Florida Senate - 2022                             CS for SB 1000
       
       
        
       By the Committee on Environment and Natural Resources; and
       Senator Albritton
       
       
       
       
       592-01918-22                                          20221000c1
    1                        A bill to be entitled                      
    2         An act relating to nutrient application rates;
    3         amending s. 576.011, F.S.; defining the terms
    4         “certified professional” and “rate tailoring”;
    5         amending s. 576.045, F.S.; providing legislative
    6         findings and intent; authorizing the use of rate
    7         tailoring in specified circumstances; authorizing
    8         producers to use written recommendations from
    9         certified professionals to tailor their recommended
   10         nutrient application rates under certain
   11         circumstances; requiring producers to keep records
   12         regarding the determination that the published
   13         nutrient application rates are not appropriate and any
   14         recommendations for rate tailoring for a specified
   15         period of time; requiring producers using rate
   16         tailoring to enroll in and implement certain
   17         applicable best management practices; requiring
   18         revisions to recommended application rates by certain
   19         state universities and Florida College System
   20         institutions to authorize rate tailoring; providing a
   21         presumption of compliance with certain requirements
   22         for producers using rate tailoring; extending the
   23         expiration of a certain provision; amending s.
   24         403.067, F.S.; conforming a provision to changes made
   25         by the act; providing an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Present subsections (5) through (31) and (32)
   30  through (42) of section 576.011, Florida Statutes, are
   31  redesignated as subsections (6) through (32) and (34) through
   32  (44), respectively, and new subsections (5) and (33) are added
   33  to that section, to read:
   34         576.011 Definitions.—When used in this chapter, the term:
   35         (5) “Certified professional” means an individual who holds
   36  a certified crop adviser designation issued by the American
   37  Society of Agronomy, who has passed the society’s Southeast
   38  Region Certified Crop Adviser Exam, who holds a 4R Nutrient
   39  Management Specialty certification, and whose credentials have
   40  been verified by the society’s Florida Certified Crop Adviser
   41  Board.
   42         (33)“Rate tailoring” means the application of nutrients in
   43  accordance with s. 576.045(4).
   44         Section 2. Section 576.045, Florida Statutes, is amended to
   45  read:
   46         576.045 Nitrogen and phosphorus; findings and intent; fees;
   47  purpose; best management practices; waiver of liability;
   48  compliance; rules; exclusions; expiration.—
   49         (1) FINDINGS AND INTENT.—
   50         (a) The Legislature finds that:
   51         1. Nitrogen and phosphorus residues have been found in
   52  groundwater, surface water, and drinking water in various areas
   53  throughout this the state at levels in excess of established
   54  water quality standards. The Legislature further finds that some
   55  fertilization-management practices could be a source of such
   56  contamination.
   57         2.Nutrient application rate recommendations are general
   58  guidelines, not site-specific absolute rates, and that such
   59  rates may not take into account the latest methods of producing
   60  agricultural commodities or changes to nutrient application
   61  practices which are appropriate due to disease, new crop
   62  varieties, changes in United States Department of Agriculture
   63  Agricultural Marketing Service standards, growing techniques, or
   64  market conditions.
   65         3.To gain efficiency and be able to compete successfully
   66  with foreign producers that benefit from lower costs of
   67  production and favorable trade conditions, many producers in
   68  this state grow more product per acre, resulting in higher
   69  production at lower overall costs. This high-efficiency crop
   70  production requires nutrient application to be based on the
   71  intensity of production on a per-acre basis, rather than the
   72  lower per-acre production on which past research based its
   73  recommended nutrient application rate.
   74         4.Florida citrus faces challenges that include citrus
   75  greening, citrus canker, freezes, windstorms, and other events
   76  that result in the fruit not being harvested. In order to
   77  continue production of this state’s iconic crop, nutrient
   78  application rates must reflect fruit grown on the tree after the
   79  bloom during the growing season and not fruit ultimately
   80  harvested for market delivery.
   81         (b) It is the intent of the Legislature to:
   82         1. Improve fertilization-management practices as soon as
   83  practicable in a way that protects this the state’s water
   84  resources and preserves a viable agricultural industry. This
   85  goal is to be accomplished through research concerning best
   86  management practices and education and incentives for the
   87  agricultural industry and other major users of fertilizer.
   88         2.Accommodate continued agricultural production without
   89  interruption as research to formally revise nutrient application
   90  rates is completed.
   91         3.Authorize the use of rate tailoring in recommended
   92  nutrient application rates when rate tailoring is supported by
   93  written recommendations from a certified professional and
   94  documented using production and field data that is retained for
   95  review during the best management practices implementation
   96  verification process.
   97         (2) FEES.—
   98         (a) In addition to the fees imposed under ss. 576.021 and
   99  576.041, the following supplemental fees shall be collected and
  100  paid by licensees for the sole purpose of implementing this
  101  section:
  102         1. One hundred dollars for each license to distribute
  103  fertilizer.
  104         2. One hundred dollars for each specialty fertilizer
  105  registration.
  106         3. Fifty cents per ton for all fertilizer that contains
  107  nitrogen or phosphorus and that is sold in this state.
  108         (b) All fees paid to the department under this section are
  109  due and payable at the same time and in the same manner as the
  110  fees specified in ss. 576.021 and 576.041 and are subject to all
  111  provisions contained in those sections.
  112         (c) All fees paid under this section must be deposited into
  113  the General Inspection Trust Fund and are exempt from the
  114  provisions of s. 215.20. These funds are to be appropriated
  115  annually to the department and allocated according to a
  116  memorandum of understanding between the department and the
  117  Department of Environmental Protection. The allocation of
  118  indirect costs to these funds by any state agency is
  119  specifically prohibited.
  120         (3) USE OF FUNDS PURPOSE.—The funds collected pursuant to
  121  subsection (2) must be used by the department for:
  122         (a) Research, development, demonstration, and
  123  implementation of suitable interim measures, best management
  124  practices, or other measures used to achieve state water quality
  125  standards for nitrogen and phosphorus criteria. Implementation
  126  of interim measures, best management practices, and other
  127  measures may include cost-sharing grants, technical assistance,
  128  implementation tracking, and conservation leases or other
  129  agreements for water quality improvement.
  130         (b) Approving, adopting, publishing, and distributing
  131  interim measures, best management practices, or other measures.
  132  In the process of developing, approving, and adopting interim
  133  measures, best management practices, or other measures, the
  134  department shall consult with the Department of Environmental
  135  Protection, the Department of Health, the water management
  136  districts, environmental groups, the fertilizer industry, and
  137  representatives from the affected farming groups.
  138         (c) Reimbursing the Department of Environmental Protection
  139  for costs incurred which are associated with:
  140         1. Monitoring and verifying the effectiveness of the
  141  interim measures, best management practices, or other measures
  142  approved and adopted under subsection (7) (6) at representative
  143  sites. The Department of Environmental Protection shall use its
  144  best professional judgment in making the initial determination
  145  of the effectiveness of the interim measures, best management
  146  practices, or other measures.
  147         2. Sampling, analysis, and restoration of potable water
  148  supplies, pursuant to s. 376.307, found to contain levels of
  149  nitrate in excess of state water quality standards, which excess
  150  is determined to be the result of the application of fertilizers
  151  or other soil-applied nutritional materials containing nitrogen.
  152  
  153  This subsection must be implemented through a memorandum of
  154  understanding between the department and the Department of
  155  Environmental Protection.
  156         (4) RATE TAILORING.—The use of rate tailoring to
  157  recommended nutrient application rates is authorized where rate
  158  tailoring is supported by a certified professional.
  159         (a) When recommended nutrient application rates published
  160  by the Institute of Food and Agricultural Sciences at the
  161  University of Florida or other state universities and Florida
  162  College System institutions that have agricultural research
  163  programs are not appropriate for a specific producer due to soil
  164  conditions, disease, crop varieties, subsequent crop rotations,
  165  planting density, market requirements, or site-specific
  166  conditions, written recommendations from a certified
  167  professional may be used to tailor the recommended nutrient
  168  application rates for that producer. The determination that the
  169  published nutrient application rates are not appropriate and the
  170  recommendation for the tailoring of nutrient application rates
  171  must be documented with one or more of the following records, as
  172  appropriate: soil tests, plant tissue tests, pathology reports,
  173  yield response curves, growth records, or site-specific
  174  conditions, together with records specifying the application
  175  rate, the types or forms of nutrients used, the nutrient sources
  176  used, and the placement and timing of the nutrient sources. A
  177  producer must retain the records for 5 years to support the use
  178  of rate tailoring.
  179         (b) Producers using rate tailoring must be enrolled in and
  180  implementing all other best management practices adopted by the
  181  department and identified in the enrolled notice of intent
  182  required under subsections (5) and (6) or s. 403.067(7)(c).
  183         (c) As recommended nutrient application rates for crops are
  184  revised by the Institute of Food and Agricultural Sciences at
  185  the University of Florida or other state universities and
  186  Florida College System institutions that have agricultural
  187  research programs, such recommendations must provide an
  188  application range or authorize rate tailoring to crop and field
  189  conditions.
  190         (d) Notwithstanding any other law, producers implementing
  191  rate tailoring in compliance with this section are provided a
  192  presumption of compliance with state water quality standards,
  193  may rely on the waiver of liability in subsection (5), and be
  194  deemed to be in compliance with s. 403.067(7)(c) and subsections
  195  (5) and (6).
  196         (5) WAIVER OF LIABILITY.—Notwithstanding any other
  197  provision of law, the Department of Environmental Protection may
  198  not is not authorized to institute proceedings against any
  199  person or the Federal Government under the provisions of s.
  200  376.307(5) to recover any costs or damages associated with
  201  nitrogen or phosphorus contamination of groundwater or surface
  202  water, or the evaluation, assessment, or remediation of such
  203  contamination of groundwater or surface water, including
  204  sampling, analysis, and restoration of potable water supplies,
  205  where the contamination of groundwater or surface water is
  206  determined to be the result of the application of fertilizers or
  207  other soil-applied nutritional materials containing nitrogen or
  208  phosphorus, provided the property owner or leaseholder:
  209         (a)1. Provides the department with a notice of intent to
  210  implement applicable interim measures, best management
  211  practices, or other measures adopted by the department which
  212  practices or measures have been verified by the Department of
  213  Environmental Protection to be effective; and
  214         2. Implements applicable interim measures, best management
  215  practices, or other measures as soon as practicable according to
  216  rules adopted by the department or no longer applies fertilizers
  217  or other soil-applied nutritional materials containing nitrogen
  218  or phosphorus; or
  219         (b) No longer applies fertilizers or other soil-applied
  220  nutritional materials containing nitrogen or phosphorus as of
  221  the effective date of this section.
  222         (6)(5) COMPLIANCE.—If the property owner or leaseholder
  223  implements interim measures, best management practices, or other
  224  measures adopted by the department which practices or measures
  225  have been verified by the Department of Environmental Protection
  226  to be effective, and complies with the following, there is a
  227  presumption of compliance with state water quality standards for
  228  such criteria under this section and s. 403.067(7)(c) with
  229  respect to the application of fertilizers or other soil-applied
  230  nutritional materials containing nitrogen or phosphorus:
  231         (a)1. Provides the department with a notice of intent to
  232  implement applicable interim measures, best management
  233  practices, or other measures adopted by the department; and
  234         2. Implements applicable interim measures, best management
  235  practices, or other measures as soon as practicable according to
  236  rules adopted by the department or no longer applies fertilizers
  237  or other soil-applied nutritional materials containing nitrogen
  238  or phosphorus; or
  239         (b) No longer applies fertilizers or other soil-applied
  240  nutritional materials containing nitrogen or phosphorus as of
  241  the effective date of this section.
  242         (7)(6) RULEMAKING.—The department, in consultation with the
  243  Department of Environmental Protection, the Department of
  244  Health, the water management districts, environmental groups,
  245  the fertilizer industry, and representatives from the affected
  246  farming groups, shall adopt rules to:
  247         (a) Specify the requirements of interim measures, best
  248  management practices, or other measures to be implemented by
  249  property owners and leaseholders.
  250         (b) Establish procedures for property owners and
  251  leaseholders to submit the notice of intent to implement and
  252  comply with interim measures, best management practices, or
  253  other measures.
  254         (c) Establish schedules for implementation of interim
  255  measures, best management practices, or other measures.
  256         (d) Establish a system to assure the implementation of best
  257  management practices, including recordkeeping requirements.
  258         (8)(7) OTHER PROVISIONS.—
  259         (a) This section does not limit the authority of the
  260  Department of Environmental Protection to regulate discharges
  261  associated with the commercial feeding of livestock and poultry
  262  defined in chapter 585, including that of dairy farm and egg
  263  production operations, or the disposal of sludge, residuals, or
  264  septage. This paragraph does not grant additional authority to
  265  regulate these discharges.
  266         (b) This section does not limit federally delegated
  267  regulatory authority.
  268         (c) The Department of Environmental Protection may adopt
  269  rules to establish criteria for dairy farms which provide
  270  reasonable assurance that state nitrate groundwater quality
  271  standards will not be violated and which, provided such criteria
  272  are met, shall prohibit the Department of Environmental
  273  Protection from instituting proceedings against any dairy farmer
  274  under the provisions of s. 376.307(5) and shall provide a
  275  presumption of compliance with safe nitrate groundwater quality
  276  standards.
  277         (d) This section, except for subsection (2), does not apply
  278  to the manufacture, mixing, or blending of fertilizer, including
  279  fertilizer containing sludge, residuals, or septage.
  280         (9)(8) EXPIRATION OF PROVISIONS.—Subsections (1), (2), (3),
  281  (5) (4), and (7) (6) expire on December 31, 2032 2022.
  282  Subsections (4), (6), (5) and (8) (7) expire on December 31,
  283  2037 2027.
  284         Section 3. Paragraph (c) of subsection (7) of section
  285  403.067, Florida Statutes, is amended to read:
  286         403.067 Establishment and implementation of total maximum
  287  daily loads.—
  288         (7) DEVELOPMENT OF BASIN MANAGEMENT PLANS AND
  289  IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.—
  290         (c) Best management practices.—
  291         1. The department, in cooperation with the water management
  292  districts and other interested parties, as appropriate, may
  293  develop suitable interim measures, best management practices, or
  294  other measures necessary to achieve the level of pollution
  295  reduction established by the department for nonagricultural
  296  nonpoint pollutant sources in allocations developed pursuant to
  297  subsection (6) and this subsection. These practices and measures
  298  may be adopted by rule by the department and the water
  299  management districts and, where adopted by rule, shall be
  300  implemented by those parties responsible for nonagricultural
  301  nonpoint source pollution.
  302         2. The Department of Agriculture and Consumer Services may
  303  develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
  304  suitable interim measures, best management practices, or other
  305  measures necessary to achieve the level of pollution reduction
  306  established by the department for agricultural pollutant sources
  307  in allocations developed pursuant to subsection (6) and this
  308  subsection or for programs implemented pursuant to paragraph
  309  (12)(b). These practices and measures may be implemented by
  310  those parties responsible for agricultural pollutant sources,
  311  and the department, the water management districts, and the
  312  Department of Agriculture and Consumer Services shall assist
  313  with implementation. In the process of developing and adopting
  314  rules for interim measures, best management practices, or other
  315  measures, the Department of Agriculture and Consumer Services
  316  shall consult with the department, the Department of Health, the
  317  water management districts, representatives from affected
  318  farming groups, and environmental group representatives. Such
  319  rules must also incorporate provisions for a notice of intent to
  320  implement the practices and a system to assure the
  321  implementation of the practices, including site inspection and
  322  recordkeeping requirements.
  323         3. When interim measures, best management practices, or
  324  other measures are adopted by rule, the effectiveness of such
  325  practices in achieving the levels of pollution reduction
  326  established in allocations developed by the department pursuant
  327  to subsection (6) and this subsection or in programs implemented
  328  pursuant to paragraph (12)(b) must be verified at representative
  329  sites by the department. The department shall use its best
  330  professional judgment in making the initial verification that
  331  the best management practices are reasonably expected to be
  332  effective and, when applicable, shall notify the appropriate
  333  water management district or the Department of Agriculture and
  334  Consumer Services of its initial verification before the
  335  adoption of a rule proposed pursuant to this paragraph.
  336  Implementation, in accordance with rules adopted under this
  337  paragraph, of practices that have been initially verified to be
  338  effective, or verified to be effective by monitoring at
  339  representative sites, by the department, or are authorized by s.
  340  576.045, shall provide a presumption of compliance with state
  341  water quality standards and release from s. 376.307(5) for those
  342  pollutants addressed by the practices, and the department is not
  343  authorized to institute proceedings against the owner of the
  344  source of pollution to recover costs or damages associated with
  345  the contamination of surface water or groundwater caused by
  346  those pollutants. Research projects funded by the department, a
  347  water management district, or the Department of Agriculture and
  348  Consumer Services to develop or demonstrate interim measures or
  349  best management practices shall be granted a presumption of
  350  compliance with state water quality standards and a release from
  351  s. 376.307(5). The presumption of compliance and release is
  352  limited to the research site and only for those pollutants
  353  addressed by the interim measures or best management practices.
  354  Eligibility for the presumption of compliance and release is
  355  limited to research projects on sites where the owner or
  356  operator of the research site and the department, a water
  357  management district, or the Department of Agriculture and
  358  Consumer Services have entered into a contract or other
  359  agreement that, at a minimum, specifies the research objectives,
  360  the cost-share responsibilities of the parties, and a schedule
  361  that details the beginning and ending dates of the project.
  362         4. When water quality problems are demonstrated, despite
  363  the appropriate implementation, operation, and maintenance of
  364  best management practices and other measures required by rules
  365  adopted under this paragraph, the department, a water management
  366  district, or the Department of Agriculture and Consumer
  367  Services, in consultation with the department, shall institute a
  368  reevaluation of the best management practice or other measure.
  369  If the reevaluation determines that the best management practice
  370  or other measure requires modification, the department, a water
  371  management district, or the Department of Agriculture and
  372  Consumer Services, as appropriate, shall revise the rule to
  373  require implementation of the modified practice within a
  374  reasonable time period as specified in the rule.
  375         5. Subject to subparagraph 6., the Department of
  376  Agriculture and Consumer Services shall provide to the
  377  department information obtained pursuant to subparagraph (d)3.
  378         6. Agricultural records relating to processes or methods of
  379  production, costs of production, profits, or other financial
  380  information held by the Department of Agriculture and Consumer
  381  Services pursuant to subparagraphs 3., 4., and 5. or pursuant to
  382  any rule adopted pursuant to subparagraph 2. are confidential
  383  and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  384  Constitution. Upon request, records made confidential and exempt
  385  pursuant to this subparagraph shall be released to the
  386  department or any water management district provided that the
  387  confidentiality specified by this subparagraph for such records
  388  is maintained.
  389         7. Subparagraphs 1. and 2. do not preclude the department
  390  or water management district from requiring compliance with
  391  water quality standards or with current best management practice
  392  requirements in any applicable regulatory program authorized by
  393  law for the purpose of protecting water quality. Additionally,
  394  subparagraphs 1. and 2. are applicable only to the extent that
  395  they do not conflict with any rules adopted by the department
  396  that are necessary to maintain a federally delegated or approved
  397  program.
  398         Section 4. This act shall take effect July 1, 2022.