultural pollutant sources and
  176  the department, the water management districts, and the
  177  Department of Agriculture and Consumer Services shall assist
  178  with implementation. In the process of developing and adopting
  179  rules for interim measures, best management practices, or other
  180  measures, the Department of Agriculture and Consumer Services
  181  shall consult with the department, the Department of Health, the
  182  water management districts, representatives from affected
  183  farming groups, and environmental group representatives. Such
  184  rules must also incorporate provisions for a notice of intent to
  185  implement the practices and a system to assure the
  186  implementation of the practices, including site inspection and
  187  recordkeeping requirements.
  188         3. When where interim measures, best management practices,
  189  or other measures are adopted by rule, the effectiveness of such
  190  practices in achieving the levels of pollution reduction
  191  established in allocations developed by the department pursuant
  192  to subsection (6) and this subsection or in programs implemented
  193  pursuant to paragraph (12)(b) must be verified at representative
  194  sites by the department. The department shall use best
  195  professional judgment in making the initial verification that
  196  the best management practices are reasonably expected to be
  197  effective and, where applicable, must notify the appropriate
  198  water management district or the Department of Agriculture and
  199  Consumer Services of its initial verification before the
  200  adoption of a rule proposed pursuant to this paragraph.
  201  Implementation, in accordance with rules adopted under this
  202  paragraph, of practices that have been initially verified to be
  203  effective, or verified to be effective by monitoring at
  204  representative sites, by the department, shall provide a
  205  presumption of compliance with state water quality standards and
  206  release from the provisions of s. 376.307(5) for those
  207  pollutants addressed by the practices, and the department is not
  208  authorized to institute proceedings against the owner of the
  209  source of pollution to recover costs or damages associated with
  210  the contamination of surface water or groundwater caused by
  211  those pollutants. Research projects funded by the department, a
  212  water management district, or the Department of Agriculture and
  213  Consumer Services to develop or demonstrate interim measures or
  214  best management practices shall be granted a presumption of
  215  compliance with state water quality standards and a release from
  216  the provisions of s. 376.307(5). The presumption of compliance
  217  and release is limited to the research site and only for those
  218  pollutants addressed by the interim measures or best management
  219  practices. Eligibility for the presumption of compliance and
  220  release is limited to research projects on sites where the owner
  221  or operator of the research site and the department, a water
  222  management district, or the Department of Agriculture and
  223  Consumer Services have entered into a contract or other
  224  agreement that, at a minimum, specifies the research objectives,
  225  the cost-share responsibilities of the parties, and a schedule
  226  that details the beginning and ending dates of the project.
  227         4. When where water quality problems are demonstrated,
  228  despite the appropriate implementation, operation, and
  229  maintenance of best management practices and other measures
  230  required by rules adopted under this paragraph, the department,
  231  a water management district, or the Department of Agriculture
  232  and Consumer Services, in consultation with the department,
  233  shall institute a reevaluation of the best management practice
  234  or other measure. Should the reevaluation determine that the
  235  best management practice or other measure requires modification,
  236  the department, a water management district, or the Department
  237  of Agriculture and Consumer Services, as appropriate, shall
  238  revise the rule to require implementation of the modified
  239  practice within a reasonable time period as specified in the
  240  rule.
  241         5. Agricultural records relating to processes or methods of
  242  production, costs of production, profits, or other financial
  243  information held by the Department of Agriculture and Consumer
  244  Services pursuant to subparagraphs 3. and 4. or pursuant to any
  245  rule adopted pursuant to subparagraph 2. are confidential and
  246  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  247  Constitution. Upon request, records made confidential and exempt
  248  pursuant to this subparagraph shall be released to the
  249  department or any water management district provided that the
  250  confidentiality specified by this subparagraph for such records
  251  is maintained.
  252         6. The provisions of Subparagraphs 1. and 2. do not
  253  preclude the department or water management district from
  254  requiring compliance with water quality standards or with
  255  current best management practice requirements set forth in any
  256  applicable regulatory program authorized by law for the purpose
  257  of protecting water quality. Additionally, subparagraphs 1. and
  258  2. are applicable only to the extent that they do not conflict
  259  with any rules adopted by the department that are necessary to
  260  maintain a federally delegated or approved program.
  261         7.For the sole purpose of establishing a total maximum
  262  daily load for pathogens in a surface water, the department must
  263  provide a domestic wastewater utility with a defensible
  264  expectation of compliance with state water quality standards for
  265  fecal indicator bacteria when the utility implements and
  266  maintains a program as a certified blue star utility in
  267  accordance with s. 403.1839 and demonstrates a history of
  268  compliance with wastewater disinfection requirements
  269  incorporated in the utility’s operating permit for any discharge
  270  into the impaired surface water.
  271         Section 3. Subsection (11) is added to section 403.087,
  272  Florida Statutes, to read:
  273         403.087 Permits; general issuance; denial; revocation;
  274  prohibition; penalty.—
  275         (11)Subject to the permit duration limits for a utility
  276  permitted pursuant to s. 403.0885, a blue star utility certified
  277  pursuant to s. 403.1839 shall be issued a 10-year permit for the
  278  same fee and under the same conditions as a 5-year permit upon
  279  approval of its application for permit renewal by the department
  280  if the certified blue star utility demonstrates that it:
  281         (a)Is in compliance with any consent order or an
  282  accompanying administrative order to its permit;
  283         (b)Does not have any pending enforcement action against it
  284  by the United States Environmental Protection Agency, the
  285  department, or a local program; and
  286         (c)If applicable, has submitted annual program
  287  implementation reports demonstrating progress in the
  288  implementation of the program.
  289         Section 4. Present subsection (6) of section 403.161,
  290  Florida Statutes, is redesignated as subsection (7), and a new
  291  subsection (6) is added to that section, to read:
  292         403.161 Prohibitions, violation, penalty, intent.—
  293         (6)Notwithstanding any other law, the department may
  294  reduce the amount of a penalty based on the person’s investment
  295  in the assessment, maintenance, rehabilitation, or expansion of
  296  the permitted facility.
  297         Section 5. Subsection (2) and paragraphs (a) and (b) of
  298  subsection (3) of section 403.1838, Florida Statutes, are
  299  amended to read:
  300         403.1838 Small Community Sewer Construction Assistance
  301  Act.—
  302         (2) The department shall use funds specifically
  303  appropriated to award grants under this section to assist
  304  financially disadvantaged small communities with their needs for
  305  adequate sewer facilities. The department may use funds
  306  specifically appropriated to award grants under this section to
  307  assist nonprofit utilities providing wastewater services to
  308  financially disadvantaged small communities. For purposes of
  309  this section, the term “financially disadvantaged small
  310  community” means a county, municipality, or special district
  311  that has a population of 10,000 or fewer, according to the
  312  latest decennial census, and a per capita annual income less
  313  than the state per capita annual income as determined by the
  314  United States Department of Commerce. For purposes of this
  315  subsection, the term “special district” has the same meaning as
  316  provided in s. 189.012 and includes only those special districts
  317  whose public purpose includes water and sewer services, utility
  318  systems and services, or wastewater systems and services. The
  319  department may waive the population requirement for an
  320  independent special district that serves fewer than 10,000
  321  wastewater customers, is located within a watershed with an
  322  adopted total maximum daily load or basin management action plan
  323  for pollutants associated with domestic wastewater pursuant to
  324  s. 403.067, and is wholly located within a rural area of
  325  opportunity as defined in s. 288.0656.
  326         (3)(a) In accordance with rules adopted by the department
  327  Environmental Regulation Commission under this section, the
  328  department may provide grants, from funds specifically
  329  appropriated for this purpose, to financially disadvantaged
  330  small communities and to nonprofit utilities serving financially
  331  disadvantaged small communities for up to 100 percent of the
  332  costs of planning, assessing, designing, constructing,
  333  upgrading, or replacing wastewater collection, transmission,
  334  treatment, disposal, and reuse facilities, including necessary
  335  legal and administrative expenses. Grants issued pursuant to
  336  this section may also be used for planning and implementing
  337  domestic wastewater collection system assessment and maintenance
  338  programs to identify conditions that may cause sanitary sewer
  339  overflows or interruption of service to customers due to a
  340  physical condition or defect in the system.
  341         (b) The rules of the department Environmental Regulation
  342  Commission must:
  343         1. Require that projects to plan, assess, design,
  344  construct, upgrade, or replace wastewater collection,
  345  transmission, treatment, disposal, and reuse facilities be cost
  346  effective, environmentally sound, permittable, and
  347  implementable.
  348         2. Require appropriate user charges, connection fees, and
  349  other charges sufficient to ensure the long-term operation,
  350  maintenance, and replacement of the facilities constructed under
  351  each grant.
  352         3. Require grant applications to be submitted on
  353  appropriate forms with appropriate supporting documentation, and
  354  require records to be maintained.
  355         4. Establish a system to determine eligibility of grant
  356  applications.
  357         5. Establish a system to determine the relative priority of
  358  grant applications. The system must consider public health
  359  protection and water pollution abatement.
  360         6. Establish requirements for competitive procurement of
  361  engineering and construction services, materials, and equipment.
  362         7. Provide for termination of grants when program
  363  requirements are not met.
  364         Section 6. This act shall take effect July 1, 2019.