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Senate Bill 2322

Senate Bill sb2322c1

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    Florida Senate - 2005                           CS for SB 2322

    By the Committee on Agriculture; and Senator Alexander





    575-2141-05

  1                      A bill to be entitled

  2         An act relating to total maximum daily loads;

  3         amending s. 403.067, F.S.; providing for the

  4         attainment of pollutant reductions for

  5         achievement of certain water quality standards

  6         in impaired waters; revising provisions for the

  7         allocation of allowable pollutant loads;

  8         authorizing the Department of Environmental

  9         Protection to adopt phased total maximum daily

10         loads under certain conditions; providing for

11         the development and implementation of basin

12         management action plans in developing and

13         implementing total maximum daily loads;

14         revising provisions for the implementation of

15         and compliance with total maximum daily loads;

16         authorizing the department to adopt basin

17         management action plans by order; revising

18         provisions relating to verification by the

19         department of best management practices whose

20         implementation creates a presumption of

21         compliance with certain water quality standards

22         and a release of liability to the state for

23         pollution remediation; revising provisions

24         relating to reevaluation of best management

25         practices when water quality problems occur;

26         removing a provision specifying that provisions

27         relating to the department's verification or

28         reevaluation of best management practices do

29         not preclude authority of the department or the

30         water management districts to require

31         compliance with water quality standards or

                                  1

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    Florida Senate - 2005                           CS for SB 2322
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 1         other specified requirements; authorizing

 2         rulemaking by the department to administer

 3         funds to implement the basin management action

 4         planning program and for other purposes in the

 5         section; requiring the department to submit a

 6         report to the Governor, the President of the

 7         Senate, and the Speaker of the House of

 8         Representatives prior to adopting rules for

 9         pollutant trading; amending ss. 373.4595 and

10         570.085, F.S.; correcting cross-references;

11         providing an effective date.

12  

13  Be It Enacted by the Legislature of the State of Florida:

14  

15         Section 1.  Paragraph (d) of subsection (2) and

16  subsections (6), (7), (8), and (11) of section 403.067,

17  Florida Statutes, are amended to read:

18         403.067  Establishment and implementation of total

19  maximum daily loads.--

20         (2)  LIST OF SURFACE WATERS OR SEGMENTS.--In accordance

21  with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33

22  U.S.C. ss. 1251 et seq., the department must submit

23  periodically to the United States Environmental Protection

24  Agency a list of surface waters or segments for which total

25  maximum daily load assessments will be conducted. The

26  assessments shall evaluate the water quality conditions of the

27  listed waters and, if such waters are determined not to meet

28  water quality standards, total maximum daily loads shall be

29  established, subject to the provisions of subsection (4). The

30  department shall establish a priority ranking and schedule for

31  analyzing such waters.

                                  2

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    Florida Senate - 2005                           CS for SB 2322
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 1         (d)  If the department proposes to implement total

 2  maximum daily load calculations or allocations established

 3  prior to the effective date of this act, the department shall

 4  adopt those calculations and allocations by rule by the

 5  secretary pursuant to ss. 120.536(1) and 120.54 and paragraph

 6  (6)(c)(d).

 7         (6)  CALCULATION AND ALLOCATION.--

 8         (a)  Calculation of total maximum daily load.--

 9         1.  Prior to developing a total maximum daily load

10  calculation for each water body or water body segment on the

11  list specified in subsection (4), the department shall

12  coordinate with applicable local governments, water management

13  districts, the Department of Agriculture and Consumer

14  Services, other appropriate state agencies, local soil and

15  water conservation districts, environmental groups, regulated

16  interests, and affected pollution sources to determine the

17  information required, accepted methods of data collection and

18  analysis, and quality control/quality assurance requirements.

19  The analysis may include mathematical water quality modeling

20  using approved procedures and methods.

21         2.  The department shall develop total maximum daily

22  load calculations for each water body or water body segment on

23  the list described in subsection (4) according to the priority

24  ranking and schedule unless the impairment of such waters is

25  due solely to activities other than point and nonpoint sources

26  of pollution. For waters determined to be impaired due solely

27  to factors other than point and nonpoint sources of pollution,

28  no total maximum daily load will be required. A total maximum

29  daily load may be required for those waters that are impaired

30  predominantly due to activities other than point and nonpoint

31  sources. The total maximum daily load calculation shall

                                  3

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    Florida Senate - 2005                           CS for SB 2322
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 1  establish the amount of a pollutant that a water body or water

 2  body segment may receive from all sources without exceeding

 3  water quality standards, and shall account for seasonal

 4  variations and include a margin of safety that takes into

 5  account any lack of knowledge concerning the relationship

 6  between effluent limitations and water quality. The total

 7  maximum daily load may be based on a pollutant load reduction

 8  goal developed by a water management district, provided that

 9  such pollutant load reduction goal is promulgated by the

10  department in accordance with the procedural and substantive

11  requirements of this subsection.

12         (b)  Allocation of total maximum daily loads.--The

13  total maximum daily loads shall include establishment of

14  reasonable and equitable allocations of the total maximum

15  daily load between or among point and nonpoint sources that

16  will alone, or in conjunction with other management and

17  restoration activities, provide for the attainment of the

18  pollutant reductions established pursuant to paragraph (a) to

19  achieve water quality standards for the pollutant causing

20  impairment and the restoration of impaired waters. The

21  allocations may establish the maximum amount of the water

22  pollutant which from a given source or category of sources

23  that may be discharged or released into the water body or

24  water body segment in combination with other discharges or

25  releases. Allocations may also be made to individual basins

26  and sources or as a whole to all basins and sources or

27  categories of sources of inflow to the water body or water

28  body segments. An initial allocation of allowable pollutant

29  loads among point and nonpoint sources may be developed as

30  part of the total maximum daily load. However, in such cases,

31  the detailed allocation to specific point sources and specific

                                  4

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    Florida Senate - 2005                           CS for SB 2322
    575-2141-05




 1  categories of nonpoint sources shall be established in the

 2  basin management action plan pursuant to subsection (7). The

 3  initial and detailed allocations shall be designed to attain

 4  the pollutant reductions established pursuant to paragraph (a)

 5  water quality standards and shall be based on consideration of

 6  the following:

 7         1.  Existing treatment levels and management practices;

 8         2.  Best management practices established and

 9  implemented pursuant to paragraph (7)(c);

10         3.  Enforceable treatment levels established pursuant

11  to state or local law or permit;

12         4.2.  Differing impacts pollutant sources and forms of

13  pollution may have on water quality;

14         5.3.  The availability of treatment technologies,

15  management practices, or other pollutant reduction measures;

16         6.4.  Environmental, economic, and technological

17  feasibility of achieving the allocation;

18         7.5.  The cost benefit associated with achieving the

19  allocation;

20         8.6.  Reasonable timeframes for implementation;

21         9.7.  Potential applicability of any moderating

22  provisions such as variances, exemptions, and mixing zones;

23  and

24         10.8.  The extent to which nonattainment of water

25  quality standards is caused by pollution sources outside of

26  Florida, discharges that have ceased, or alterations to water

27  bodies prior to the date of this act.

28         (c)  Not later than February 1, 2001, the department

29  shall submit a report to the Governor, the President of the

30  Senate, and the Speaker of the House of Representatives

31  containing recommendations, including draft legislation, for

                                  5

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    Florida Senate - 2005                           CS for SB 2322
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 1  any modifications to the process for allocating total maximum

 2  daily loads, including the relationship between allocations

 3  and the watershed or basin management planning process. Such

 4  recommendations shall be developed by the department in

 5  cooperation with a technical advisory committee which includes

 6  representatives of affected parties, environmental

 7  organizations, water management districts, and other

 8  appropriate local, state, and federal government agencies. The

 9  technical advisory committee shall also include such members

10  as may be designated by the President of the Senate and the

11  Speaker of the House of Representatives.

12         (c)(d)  Adoption of rules.--The total maximum daily

13  load calculations and allocations established under this

14  subsection for each water body or water body segment shall be

15  adopted by rule by the secretary pursuant to ss. 120.536(1),

16  120.54, and 403.805. Where additional data collection and

17  analysis are needed to increase the scientific precision and

18  accuracy of the total maximum daily load, the department may

19  adopt phased total maximum daily loads that are subject to

20  change as additional data becomes available. Where phased

21  total maximum daily loads are proposed, the department shall,

22  in the detailed statement of facts and circumstances

23  justifying the rule, explain why the data are inadequate so as

24  to justify a phased total maximum daily load. The rules

25  adopted pursuant to this paragraph shall not be subject to

26  approval by the Environmental Regulation Commission. As part

27  of the rule development process, the department shall hold at

28  least one public workshop in the vicinity of the water body or

29  water body segment for which the total maximum daily load is

30  being developed. Notice of the public workshop shall be

31  published not less than 5 days nor more than 15 days before

                                  6

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    Florida Senate - 2005                           CS for SB 2322
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 1  the public workshop in a newspaper of general circulation in

 2  the county or counties containing the water bodies or water

 3  body segments for which the total maximum daily load

 4  calculation and allocation are being developed.

 5         (7)  DEVELOPMENT OF BASIN MANAGEMENT ACTION PLANS;

 6  IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS; BEST MANAGEMENT

 7  PRACTICES.--

 8         (a)  Basin management action plans.--

 9         1.  In developing and implementing the total maximum

10  daily load for a water body, the department, or the department

11  in conjunction with a water management district, may develop a

12  basin management action plan that addresses some or all of the

13  watersheds and basins tributary to the water body. Such a plan

14  shall integrate the appropriate management strategies

15  available to the state through existing water quality

16  protection programs to achieve the total maximum daily load

17  and may provide for phased implementation of these management

18  strategies to promote timely, cost-effective actions as

19  provided for in s. 403.151. The plan shall establish a

20  schedule for implementing the management strategies, establish

21  a basis for evaluating the plan's effectiveness, and identify

22  feasible funding strategies to implement the plan's management

23  strategies. The management strategies may include regional

24  treatment systems or other public works, where appropriate, to

25  achieve the needed pollutant load reductions.

26         2.  A basin management action plan shall, pursuant to

27  paragraph (6)(b), equitably allocate pollutant reductions to

28  individual basins, as a whole to all basins or to each

29  identified point source or category of nonpoint sources, as

30  appropriate. For nonpoint sources for which best management

31  practices have been adopted, the initial requirement specified

                                  7

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    Florida Senate - 2005                           CS for SB 2322
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 1  by the plan shall be those practices developed pursuant to

 2  paragraph (c). Where appropriate, the plan may provide

 3  pollutant load reduction credit to those dischargers that have

 4  implemented management strategies to reduce pollutant loads,

 5  including best management practices, prior to the development

 6  of the basin management action plan. The plan also shall

 7  identify the mechanisms by which potential future increases in

 8  pollutant loading will be addressed.

 9         3.  The basin management action planning process is

10  intended to involve the broadest possible range of interested

11  parties, with the objective of encouraging the greatest amount

12  of cooperation and consensus possible. In developing a basin

13  management action plan, the department shall ensure that key

14  stakeholders, including, but not limited to, applicable local

15  governments, water management districts, the Department of

16  Agriculture and Consumer Services, other appropriate state

17  agencies, local soil and water conservation districts,

18  environmental groups, regulated interests, and affected

19  pollution sources are invited to participate in the process.

20  The department shall hold at least one public meeting in the

21  vicinity of the watershed or basin to discuss and receive

22  comments during the planning process and shall otherwise

23  encourage public participation to the greatest practical

24  extent. Not fewer than 5 days or more than 15 days before the

25  public meeting, notice of the public meeting shall be

26  published in a newspaper of general circulation in each county

27  in which the watershed or basin lies. A basin management

28  action plan shall not supplant or otherwise alter any

29  assessment made under subsection (3) or subsection (4) or any

30  calculation or preliminary allocation made under subsection

31  (6).

                                  8

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    Florida Senate - 2005                           CS for SB 2322
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 1         4.  The department shall adopt all or any part of a

 2  basin management action plan by secretarial order pursuant to

 3  chapter 120 to implement this section.

 4         5.  The basin management action plan must include

 5  milestones for implementation and water quality improvement

 6  and an associated water quality monitoring component

 7  sufficient to evaluate whether reasonable progress in

 8  pollutant load reductions is being achieved over time. An

 9  assessment of progress toward these milestones shall be

10  conducted every 5 years and revisions to the plan shall be

11  made as appropriate. Revisions to the basin management action

12  plan shall be made by the department in cooperation with basin

13  stakeholders. Revisions to the management strategies required

14  for nonpoint sources shall follow the procedures set forth in

15  subparagraph (c)4. Revised basin management action plans shall

16  be adopted pursuant to subparagraph 4.

17         (b)  Total maximum daily load implementation.--

18         1.(a)  The department shall be the lead agency in

19  coordinating the implementation of the total maximum daily

20  loads through existing water quality protection programs.

21  Application of a total maximum daily load by a water

22  management district shall be consistent with this section and

23  shall not require the issuance of an order or a separate

24  action pursuant to s. 120.536(1) or s. 120.54 for adoption of

25  the calculation and allocation previously established by the

26  department. Such programs may include, but are not limited to:

27         a.1.  Permitting and other existing regulatory

28  programs, including water-quality-based effluent limitations;

29         b.2.  Nonregulatory and incentive-based programs,

30  including best management practices, cost sharing, waste

31  

                                  9

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    Florida Senate - 2005                           CS for SB 2322
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 1  minimization, pollution prevention, agreements established

 2  pursuant to s. 403.061(21), and public education;

 3         c.3.  Other water quality management and restoration

 4  activities, for example surface water improvement and

 5  management plans approved by water management districts or

 6  watershed or basin management action plans developed pursuant

 7  to this subsection;

 8         d.4.  Pollutant trading or other equitable economically

 9  based agreements;

10         e.5.  Public works including capital facilities; or

11         f.6.  Land acquisition.

12         2.  For a basin management action plan adopted pursuant

13  to subparagraph (a)4., any management strategies and pollutant

14  reduction requirements associated with a pollutant of concern

15  for which a total maximum daily load was developed, including

16  effluent limits set forth for a discharger subject to NPDES

17  permitting, if any, shall be included in subsequent NPDES

18  permits or permit modifications for that discharger in a

19  timely manner. The department shall not impose limits or

20  conditions implementing an adopted total maximum daily load in

21  a NPDES permit until the permit expires, the discharge is

22  modified, or the permit is reopened pursuant to an adopted

23  basin management action plan.

24         a.  For holders of NPDES municipal separate storm sewer

25  system permits and other stormwater sources, implementation of

26  a total maximum daily load or basin management action plan

27  shall be achieved, to the maximum extent practicable, through

28  the use of best management practices or other management

29  measures.

30         b.  The basin management action plan does not relieve

31  the discharger from any requirement to obtain, renew, or

                                  10

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    Florida Senate - 2005                           CS for SB 2322
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 1  modify a NPDES permit or to abide by other requirements of the

 2  permit.

 3         c.  Management strategies set forth in a basin

 4  management action plan to be implemented by a discharger

 5  subject to permitting by the department shall be completed

 6  pursuant to the schedule set forth in the basin management

 7  action plan. This implementation schedule may extend beyond

 8  the 5-year term of a NPDES permit.

 9         d.  Management strategies and pollution reduction

10  requirements set forth in a basin management action plan for a

11  specific pollutant of concern shall not be subject to

12  challenge under chapter 120 at the time they are incorporated,

13  in an identical form, into a subsequent NPDES permit or permit

14  modification.

15         e.  For nonagricultural pollutant sources not subject

16  to NPDES permitting but permitted pursuant to other state,

17  regional, or local water quality programs, the pollutant

18  reduction actions adopted in a basin management action plan

19  shall be implemented to the maximum extent practicable as part

20  of those permitting programs.

21         f.  A nonpoint pollutant source discharger included in

22  a basin management action plan shall demonstrate compliance

23  with the pollutant reductions established pursuant to

24  subsection (6) by implementing the appropriate best management

25  practices established pursuant to paragraph (c) or by

26  conducting the water quality monitoring prescribed by the

27  department or a water management district.

28         g.  A nonpoint pollutant source discharger included in

29  a basin management action plan may be subject to enforcement

30  action by the department or a water management district based

31  

                                  11

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    Florida Senate - 2005                           CS for SB 2322
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 1  upon the failure to implement the responsibilities in

 2  sub-subparagraph f.

 3         h.  A landowner, discharger, or other responsible

 4  person who is implementing applicable management strategies

 5  specified in an adopted basin management action plan shall not

 6  be required by permit, enforcement action, or otherwise to

 7  implement additional management strategies to reduce pollutant

 8  loads to attain the pollutant reductions established pursuant

 9  to subsection (6) and shall be deemed to be in compliance with

10  this section. This subparagraph does not limit the authority

11  of the department to amend a basin management action plan as

12  specified in subparagraph (a)5.

13         (b)  In developing and implementing the total maximum

14  daily load for a water body, the department, or the department

15  in conjunction with a water management district, may develop a

16  watershed or basin management plan that addresses some or all

17  of the watersheds and basins tributary to the water body.

18  These plans will serve to fully integrate the management

19  strategies available to the state for the purpose of

20  implementing the total maximum daily loads and achieving water

21  quality restoration. The watershed or basin management

22  planning process is intended to involve the broadest possible

23  range of interested parties, with the objective of encouraging

24  the greatest amount of cooperation and consensus possible. The

25  department or water management district shall hold at least

26  one public meeting in the vicinity of the watershed or basin

27  to discuss and receive comments during the planning process

28  and shall otherwise encourage public participation to the

29  greatest practical extent. Notice of the public meeting shall

30  be published in a newspaper of general circulation in each

31  county in which the watershed or basin lies not less than 5

                                  12

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    Florida Senate - 2005                           CS for SB 2322
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 1  days nor more than 15 days before the public meeting. A

 2  watershed or basin management plan shall not supplant or

 3  otherwise alter any assessment made under s. 403.086(3) and

 4  (4), or any calculation or allocation made under s.

 5  403.086(6).

 6         (c)  Best management practices.--

 7         1.  The department, in cooperation with the water

 8  management districts and other interested parties, as

 9  appropriate, may develop suitable interim measures, best

10  management practices, or other measures necessary to achieve

11  the level of pollution reduction established by the department

12  for nonagricultural nonpoint pollutant sources in allocations

13  developed pursuant to this subsection and subsection (6)

14  paragraph (6)(b). These practices and measures may be adopted

15  by rule by the department and the water management districts

16  pursuant to ss. 120.536(1) and 120.54, and, where adopted by

17  rule, shall may be implemented by those parties responsible

18  for nonagricultural nonpoint source pollution pollutant

19  sources and the department and the water management districts

20  shall assist with implementation. Where interim measures, best

21  management practices, or other measures are adopted by rule,

22  the effectiveness of such practices in achieving the levels of

23  pollution reduction established in allocations developed by

24  the department pursuant to paragraph (6)(b) shall be verified

25  by the department. Implementation, in accordance with

26  applicable rules, of practices that have been verified by the

27  department to be effective at representative sites shall

28  provide a presumption of compliance with state water quality

29  standards and release from the provisions of s. 376.307(5) for

30  those pollutants addressed by the practices, and the

31  department is not authorized to institute proceedings against

                                  13

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    Florida Senate - 2005                           CS for SB 2322
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 1  the owner of the source of pollution to recover costs or

 2  damages associated with the contamination of surface or ground

 3  water caused by those pollutants. Such rules shall also

 4  incorporate provisions for a notice of intent to implement the

 5  practices and a system to assure the implementation of the

 6  practices, including recordkeeping requirements. Where water

 7  quality problems are detected despite the appropriate

 8  implementation, operation, and maintenance of best management

 9  practices and other measures according to rules adopted under

10  this paragraph, the department or the water management

11  districts shall institute a reevaluation of the best

12  management practice or other measures.

13         2.(d)1.  The Department of Agriculture and Consumer

14  Services may develop and adopt by rule pursuant to ss.

15  120.536(1) and 120.54 suitable interim measures, best

16  management practices, or other measures necessary to achieve

17  the level of pollution reduction established by the department

18  for agricultural pollutant sources in allocations developed

19  pursuant to this subsection and subsection (6) paragraph

20  (6)(b). These practices and measures may be implemented by

21  those parties responsible for agricultural pollutant sources

22  and the department, the water management districts, and the

23  Department of Agriculture and Consumer Services shall assist

24  with implementation. Where interim measures, best management

25  practices, or other measures are adopted by rule, the

26  effectiveness of such practices in achieving the levels of

27  pollution reduction established in allocations developed by

28  the department pursuant to paragraph (6)(b) shall be verified

29  by the department. Implementation, in accordance with

30  applicable rules, of practices that have been verified by the

31  department to be effective at representative sites shall

                                  14

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 1  provide a presumption of compliance with state water quality

 2  standards and release from the provisions of s. 376.307(5) for

 3  those pollutants addressed by the practices, and the

 4  department is not authorized to institute proceedings against

 5  the owner of the source of pollution to recover costs or

 6  damages associated with the contamination of surface or ground

 7  water caused by those pollutants. In the process of developing

 8  and adopting rules for interim measures, best management

 9  practices, or other measures, the Department of Agriculture

10  and Consumer Services shall consult with the department, the

11  Department of Health, the water management districts,

12  representatives from affected farming groups, and

13  environmental group representatives. Such rules shall also

14  incorporate provisions for a notice of intent to implement the

15  practices and a system to assure the implementation of the

16  practices, including recordkeeping requirements. Where water

17  quality problems are detected despite the appropriate

18  implementation, operation, and maintenance of best management

19  practices and other measures according to rules adopted under

20  this paragraph, the Department of Agriculture and Consumer

21  Services shall institute a reevaluation of the best management

22  practice or other measure.

23         3.  Where interim measures, best management practices,

24  or other measures are adopted by rule, the effectiveness of

25  such practices in achieving the levels of pollution reduction

26  established in allocations developed by the department

27  pursuant to this subsection and subsection (6) shall be

28  verified at representative sites by the department. The

29  department shall use best professional judgment in making the

30  initial verification that the best management practices are

31  effective and, where applicable, shall notify the appropriate

                                  15

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 1  water management district or the Department of Agriculture and

 2  Consumer Services of its initial verification prior to the

 3  adoption of a rule proposed pursuant to this paragraph.

 4  Implementation, in accordance with rules adopted under this

 5  paragraph, of practices that have been initially verified to

 6  be effective, or verified to be effective by monitoring at

 7  representative sites, by the department shall provide a

 8  presumption of compliance with state water quality standards

 9  and release from the provisions of s. 376.307(5) for those

10  pollutants addressed by the practices, and the department is

11  not authorized to institute proceedings against the owner of

12  the source of pollution to recover costs or damages associated

13  with the contamination of surface or ground water caused by

14  those pollutants.

15         4.  Where water quality problems are demonstrated

16  during the development or amendment of a basin management

17  action plan, despite the appropriate implementation,

18  operation, and maintenance of best management practices and

19  other measures according to rules adopted under this

20  paragraph, the department, or a water management district or

21  the Department of Agriculture and Consumer Services in

22  consultation with the department, shall institute a

23  reevaluation of the best management practice or other measure.

24  Should the reevaluation determine that the best management

25  practice or other measure requires modification, the

26  department, a water management district, or the Department of

27  Agriculture and Consumer Services, as appropriate, shall

28  revise the rule to require implementation of the modified

29  practice within a reasonable time period as specified in the

30  rule.

31  

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 1         5.2.  Individual agricultural records relating to

 2  processes or methods of production, or relating to costs of

 3  production, profits, or other financial information which are

 4  otherwise not public records, which are reported to the

 5  Department of Agriculture and Consumer Services pursuant to

 6  subparagraphs 3. and 4. this paragraph or pursuant to any rule

 7  adopted pursuant to subparagraph 2. this paragraph shall be

 8  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I

 9  of the State Constitution. Upon request of the department or

10  any water management district, the Department of Agriculture

11  and Consumer Services shall make such individual agricultural

12  records available to that agency, provided that the

13  confidentiality specified by this subparagraph for such

14  records is maintained. This subparagraph is subject to the

15  Open Government Sunset Review Act of 1995 in accordance with

16  s. 119.15, and shall stand repealed on October 2, 2006, unless

17  reviewed and saved from repeal through reenactment by the

18  Legislature.

19         6.(e)  The provisions of subparagraphs 1. and 2.

20  paragraphs (c) and (d) shall not preclude the department or

21  water management district from requiring compliance with water

22  quality standards or with current best management practice

23  requirements set forth in any applicable regulatory program

24  authorized by law for the purpose of protecting water quality.

25  Additionally, subparagraphs 1. and 2. paragraphs (c) and (d)

26  are applicable only to the extent that they do not conflict

27  with any rules adopted promulgated by the department that are

28  necessary to maintain a federally delegated or approved

29  program.

30         (8)  RULES.--The department is authorized to adopt

31  rules pursuant to ss. 120.536(1) and 120.54 for:

                                  17

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 1         (a)  Delisting water bodies or water body segments from

 2  the list developed under subsection (4) pursuant to the

 3  guidance under subsection (5).;

 4         (b)  Administration of funds to implement the total

 5  maximum daily load and basin management action planning

 6  program.;

 7         (c)  Procedures for pollutant trading among the

 8  pollutant sources to a water body or water body segment,

 9  including a mechanism for the issuance and tracking of

10  pollutant credits. Such procedures may be implemented through

11  permits or other authorizations and must be legally binding.

12  Prior to adopting rules for pollutant trading under this

13  paragraph, and no later than November 30, 2006, the Department

14  of Environmental Protection shall submit to the Governor, the

15  President of the Senate, and the Speaker of the House of

16  Representatives a report containing recommendations on such

17  rules, including the proposed basis for equitable economically

18  based agreements and the tracking and accounting of pollution

19  credits or other similar mechanisms. Such recommendations

20  shall be developed in cooperation with a technical advisory

21  committee that includes representatives of environmental

22  organizations, industry, local government, homebuilders, water

23  management districts, agriculture, stormwater utilities, and

24  municipal utilities. No rule implementing a pollutant trading

25  program shall become effective prior to review and

26  ratification by the Legislature; and

27         (d)  The total maximum daily load calculation in

28  accordance with paragraph (6)(a) immediately upon the

29  effective date of this act, for those eight water segments

30  within Lake Okeechobee proper as submitted to the United

31  

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 1  States Environmental Protection Agency pursuant to subsection

 2  (2).

 3         (e)  Any other purpose specifically provided for in

 4  this section.

 5         (11)  IMPLEMENTATION OF ADDITIONAL PROGRAMS.--

 6         (a)  The department shall not implement, without prior

 7  legislative approval, any additional regulatory authority

 8  pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part

 9  130, if such implementation would result in water quality

10  discharge regulation of activities not currently subject to

11  regulation.

12         (b)  Interim measures, best management practices, or

13  other measures may be developed and voluntarily implemented

14  pursuant to subparagraph (7)(c)1. or subparagraph (7)(c)2.

15  paragraph (7)(c) or paragraph (7)(d) for any water body or

16  segment for which a total maximum daily load or allocation has

17  not been established. The implementation of such pollution

18  control programs may be considered by the department in the

19  determination made pursuant to subsection (4).

20         Section 2.  Paragraph (c) of subsection (3) of section

21  373.4595, Florida Statutes, is amended to read:

22         373.4595  Lake Okeechobee Protection Program.--

23         (3)  LAKE OKEECHOBEE PROTECTION PROGRAM.--A protection

24  program for Lake Okeechobee that achieves phosphorus load

25  reductions for Lake Okeechobee shall be immediately

26  implemented as specified in this subsection. The program shall

27  address the reduction of phosphorus loading to the lake from

28  both internal and external sources. Phosphorus load reductions

29  shall be achieved through a phased program of implementation.

30  Initial implementation actions shall be technology-based,

31  based upon a consideration of both the availability of

                                  19

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 1  appropriate technology and the cost of such technology, and

 2  shall include phosphorus reduction measures at both the source

 3  and the regional level. The initial phase of phosphorus load

 4  reductions shall be based upon the district's Technical

 5  Publication 81-2 and the district's WOD program, with

 6  subsequent phases of phosphorus load reductions based upon the

 7  total maximum daily loads established in accordance with s.

 8  403.067. In the development and administration of the Lake

 9  Okeechobee Protection Program, the coordinating agencies shall

10  maximize opportunities provided by federal cost-sharing

11  programs and opportunities for partnerships with the private

12  sector.

13         (c)  Lake Okeechobee Watershed Phosphorus Control

14  Program.--The Lake Okeechobee Watershed Phosphorus Control

15  Program is designed to be a multifaceted approach to reducing

16  phosphorus loads by improving the management of phosphorus

17  sources within the Lake Okeechobee watershed through continued

18  implementation of existing regulations and best management

19  practices, development and implementation of improved best

20  management practices, improvement and restoration of the

21  hydrologic function of natural and managed systems, and

22  utilization of alternative technologies for nutrient

23  reduction. The coordinating agencies shall facilitate the

24  application of federal programs that offer opportunities for

25  water quality treatment, including preservation, restoration,

26  or creation of wetlands on agricultural lands.

27         1.  Agricultural nonpoint source best management

28  practices, developed in accordance with s. 403.067 and

29  designed to achieve the objectives of the Lake Okeechobee

30  Protection Program, shall be implemented on an expedited

31  basis. By March 1, 2001, the coordinating agencies shall

                                  20

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 1  develop an interagency agreement pursuant to ss. 373.046 and

 2  373.406(5) that assures the development of best management

 3  practices that complement existing regulatory programs and

 4  specifies how those best management practices are implemented

 5  and verified. The interagency agreement shall address measures

 6  to be taken by the coordinating agencies during any best

 7  management practice reevaluation performed pursuant to

 8  sub-subparagraph d. The department shall use best professional

 9  judgment in making the initial determination of best

10  management practice effectiveness.

11         a.  As provided in s. 403.067(7)(c)(d), by October 1,

12  2000, the Department of Agriculture and Consumer Services, in

13  consultation with the department, the district, and affected

14  parties, shall initiate rule development for interim measures,

15  best management practices, conservation plans, nutrient

16  management plans, or other measures necessary for Lake

17  Okeechobee phosphorus load reduction. The rule shall include

18  thresholds for requiring conservation and nutrient management

19  plans and criteria for the contents of such plans. Development

20  of agricultural nonpoint source best management practices

21  shall initially focus on those priority basins listed in

22  subparagraph (b)1. The Department of Agriculture and Consumer

23  Services, in consultation with the department, the district,

24  and affected parties, shall conduct an ongoing program for

25  improvement of existing and development of new interim

26  measures or best management practices for the purpose of

27  adoption of such practices by rule.

28         b.  Where agricultural nonpoint source best management

29  practices or interim measures have been adopted by rule of the

30  Department of Agriculture and Consumer Services, the owner or

31  operator of an agricultural nonpoint source addressed by such

                                  21

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 1  rule shall either implement interim measures or best

 2  management practices or demonstrate compliance with the

 3  district's WOD program by conducting monitoring prescribed by

 4  the department or the district. Owners or operators of

 5  agricultural nonpoint sources who implement interim measures

 6  or best management practices adopted by rule of the Department

 7  of Agriculture and Consumer Services shall be subject to the

 8  provisions of s. 403.067(7). The Department of Agriculture and

 9  Consumer Services, in cooperation with the department and the

10  district, shall provide technical and financial assistance for

11  implementation of agricultural best management practices,

12  subject to the availability of funds.

13         c.  The district or department shall conduct monitoring

14  at representative sites to verify the effectiveness of

15  agricultural nonpoint source best management practices.

16         d.  Where water quality problems are detected for

17  agricultural nonpoint sources despite the appropriate

18  implementation of adopted best management practices, the

19  Department of Agriculture and Consumer Services, in

20  consultation with the other coordinating agencies and affected

21  parties, shall institute a reevaluation of the best management

22  practices and make appropriate changes to the rule adopting

23  best management practices.

24         2.  Nonagricultural nonpoint source best management

25  practices, developed in accordance with s. 403.067 and

26  designed to achieve the objectives of the Lake Okeechobee

27  Protection Program, shall be implemented on an expedited

28  basis. By March 1, 2001, the department and the district shall

29  develop an interagency agreement pursuant to ss. 373.046 and

30  373.406(5) that assures the development of best management

31  practices that complement existing regulatory programs and

                                  22

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 1  specifies how those best management practices are implemented

 2  and verified. The interagency agreement shall address measures

 3  to be taken by the department and the district during any best

 4  management practice reevaluation performed pursuant to

 5  sub-subparagraph d.

 6         a.  The department and the district are directed to

 7  work with the University of Florida's Institute of Food and

 8  Agricultural Sciences to develop appropriate nutrient

 9  application rates for all nonagricultural soil amendments in

10  the watershed. As provided in s. 403.067(7)(c), by January 1,

11  2001, the department, in consultation with the district and

12  affected parties, shall develop interim measures, best

13  management practices, or other measures necessary for Lake

14  Okeechobee phosphorus load reduction. Development of

15  nonagricultural nonpoint source best management practices

16  shall initially focus on those priority basins listed in

17  subparagraph (b)1. The department, the district, and affected

18  parties shall conduct an ongoing program for improvement of

19  existing and development of new interim measures or best

20  management practices. The district shall adopt

21  technology-based standards under the district's WOD program

22  for nonagricultural nonpoint sources of phosphorus.

23         b.  Where nonagricultural nonpoint source best

24  management practices or interim measures have been developed

25  by the department and adopted by the district, the owner or

26  operator of a nonagricultural nonpoint source shall implement

27  interim measures or best management practices and be subject

28  to the provisions of s. 403.067(7). The department and

29  district shall provide technical and financial assistance for

30  implementation of nonagricultural nonpoint source best

31  management practices, subject to the availability of funds.

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 1         c.  The district or the department shall conduct

 2  monitoring at representative sites to verify the effectiveness

 3  of nonagricultural nonpoint source best management practices.

 4         d.  Where water quality problems are detected for

 5  nonagricultural nonpoint sources despite the appropriate

 6  implementation of adopted best management practices, the

 7  department and the district shall institute a reevaluation of

 8  the best management practices.

 9         3.  The provisions of subparagraphs 1. and 2. shall not

10  preclude the department or the district from requiring

11  compliance with water quality standards or with current best

12  management practices requirements set forth in any applicable

13  regulatory program authorized by law for the purpose of

14  protecting water quality. Additionally, subparagraphs 1. and

15  2. are applicable only to the extent that they do not conflict

16  with any rules promulgated by the department that are

17  necessary to maintain a federally delegated or approved

18  program.

19         4.  Projects which reduce the phosphorus load

20  originating from domestic wastewater systems within the Lake

21  Okeechobee watershed shall be given funding priority in the

22  department's revolving loan program under s. 403.1835. The

23  department shall coordinate and provide assistance to those

24  local governments seeking financial assistance for such

25  priority projects.

26         5.  Projects that make use of private lands, or lands

27  held in trust for Indian tribes, to reduce nutrient loadings

28  or concentrations within a basin by one or more of the

29  following methods: restoring the natural hydrology of the

30  basin, restoring wildlife habitat or impacted wetlands,

31  reducing peak flows after storm events, increasing aquifer

                                  24

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 1  recharge, or protecting range and timberland from conversion

 2  to development, are eligible for grants available under this

 3  section from the coordinating agencies. For projects of

 4  otherwise equal priority, special funding priority will be

 5  given to those projects that make best use of the methods

 6  outlined above that involve public-private partnerships or

 7  that obtain federal match money. Preference ranking above the

 8  special funding priority will be given to projects located in

 9  a rural area of critical economic concern designated by the

10  Governor. Grant applications may be submitted by any person or

11  tribal entity, and eligible projects may include, but are not

12  limited to, the purchase of conservation and flowage

13  easements, hydrologic restoration of wetlands, creating

14  treatment wetlands, development of a management plan for

15  natural resources, and financial support to implement a

16  management plan.

17         6.a.  The department shall require all entities

18  disposing of domestic wastewater residuals within the Lake

19  Okeechobee watershed and the remaining areas of Okeechobee,

20  Glades, and Hendry Counties to develop and submit to the

21  department an agricultural use plan that limits applications

22  based upon phosphorus loading. By July 1, 2005, phosphorus

23  concentrations originating from these application sites shall

24  not exceed the limits established in the district's WOD

25  program.

26         b.  Private and government-owned utilities within

27  Monroe, Dade, Broward, Palm Beach, Martin, St. Lucie, Indian

28  River, Okeechobee, Highlands, Hendry, and Glades Counties that

29  dispose of wastewater residual sludge from utility operations

30  and septic removal by land spreading in the Lake Okeechobee

31  watershed may use a line item on local sewer rates to cover

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 1  wastewater residual treatment and disposal if such disposal

 2  and treatment is done by approved alternative treatment

 3  methodology at a facility located within the areas designated

 4  by the Governor as rural areas of critical economic concern

 5  pursuant to s. 288.0656. This additional line item is an

 6  environmental protection disposal fee above the present sewer

 7  rate and shall not be considered a part of the present sewer

 8  rate to customers, notwithstanding provisions to the contrary

 9  in chapter 367. The fee shall be established by the county

10  commission or its designated assignee in the county in which

11  the alternative method treatment facility is located. The fee

12  shall be calculated to be no higher than that necessary to

13  recover the facility's prudent cost of providing the service.

14  Upon request by an affected county commission, the Florida

15  Public Service Commission will provide assistance in

16  establishing the fee. Further, for utilities and utility

17  authorities that use the additional line item environmental

18  protection disposal fee, such fee shall not be considered a

19  rate increase under the rules of the Public Service Commission

20  and shall be exempt from such rules. Utilities using the

21  provisions of this section may immediately include in their

22  sewer invoicing the new environmental protection disposal fee.

23  Proceeds from this environmental protection disposal fee shall

24  be used for treatment and disposal of wastewater residuals,

25  including any treatment technology that helps reduce the

26  volume of residuals that require final disposal, but such

27  proceeds shall not be used for transportation or shipment

28  costs for disposal or any costs relating to the land

29  application of residuals in the Lake Okeechobee watershed.

30         c.  No less frequently than once every 3 years, the

31  Florida Public Service Commission or the county commission

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 1  through the services of an independent auditor shall perform a

 2  financial audit of all facilities receiving compensation from

 3  an environmental protection disposal fee. The Florida Public

 4  Service Commission or the county commission through the

 5  services of an independent auditor shall also perform an audit

 6  of the methodology used in establishing the environmental

 7  protection disposal fee. The Florida Public Service Commission

 8  or the county commission shall, within 120 days after

 9  completion of an audit, file the audit report with the

10  President of the Senate and the Speaker of the House of

11  Representatives and shall provide copies to the county

12  commissions of the counties set forth in sub-subparagraph b.

13  The books and records of any facilities receiving compensation

14  from an environmental protection disposal fee shall be open to

15  the Florida Public Service Commission and the Auditor General

16  for review upon request.

17         7.  The Department of Health shall require all entities

18  disposing of septage within the Lake Okeechobee watershed and

19  the remaining areas of Okeechobee, Glades, and Hendry Counties

20  to develop and submit to that agency, by July 1, 2003, an

21  agricultural use plan that limits applications based upon

22  phosphorus loading. By July 1, 2005, phosphorus concentrations

23  originating from these application sites shall not exceed the

24  limits established in the district's WOD program.

25         8.  The Department of Agriculture and Consumer Services

26  shall initiate rulemaking requiring entities within the Lake

27  Okeechobee watershed and the remaining areas of Okeechobee,

28  Glades, and Hendry Counties which land-apply animal manure to

29  develop conservation or nutrient management plans that limit

30  application, based upon phosphorus loading. Such rules may

31  include criteria and thresholds for the requirement to develop

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 1  a conservation or nutrient management plan, requirements for

 2  plan approval, and recordkeeping requirements.

 3         9.  Prior to authorizing a discharge into works of the

 4  district, the district shall require responsible parties to

 5  demonstrate that proposed changes in land use will not result

 6  in increased phosphorus loading over that of existing land

 7  uses.

 8         10.  The district, the department, or the Department of

 9  Agriculture and Consumer Services, as appropriate, shall

10  implement those alternative nutrient reduction technologies

11  determined to be feasible pursuant to subparagraph (d)6.

12         Section 3.  Subsection (1) of section 570.085, Florida

13  Statutes, is amended to read:

14         570.085  Department of Agriculture and Consumer

15  Services; agricultural water conservation.--The department

16  shall establish an agricultural water conservation program

17  that includes the following:

18         (1)  A cost-share program, coordinated where

19  appropriate with the United States Department of Agriculture

20  and other federal, state, regional, and local agencies, for

21  irrigation system retrofit and application of mobile

22  irrigation laboratory evaluations for water conservation as

23  provided in this section and, where applicable, for water

24  quality improvement pursuant to s. 403.067(7)(c)(d).

25         Section 4.  This act shall take effect upon becoming a

26  law.

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2322

 3                                 

 4  Committee Substitute for Senate Bill 2322 is different from
    Senate Bill 2322 in that it:
 5  
    1.   Clarifies that load allocations will be established for
 6       the purpose of achieving water quality standards and
         requires basin management action plans to include a
 7       monitoring component for evaluating progress in improving
         water quality.
 8  
    2.   Provides that total maximum daily load implementation
 9       will be accomplished within the structure of existing
         Department of Environmental Protection water quality
10       programs.

11  3.   Makes clarifying and technical changes.

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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