Amendment
Bill No. CS/HB 547
Amendment No. 088463
CHAMBER ACTION
Senate House
.
.
.






1Representative Kreegel offered the following:
2
3     Amendment (with title amendment)
4     Remove everything after the enacting clause and insert:
5     Section 1.  Subsections (7) and (8) of section 403.067,
6Florida Statutes, are amended, present subsections (9) through
7(12) are renumbered as sections (11) through (14), respectively,
8and new subsections (8) and (10) are added to that section, to
9read:
10     403.067  Establishment and implementation of total maximum
11daily loads.--
12     (7)  DEVELOPMENT OF BASIN MANAGEMENT PLANS AND
13IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.--
14     (a)  Basin management action plans.--
15     1.  In developing and implementing the total maximum daily
16load for a water body, the department, or the department in
17conjunction with a water management district, may develop a
18basin management action plan that addresses some or all of the
19watersheds and basins tributary to the water body. Such a plan
20must shall integrate the appropriate management strategies
21available to the state through existing water quality protection
22programs to achieve the total maximum daily loads and may
23provide for phased implementation of these management strategies
24to promote timely, cost-effective actions as provided for in s.
25403.151. The plan must shall establish a schedule for
26implementing the management strategies, establish a basis for
27evaluating the plan's effectiveness, and identify feasible
28funding strategies for implementing the plan's management
29strategies. The management strategies may include regional
30treatment systems or other public works, where appropriate, and,
31in the basin listed in subsection (10) for which a basin
32management action plan has been adopted, voluntary trading of
33water quality credits to achieve the needed pollutant load
34reductions.
35     2.  A basin management action plan must shall equitably
36allocate, pursuant to paragraph (6)(b), pollutant reductions to
37individual basins, as a whole to all basins, or to each
38identified point source or category of nonpoint sources, as
39appropriate. For nonpoint sources for which best management
40practices have been adopted, the initial requirement specified
41by the plan must shall be those practices developed pursuant to
42paragraph (c). Where appropriate, the plan may take into account
43the benefits of provide pollutant load reduction achieved by
44point or nonpoint sources credits to dischargers that have
45implemented management strategies to reduce pollutant loads,
46including best management practices, prior to the development of
47the basin management action plan. The plan must shall also
48identify the mechanisms that will address by which potential
49future increases in pollutant loading will be addressed.
50     3.  The basin management action planning process is
51intended to involve the broadest possible range of interested
52parties, with the objective of encouraging the greatest amount
53of cooperation and consensus possible. In developing a basin
54management action plan, the department shall assure that key
55stakeholders, including, but not limited to, applicable local
56governments, water management districts, the Department of
57Agriculture and Consumer Services, other appropriate state
58agencies, local soil and water conservation districts,
59environmental groups, regulated interests, and affected
60pollution sources, are invited to participate in the process.
61The department shall hold at least one public meeting in the
62vicinity of the watershed or basin to discuss and receive
63comments during the planning process and shall otherwise
64encourage public participation to the greatest practicable
65extent. Notice of the public meeting must shall be published in
66a newspaper of general circulation in each county in which the
67watershed or basin lies not less than 5 days nor more than 15
68days before the public meeting. A basin management action plan
69shall not supplant or otherwise alter any assessment made under
70subsection (3) or subsection (4) or any calculation or initial
71allocation.
72     4.  The department shall adopt all or any part of a basin
73management action plan and any amendment to such plan by
74secretarial order pursuant to chapter 120 to implement the
75provisions of this section.
76     5.  The basin management action plan must shall include
77milestones for implementation and water quality improvement, and
78an associated water quality monitoring component sufficient to
79evaluate whether reasonable progress in pollutant load
80reductions is being achieved over time. An assessment of
81progress toward these milestones shall be conducted every 5
82years, and revisions to the plan shall be made as appropriate.
83Revisions to the basin management action plan shall be made by
84the department in cooperation with basin stakeholders. Revisions
85to the management strategies required for nonpoint sources must
86shall follow the procedures set forth in subparagraph (c)4.
87Revised basin management action plans must shall be adopted
88pursuant to subparagraph 4.
89     6.  In accordance with procedures adopted by rule under
90paragraph (9)(c), basin management action plans may allow point
91or nonpoint sources that will achieve greater pollutant
92reductions than required by an adopted total maximum load or
93wasteload allocation to generate, register, and trade water
94quality credits for the excess reductions to enable other
95sources to achieve their allocation; however, the generation of
96water quality credits does not remove the obligation of a source
97or activity to meet applicable technology requirements or
98adopted best management practices. Such plans must allow trading
99between NPDES permittees, and trading that may or may not
100involve NPDES permittees, where the generation or use of the
101credits involve an entity or activity not subject to department
102water discharge permits whose owner voluntarily elects to obtain
103department authorization for the generation and sale of credits.  
104     7.  The provisions of the department's rule relating to the
105equitable abatement of pollutants into surface waters shall not
106be applied to water bodies or water body segments for which a
107basin management plan that takes into account future new or
108expanded activities or discharges has been adopted under this
109section.
110     (b)  Total maximum daily load implementation.--
111     1.  The department shall be the lead agency in coordinating
112the implementation of the total maximum daily loads through
113existing water quality protection programs. Application of a
114total maximum daily load by a water management district must
115shall be consistent with this section and shall not require the
116issuance of an order or a separate action pursuant to s.
117120.536(1) or s. 120.54 for the adoption of the calculation and
118allocation previously established by the department. Such
119programs may include, but are not limited to:
120     a.  Permitting and other existing regulatory programs,
121including water-quality-based effluent limitations;
122     b.  Nonregulatory and incentive-based programs, including
123best management practices, cost sharing, waste minimization,
124pollution prevention, agreements established pursuant to s.
125403.061(21), and public education;
126     c.  Other water quality management and restoration
127activities, for example surface water improvement and management
128plans approved by water management districts or basin management
129action plans developed pursuant to this subsection;
130     d.  Trading of water quality credits Pollutant trading or
131other equitable economically based agreements;
132     e.  Public works including capital facilities; or
133     f.  Land acquisition.
134     2.  For a basin management action plan adopted pursuant to
135paragraph (a) subparagraph (a)4., any management strategies and
136pollutant reduction requirements associated with a pollutant of
137concern for which a total maximum daily load has been developed,
138including effluent limits set forth for a discharger subject to
139NPDES permitting, if any, must shall be included in a timely
140manner in subsequent NPDES permits or permit modifications for
141that discharger. The department shall not impose limits or
142conditions implementing an adopted total maximum daily load in
143an NPDES permit until the permit expires, the discharge is
144modified, or the permit is reopened pursuant to an adopted basin
145management action plan, unless required by federal law or
146regulation.
147     a.  Absent a detailed allocation, total maximum daily loads
148shall be implemented through NPDES permit conditions that
149provide for afford a compliance schedule. In such instances, a
150facility's NPDES permit must shall allow time for the issuance
151of an order adopting the basin management action plan. The time
152allowed for the issuance of an order adopting the plan shall not
153exceed 5 years. Upon issuance of an order adopting the plan, the
154permit must shall be reopened or renewed, as necessary, and
155permit conditions consistent with the plan must shall be
156established. Notwithstanding the other provisions of this
157subparagraph, upon request by a NPDES permittee, the department
158as part of a permit issuance, renewal, or modification may
159establish individual allocations prior to the adoption of a
160basin management action plan.
161     b.  For holders of NPDES municipal separate storm sewer
162system permits and other stormwater sources, implementation of a
163total maximum daily load or basin management action must plan
164shall be achieved, to the maximum extent practicable, through
165the use of best management practices or other management
166measures.
167     c.  The basin management action plan does not relieve the
168discharger from any requirement to obtain, renew, or modify an
169NPDES permit or to abide by other requirements of the permit.
170     d.  Management strategies set forth in a basin management
171action plan to be implemented by a discharger subject to
172permitting by the department must shall be completed pursuant to
173the schedule set forth in the basin management action plan. This
174implementation schedule may extend beyond the 5-year term of an
175NPDES permit.
176     e.  Management strategies and pollution reduction
177requirements set forth in a basin management action plan for a
178specific pollutant of concern shall not be subject to challenge
179under chapter 120 at the time they are incorporated, in an
180identical form, into a subsequent NPDES permit or permit
181modification.
182     f.  For nonagricultural pollutant sources not subject to
183NPDES permitting but permitted pursuant to other state,
184regional, or local water quality programs, the pollutant
185reduction actions adopted in a basin management action plan
186shall be implemented to the maximum extent practicable as part
187of those permitting programs.
188     g.  A nonpoint source discharger included in a basin
189management action plan must shall demonstrate compliance with
190the pollutant reductions established under pursuant to
191subsection (6) by either implementing the appropriate best
192management practices established pursuant to paragraph (c) or
193conducting water quality monitoring prescribed by the department
194or a water management district. A nonpoint source discharger
195may, in accordance with department rules, supplement the
196implementation of best-management practices with water quality
197credit trades in order to demonstrate compliance with the
198pollutant reductions established under subsection (6).
199     h.  A nonpoint source discharger included in a basin
200management action plan may be subject to enforcement action by
201the department or a water management district based upon a
202failure to implement the responsibilities set forth in sub-
203subparagraph g.
204     i.  A landowner, discharger, or other responsible person
205who is implementing applicable management strategies specified
206in an adopted basin management action plan shall not be required
207by permit, enforcement action, or otherwise to implement
208additional management strategies to reduce pollutant loads to
209attain the pollutant reductions established pursuant to
210subsection (6) and shall be deemed to be in compliance with this
211section. This subparagraph does not limit the authority of the
212department to amend a basin management action plan as specified
213in subparagraph (a)5.
214     (c)  Best management practices.--
215     1.  The department, in cooperation with the water
216management districts and other interested parties, as
217appropriate, may develop suitable interim measures, best
218management practices, or other measures necessary to achieve the
219level of pollution reduction established by the department for
220nonagricultural nonpoint pollutant sources in allocations
221developed pursuant to subsection (6) and this subsection. These
222practices and measures may be adopted by rule by the department
223and the water management districts pursuant to ss. 120.536(1)
224and 120.54, and, where adopted by rule, shall be implemented by
225those parties responsible for nonagricultural nonpoint source
226pollution.
227     2.  The Department of Agriculture and Consumer Services may
228develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
229suitable interim measures, best management practices, or other
230measures necessary to achieve the level of pollution reduction
231established by the department for agricultural pollutant sources
232in allocations developed pursuant to subsection (6) and this
233subsection or for programs implemented pursuant to paragraph
234(13)(b) (11)(b). These practices and measures may be implemented
235by those parties responsible for agricultural pollutant sources
236and the department, the water management districts, and the
237Department of Agriculture and Consumer Services shall assist
238with implementation. In the process of developing and adopting
239rules for interim measures, best management practices, or other
240measures, the Department of Agriculture and Consumer Services
241shall consult with the department, the Department of Health, the
242water management districts, representatives from affected
243farming groups, and environmental group representatives. Such
244rules must shall also incorporate provisions for a notice of
245intent to implement the practices and a system to assure the
246implementation of the practices, including recordkeeping
247requirements.
248     3.  Where interim measures, best management practices, or
249other measures are adopted by rule, the effectiveness of such
250practices in achieving the levels of pollution reduction
251established in allocations developed by the department pursuant
252to subsection (6) and this subsection or in programs implemented
253pursuant to paragraph (13)(b) must (11)(b) shall be verified at
254representative sites by the department. The department shall use
255best professional judgment in making the initial verification
256that the best management practices are reasonably expected to be
257effective and, where applicable, must shall notify the
258appropriate water management district or the Department of
259Agriculture and Consumer Services of its initial verification
260before prior to the adoption of a rule proposed pursuant to this
261paragraph. Implementation, in accordance with rules adopted
262under this paragraph, of practices that have been initially
263verified to be effective, or verified to be effective by
264monitoring at representative sites, by the department, shall
265provide a presumption of compliance with state water quality
266standards and release from the provisions of s. 376.307(5) for
267those pollutants addressed by the practices, and the department
268is not authorized to institute proceedings against the owner of
269the source of pollution to recover costs or damages associated
270with the contamination of surface water or groundwater caused by
271those pollutants. Research projects funded by the department, a
272water management district, or the Department of Agriculture and
273Consumer Services to develop or demonstrate interim measures or
274best management practices shall be granted a presumption of
275compliance with state water quality standards and a release from
276the provisions of s. 376.307(5). The presumption of compliance
277and release is shall be limited to the research site and only
278for those pollutants addressed by the interim measures or best
279management practices. Eligibility for the presumption of
280compliance and release is shall be limited to research projects
281on sites where the owner or operator of the research site and
282the department, a water management district, or the Department
283of Agriculture and Consumer Services have entered into a
284contract or other agreement that, at a minimum, specifies the
285research objectives, the cost-share responsibilities of the
286parties, and a schedule that details the beginning and ending
287dates of the project.
288     4.  Where water quality problems are demonstrated, despite
289the appropriate implementation, operation, and maintenance of
290best management practices and other measures required by
291according to rules adopted under this paragraph, the department,
292a water management district, or the Department of Agriculture
293and Consumer Services, in consultation with the department,
294shall institute a reevaluation of the best management practice
295or other measure. Should the reevaluation determine that the
296best management practice or other measure requires modification,
297the department, a water management district, or the Department
298of Agriculture and Consumer Services, as appropriate, shall
299revise the rule to require implementation of the modified
300practice within a reasonable time period as specified in the
301rule.
302     5.  Agricultural records relating to processes or methods
303of production, costs of production, profits, or other financial
304information held by the Department of Agriculture and Consumer
305Services pursuant to subparagraphs 3. and 4. or pursuant to any
306rule adopted pursuant to subparagraph 2. are confidential and
307exempt from s. 119.07(1) and s. 24(a), Art. I of the State
308Constitution. Upon request, records made confidential and exempt
309pursuant to this subparagraph shall be released to the
310department or any water management district provided that the
311confidentiality specified by this subparagraph for such records
312is maintained.
313     6.  The provisions of subparagraphs 1. and 2. do shall not
314preclude the department or water management district from
315requiring compliance with water quality standards or with
316current best management practice requirements set forth in any
317applicable regulatory program authorized by law for the purpose
318of protecting water quality. Additionally, subparagraphs 1. and
3192. are applicable only to the extent that they do not conflict
320with any rules adopted by the department that are necessary to
321maintain a federally delegated or approved program.
322     (8)  WATER QUALITY CREDIT TRADING.--
323     (a)  Water quality credit trading must be consistent with
324federal law and regulation.
325     (b)  Water quality credit trading must be implemented
326through permits, including water quality credit trading permits,
327other authorizations, or other legally binding agreements as
328established by department rule.
329     (c)  The department shall establish the pollutant load-
330reduction value of water quality credits and shall be
331responsible for authorizing their use.
332     (d)  A person that acquires water quality credits ("buyer")
333shall timely submit to the department an affidavit, signed by
334the buyer and the credit generator ("seller"), disclosing the
335term of acquisition, number of credits, unit credit price paid,
336and any state funding received for the facilities or activities
337that generate the credits. The department shall not participate
338in the establishment of credit prices.
339     (e)  Sellers of water quality credits are responsible for
340achieving the load reductions on which the credits are based and
341complying with the terms of the department authorization and any
342trading agreements into which they may have entered.
343     (f)  Buyers of water quality credits are responsible for
344complying with the terms of the department water discharge
345permit.
346     (g)  The department shall take appropriate action to
347address the failure of a credit seller to fulfill its
348obligations, including, as necessary, deeming the seller's
349credits invalid if the seller cannot achieve the load reductions
350on which the credits were based in a reasonable time. If the
351department determines duly acquired water quality credits to be
352invalid, in whole or in part, thereby causing the credit buyer
353to be unable to timely meet its pollutant-reduction obligations
354under this section, the department shall issue an order
355establishing the actions required of the buyer to meet its
356obligations by alternative means and a reasonable schedule for
357completing the actions. The invalidation of credits shall not
358itself constitute a violation of the buyer's water discharge
359permit.
360     (9)(8)  RULES.--The department is authorized to adopt rules
361pursuant to ss. 120.536(1) and 120.54 for:
362     (a)  Delisting water bodies or water body segments from the
363list developed under subsection (4) pursuant to the guidance
364under subsection (5).;
365     (b)  Administering Administration of funds to implement the
366total maximum daily load and basin management action planning
367programs.;
368     (c)  Water quality credit Procedures for pollutant trading
369among the pollutant sources to a water body or water body
370segment. By September 1, 2008, rulemaking must be initiated
371which provides for the following:, including a mechanism for the
372issuance and tracking of pollutant credits. Such procedures may
373be implemented through permits or other authorizations and must
374be legally binding. Prior to adopting rules for pollutant
375trading under this paragraph, and no later than November 30,
3762006, the Department of Environmental Protection shall submit a
377report to the Governor, the President of the Senate, and the
378Speaker of the House of Representatives containing
379recommendations on such rules, including the proposed basis for
380equitable economically based agreements and the tracking and
381accounting of pollution credits or other similar mechanisms.
382Such recommendations shall be developed in cooperation with a
383technical advisory committee that includes experts in pollutant
384trading and representatives of potentially affected parties;
385     1.  The process to be used to determine how credits are
386generated, quantified, and validated.
387     2.  A publicly accessible water quality credit trading
388registry that tracks water quality credits, trading activities,
389and prices paid for credits.
390     3.  Limitations on the availability and use of water
391quality credits, including a list of eligible pollutants or
392parameters and minimum water quality requirements and, where
393appropriate, adjustments to reflect best-management practice
394performance uncertainties and water-segment-specific location
395factors.
396     4.  The timing and duration of credits and allowance for
397credit transferability.
398     5.  Mechanisms for determining and ensuring compliance with
399trading procedures, including recordkeeping, monitoring,
400reporting, and inspections.
401
402At the time of publication of the draft rules on water quality
403credit trading, the department shall submit a copy to the United
404States Environmental Protection Agency for review.
405     (d)  The total maximum daily load calculation in accordance
406with paragraph (6)(a) immediately upon the effective date of
407this act, for those eight water segments within Lake Okeechobee
408proper as submitted to the United States Environmental
409Protection Agency pursuant to subsection (2).;and
410     (e)  Implementation of other specific provisions.
411     (10)  Water quality credit trading shall be limited to the
412Lower St. Johns River Basin, as defined by the department, as a
413pilot project. The department may authorize water quality credit
414trading and establish specific requirements for trading in the
415adopted basin management action plan for the Lower St. Johns
416River Basin prior to the adoption of rules under paragraph
417(9)(c) in order to effectively implement the pilot project.
418Entities that participate in water quality credit trades shall
419timely report to the department the prices for credits, how the
420prices were determined, and any state funding received for the
421facilities or activities that generated the credits. The
422department shall not participate in the establishment of credit
423prices. No later than 24 months after adoption of the basin
424management action plan for the Lower St. Johns River, the
425department shall submit a report to the Governor, the President
426of the Senate, and the Speaker of the House of Representatives
427on the effectiveness of the pilot project, including the
428following information:
429     (a)  A summary of how water quality credit trading was
430implemented, including the number of pounds of pollutants
431traded.
432     (b)  A description of the individual trades and estimated
433pollutant load reductions that are expected to result from each
434trade.
435     (c)  A description of any conditions placed on trades.
436     (d)  Prices associated with the trades, as reported by the
437traders.
438     (e)  A recommendation as to whether other areas of the
439state would benefit from water quality credit trading and, if
440so, an identification of the statutory changes necessary to
441expand the scope of trading.
442     Section 2.  Paragraphs (e) and (f) of subsection (2) of
443section 403.088, Florida Statutes, are amended to read:
444     403.088  Water pollution operation permits; conditions.--
445     (2)
446     (e)  However, if the discharge will not meet permit
447conditions or applicable statutes and rules, the department may
448issue, renew, revise, or reissue the operation permit if:
449     1.  The applicant is constructing, installing, or placing
450into operation, or has submitted plans and a reasonable schedule
451for constructing, installing, or placing into operation, an
452approved pollution abatement facility or alternative waste
453disposal system;
454     2.  The applicant needs permission to pollute the waters
455within the state for a period of time necessary to complete
456research, planning, construction, installation, or operation of
457an approved and acceptable pollution abatement facility or
458alternative waste disposal system;
459     3.  There is no present, reasonable, alternative means of
460disposing of the waste other than by discharging it into the
461waters of the state;
462     4.  The granting of an operation permit will be in the
463public interest; or
464     5.  The discharge will not be unreasonably destructive to
465the quality of the receiving waters; or.
4666.  A water quality credit trade that meets the
467requirements of s. 403.067.
468     (f)  A permit issued, renewed, or reissued pursuant to
469paragraph (e) shall be accompanied by an order establishing a
470schedule for achieving compliance with all permit conditions.
471Such permit may require compliance with the accompanying order.
472     Section 3.  This act shall take effect July 1, 2008.
473
474
475
-----------------------------------------------------
476
T I T L E  A M E N D M E N T
477     Remove the entire title and insert:
478
A bill to be entitled
479An act relating to water pollution control; amending s. 403.067,
480F.S.; providing requirements for basin management action plans;
481allowing such plans to take into account the benefits of
482pollutant load reduction achieved by point or nonpoint sources,
483where appropriate; requiring that the Department of
484Environmental Protection adopt all or part of any such plan, or
485any amendment thereto, by secretarial order as provided by state
486law; providing that the provisions of the department's rule
487relating to the equitable abatement of pollutants into surface
488waters may not be applied to water bodies or water body segments
489for which a basin management plan that takes into account future
490or new expanded activities or discharges has been adopted;
491authorizing water quality protection programs to include the
492trading of water quality credits; authorizing the department to
493adopt rules related to the trading of water quality credits;
494requiring that such rulemaking include certain provisions;
495specifying that a water quality credit trading pilot project be
496limited to the Lower St. Johns River Basin as a pilot project;
497requiring that the department provide the Legislature with an
498annual report regarding the effectiveness of the pilot project;
499providing report requirements; providing that the department may
500authorize and establish specific requirements for water quality
501credit trading as part of the Lower St. Johns River Basin
502adopted basin management action plan; correcting cross-
503references to conform to changes made by the act; amending s.
504403.088, F.S.; authorizing the department to revise a water
505pollution operation permit under certain circumstances;
506authorizing the department to issue, renew, or reissue such a
507permit if a water quality credit trade meets the requirements of
508403.067, F.S.; requiring that revised permits be accompanied by
509an order establishing a schedule for achieving compliance with
510all permit conditions; providing an effective date.
511


CODING: Words stricken are deletions; words underlined are additions.