Florida Senate - 2019                              CS for SB 286
       By the Committee on Environment and Natural Resources; and
       Senators Albritton and Perry
       592-02706A-19                                          2019286c1
    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         publish an annual list of certified blue star
   14         utilities; requiring the department to allow public
   15         and nonprofit utilities to participate in the Clean
   16         Water State Revolving Fund Program under certain
   17         conditions; authorizing the department to reduce
   18         penalties for sanitary sewer overflows at certified
   19         utilities and for investments in certain assessment
   20         and maintenance activities; amending s. 403.067, F.S.;
   21         creating a defensible expectation of compliance with
   22         certain water quality standards for certified
   23         utilities; amending s. 403.087, F.S.; requiring the
   24         department to issue extended operating permits to
   25         certified utilities under certain conditions; amending
   26         s. 403.161, F.S.; authorizing the department to reduce
   27         penalties based on certain system investments for
   28         permitted facilities; amending s. 403.1838, F.S.;
   29         authorizing additional recipients and uses of Small
   30         Community Sewer Construction Assistance Act grants;
   31         revising provisions to authorize the department,
   32         rather than the Environmental Regulation Commission,
   33         to implement rules for such grants; providing an
   34         effective date.
   36  Be It Enacted by the Legislature of the State of Florida:
   38         Section 1. Section 403.1839, Florida Statutes, is created
   39  to read:
   40         403.1839Blue Star Collection System Assessment and
   41  Maintenance Program.—
   42         (1)DEFINITIONS.—As used in this section, the term:
   43         (a)“Domestic wastewater” has the same meaning as in s.
   44  367.021.
   45         (b)“Domestic wastewater collection system” has the same
   46  meaning as in s. 403.866.
   47         (c)“Program” means the Blue Star Collection System
   48  Assessment and Maintenance Program.
   49         (d)“Sanitary sewer overflow” means the unauthorized
   50  overflow, spill, release, discharge, or diversion of untreated
   51  or partially treated domestic wastewater.
   52         (2)LEGISLATIVE FINDINGS.—The Legislature finds that:
   53         (a)The implementation of domestic wastewater collection
   54  system assessment and maintenance practices has been shown to
   55  effectively limit sanitary sewer overflows and the unauthorized
   56  discharge of pathogens.
   57         (b)The voluntary implementation of domestic wastewater
   58  collection system assessment and maintenance practices beyond
   59  those required by law has the potential to further limit
   60  sanitary sewer overflows.
   61         (c)The unique geography, community, growth, size, and age
   62  of domestic wastewater collection systems across the state
   63  require diverse responses, using the best professional judgment
   64  of local utility operators, to ensure that programs designed to
   65  limit sanitary sewer overflows are effective.
   66         (3)ESTABLISHMENT AND PURPOSE.—There is established in the
   67  department a Blue Star Collection System Assessment and
   68  Maintenance Program. The purpose of this voluntary incentive
   69  program is to assist public and private utilities in limiting
   70  sanitary sewer overflows and the unauthorized discharge of
   71  pathogens.
   72         (4)APPROVAL AND STANDARDS.—
   73         (a)The department shall adopt rules to administer the
   74  program, including the certification standards for the program
   75  in paragraph (b), and shall review and approve public and
   76  private domestic wastewater utilities that apply for
   77  certification or renewal under the program and that demonstrate
   78  maintenance of program certification pursuant to paragraph (c)
   79  based upon the certification standards.
   80         (b)A utility must provide reasonable documentation of the
   81  following certification standards in order to be certified under
   82  the program:
   83         1.The implementation of periodic collection system and
   84  pump station structural condition assessments and the
   85  performance of as-needed maintenance and replacements.
   86         2.The rate of reinvestment as determined necessary by the
   87  utility to fully implement its collection system and pump
   88  station structural condition assessment and maintenance and
   89  replacement program.
   90         3.The implementation of a program designed to limit the
   91  presence of fats, roots, oils, and grease in the collection
   92  system.
   93         4.If the applicant is a public utility, a local law or
   94  building code requiring the private pump stations and lateral
   95  lines connecting to the public system to be free of:
   96         a.Cracks, holes, missing parts, or similar defects; and
   97         b.Direct stormwater connections that allow the direct
   98  inflow of stormwater into the private system and the public
   99  domestic wastewater collection system.
  100         5.A power outage contingency plan that addresses
  101  mitigation of the impacts of power outages on the utility’s
  102  collection system and pump stations.
  103         (c)Program certifications shall expire after 5 years. A
  104  utility shall document its implementation of the program on an
  105  annual basis with the department and must demonstrate that the
  106  utility meets all program standards in order to maintain its
  107  program certification. The approval of an application for
  108  renewal certification must be based on the utility demonstrating
  109  maintenance of program standards. A utility applying for renewal
  110  certification must demonstrate maintenance of program standards
  111  and progress in implementing the program.
  112         (5)PUBLICATION.—The department shall annually publish on
  113  its website a list of certified blue star utilities beginning on
  114  January 1, 2021.
  115         (6)FEDERAL PROGRAM PARTICIPATION.—The department shall
  116  allow public and nonprofit utilities to participate in the Clean
  117  Water State Revolving Fund Program for any purpose of the
  118  program that is consistent with federal requirements for
  119  participating in the Clean Water State Revolving Fund Program.
  120         (7)REDUCED PENALTIES.—In the calculation of penalties
  121  pursuant to s. 403.161 for a sanitary sewer overflow, the
  122  department may reduce the penalty based on a utility’s status as
  123  a certified blue star utility in accordance with this section.
  124  The department may also reduce a penalty based on a certified
  125  blue star utility’s investment in assessment and maintenance
  126  activities to identify and address conditions that may cause
  127  sanitary sewer overflows or interruption of service to customers
  128  due to a physical condition or defect in the system.
  129         Section 2. Paragraph (c) of subsection (7) of section
  130  403.067, Florida Statutes, is amended to read:
  131         403.067 Establishment and implementation of total maximum
  132  daily loads.—
  135         (c) Best management practices.—
  136         1. The department, in cooperation with the water management
  137  districts and other interested parties, as appropriate, may
  138  develop suitable interim measures, best management practices, or
  139  other measures necessary to achieve the level of pollution
  140  reduction established by the department for nonagricultural
  141  nonpoint pollutant sources in allocations developed pursuant to
  142  subsection (6) and this subsection. These practices and measures
  143  may be adopted by rule by the department and the water
  144  management districts and, where adopted by rule, shall be
  145  implemented by those parties responsible for nonagricultural
  146  nonpoint source pollution.
  147         2. The Department of Agriculture and Consumer Services may
  148  develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
  149  suitable interim measures, best management practices, or other
  150  measures necessary to achieve the level of pollution reduction
  151  established by the department for agricultural pollutant sources
  152  in allocations developed pursuant to subsection (6) and this
  153  subsection or for programs implemented pursuant to paragraph
  154  (12)(b). These practices and measures may be implemented by
  155  those parties responsible for agricultural pollutant sources and
  156  the department, the water management districts, and the
  157  Department of Agriculture and Consumer Services shall assist
  158  with implementation. In the process of developing and adopting
  159  rules for interim measures, best management practices, or other
  160  measures, the Department of Agriculture and Consumer Services
  161  shall consult with the department, the Department of Health, the
  162  water management districts, representatives from affected
  163  farming groups, and environmental group representatives. Such
  164  rules must also incorporate provisions for a notice of intent to
  165  implement the practices and a system to assure the
  166  implementation of the practices, including site inspection and
  167  recordkeeping requirements.
  168         3. When where interim measures, best management practices,
  169  or other measures are adopted by rule, the effectiveness of such
  170  practices in achieving the levels of pollution reduction
  171  established in allocations developed by the department pursuant
  172  to subsection (6) and this subsection or in programs implemented
  173  pursuant to paragraph (12)(b) must be verified at representative
  174  sites by the department. The department shall use best
  175  professional judgment in making the initial verification that
  176  the best management practices are reasonably expected to be
  177  effective and, where applicable, must notify the appropriate
  178  water management district or the Department of Agriculture and
  179  Consumer Services of its initial verification before the
  180  adoption of a rule proposed pursuant to this paragraph.
  181  Implementation, in accordance with rules adopted under this
  182  paragraph, of practices that have been initially verified to be
  183  effective, or verified to be effective by monitoring at
  184  representative sites, by the department, shall provide a
  185  presumption of compliance with state water quality standards and
  186  release from the provisions of s. 376.307(5) for those
  187  pollutants addressed by the practices, and the department is not
  188  authorized to institute proceedings against the owner of the
  189  source of pollution to recover costs or damages associated with
  190  the contamination of surface water or groundwater caused by
  191  those pollutants. Research projects funded by the department, a
  192  water management district, or the Department of Agriculture and
  193  Consumer Services to develop or demonstrate interim measures or
  194  best management practices shall be granted a presumption of
  195  compliance with state water quality standards and a release from
  196  the provisions of s. 376.307(5). The presumption of compliance
  197  and release is limited to the research site and only for those
  198  pollutants addressed by the interim measures or best management
  199  practices. Eligibility for the presumption of compliance and
  200  release is limited to research projects on sites where the owner
  201  or operator of the research site and the department, a water
  202  management district, or the Department of Agriculture and
  203  Consumer Services have entered into a contract or other
  204  agreement that, at a minimum, specifies the research objectives,
  205  the cost-share responsibilities of the parties, and a schedule
  206  that details the beginning and ending dates of the project.
  207         4. When where water quality problems are demonstrated,
  208  despite the appropriate implementation, operation, and
  209  maintenance of best management practices and other measures
  210  required by rules adopted under this paragraph, the department,
  211  a water management district, or the Department of Agriculture
  212  and Consumer Services, in consultation with the department,
  213  shall institute a reevaluation of the best management practice
  214  or other measure. Should the reevaluation determine that the
  215  best management practice or other measure requires modification,
  216  the department, a water management district, or the Department
  217  of Agriculture and Consumer Services, as appropriate, shall
  218  revise the rule to require implementation of the modified
  219  practice within a reasonable time period as specified in the
  220  rule.
  221         5. Agricultural records relating to processes or methods of
  222  production, costs of production, profits, or other financial
  223  information held by the Department of Agriculture and Consumer
  224  Services pursuant to subparagraphs 3. and 4. or pursuant to any
  225  rule adopted pursuant to subparagraph 2. are confidential and
  226  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  227  Constitution. Upon request, records made confidential and exempt
  228  pursuant to this subparagraph shall be released to the
  229  department or any water management district provided that the
  230  confidentiality specified by this subparagraph for such records
  231  is maintained.
  232         6. The provisions of Subparagraphs 1. and 2. do not
  233  preclude the department or water management district from
  234  requiring compliance with water quality standards or with
  235  current best management practice requirements set forth in any
  236  applicable regulatory program authorized by law for the purpose
  237  of protecting water quality. Additionally, subparagraphs 1. and
  238  2. are applicable only to the extent that they do not conflict
  239  with any rules adopted by the department that are necessary to
  240  maintain a federally delegated or approved program.
  241         7.For the sole purpose of establishing a total maximum
  242  daily load for pathogens in a surface water, the department must
  243  provide a domestic wastewater utility with a defensible
  244  expectation of compliance with state water quality standards for
  245  fecal indicator bacteria when the utility implements and
  246  maintains a program as a certified blue star utility in
  247  accordance with s. 403.1839 and demonstrates a history of
  248  compliance with wastewater disinfection requirements
  249  incorporated in the utility’s operating permit for any discharge
  250  into the impaired surface water.
  251         Section 3. Subsection (11) is added to section 403.087,
  252  Florida Statutes, to read:
  253         403.087 Permits; general issuance; denial; revocation;
  254  prohibition; penalty.—
  255         (11)Subject to the permit duration limits for a utility
  256  permitted pursuant to s. 403.0885, a blue star utility certified
  257  pursuant to s. 403.1839 shall be issued a 10-year permit for the
  258  same fee and under the same conditions as a 5-year permit upon
  259  approval of its application for permit renewal by the department
  260  if the certified blue star utility demonstrates that it:
  261         (a)Is in compliance with any consent order or an
  262  accompanying administrative order to its permit;
  263         (b)Does not have any pending enforcement action against it
  264  by the United States Environmental Protection Agency, the
  265  department, or a local program; and
  266         (c)If applicable, has submitted annual program
  267  implementation reports demonstrating progress in the
  268  implementation of the program.
  269         Section 4. Present subsection (6) of section 403.161,
  270  Florida Statutes, is redesignated as subsection (7), and a new
  271  subsection (6) is added to that section, to read:
  272         403.161 Prohibitions, violation, penalty, intent.—
  273         (6)Notwithstanding any other law, the department may
  274  reduce the amount of a penalty based on the person’s investment
  275  in the assessment, maintenance, rehabilitation, or expansion of
  276  the permitted facility.
  277         Section 5. Subsection (2) and paragraphs (a) and (b) of
  278  subsection (3) of section 403.1838, Florida Statutes, are
  279  amended to read:
  280         403.1838 Small Community Sewer Construction Assistance
  281  Act.—
  282         (2) The department shall use funds specifically
  283  appropriated to award grants under this section to assist
  284  financially disadvantaged small communities with their needs for
  285  adequate sewer facilities. The department may use funds
  286  specifically appropriated to award grants under this section to
  287  assist nonprofit utilities providing wastewater services to
  288  financially disadvantaged small communities. For purposes of
  289  this section, the term “financially disadvantaged small
  290  community” means a county, municipality, or special district
  291  that has a population of 10,000 or fewer, according to the
  292  latest decennial census, and a per capita annual income less
  293  than the state per capita annual income as determined by the
  294  United States Department of Commerce. For purposes of this
  295  subsection, the term “special district” has the same meaning as
  296  provided in s. 189.012 and includes only those special districts
  297  whose public purpose includes water and sewer services, utility
  298  systems and services, or wastewater systems and services. The
  299  department may waive the population requirement for an
  300  independent special district that serves fewer than 10,000
  301  wastewater customers, is located within a watershed with an
  302  adopted total maximum daily load or basin management action plan
  303  for pollutants associated with domestic wastewater pursuant to
  304  s. 403.067, and is wholly located within a rural area of
  305  opportunity as defined in s. 288.0656.
  306         (3)(a) In accordance with rules adopted by the department
  307  Environmental Regulation Commission under this section, the
  308  department may provide grants, from funds specifically
  309  appropriated for this purpose, to financially disadvantaged
  310  small communities and to nonprofit utilities serving financially
  311  disadvantaged small communities for up to 100 percent of the
  312  costs of planning, assessing, designing, constructing,
  313  upgrading, or replacing wastewater collection, transmission,
  314  treatment, disposal, and reuse facilities, including necessary
  315  legal and administrative expenses. Grants issued pursuant to
  316  this section may also be used for planning and implementing
  317  domestic wastewater collection system assessment and maintenance
  318  programs to identify conditions that may cause sanitary sewer
  319  overflows or interruption of service to customers due to a
  320  physical condition or defect in the system.
  321         (b) The rules of the department Environmental Regulation
  322  Commission must:
  323         1. Require that projects to plan, assess, design,
  324  construct, upgrade, or replace wastewater collection,
  325  transmission, treatment, disposal, and reuse facilities be cost
  326  effective, environmentally sound, permittable, and
  327  implementable.
  328         2. Require appropriate user charges, connection fees, and
  329  other charges sufficient to ensure the long-term operation,
  330  maintenance, and replacement of the facilities constructed under
  331  each grant.
  332         3. Require grant applications to be submitted on
  333  appropriate forms with appropriate supporting documentation, and
  334  require records to be maintained.
  335         4. Establish a system to determine eligibility of grant
  336  applications.
  337         5. Establish a system to determine the relative priority of
  338  grant applications. The system must consider public health
  339  protection and water pollution abatement.
  340         6. Establish requirements for competitive procurement of
  341  engineering and construction services, materials, and equipment.
  342         7. Provide for termination of grants when program
  343  requirements are not met.
  344         Section 6. This act shall take effect July 1, 2019.