Florida Senate - 2012                             CS for SB 1086
       By the Committee on Environmental Preservation and Conservation;
       and Senator Garcia
       592-03010A-12                                         20121086c1
    1                        A bill to be entitled                      
    2         An act relating to reclaimed water; amending s.
    3         373.019, F.S.; defining the terms “reclaimed water”
    4         and “reclaimed water distribution system”; amending s.
    5         373.250, F.S.; providing legislative findings relating
    6         to the use of reclaimed water; providing that
    7         reclaimed water is an alternative water supply and
    8         eligible for such funding; authorizing specified
    9         contract provisions for the development of reclaimed
   10         water as an alternative water supply; prohibiting the
   11         exclusion of reclaimed water use from regional water
   12         supply planning; deleting a definition for the term
   13         “uncommitted”; providing for the determination of
   14         uncommitted reclaimed water capacity by certain
   15         utilities; prohibiting water management districts from
   16         requiring permits for the use of reclaimed water;
   17         authorizing permit conditions for certain surface
   18         water and groundwater sources; authorizing water
   19         management districts to require the use of reclaimed
   20         water under certain conditions; prohibiting water
   21         management districts from requiring or restricting
   22         services provided by reuse utilities; providing an
   23         exception; clarifying which permit applicants are
   24         required to submit certain information; requiring the
   25         Department of Environmental Protection and each water
   26         management district to initiate rulemaking to adopt
   27         specified revisions to the water resource
   28         implementation rule; revising applicability; providing
   29         for construction of the act; amending ss. 373.036,
   30         373.421, 403.813, and 556.102, F.S.; conforming cross
   31         references to changes made by the act; providing an
   32         effective date.
   34  Be It Enacted by the Legislature of the State of Florida:
   36         Section 1. Subsections (17) through (26) of section
   37  373.019, Florida Statutes, are renumbered as subsections (19)
   38  through (28), respectively, and new subsections (17) and (18)
   39  are added to that section to read:
   40         373.019 Definitions.—When appearing in this chapter or in
   41  any rule, regulation, or order adopted pursuant thereto, the
   42  term:
   43         (17) “Reclaimed water” means water that has received at
   44  least secondary treatment and basic disinfection and is reused
   45  after flowing out of a domestic wastewater treatment facility.
   46  Reclaimed water is not subject to regulation pursuant to s.
   47  373.175 or part II of this chapter until it has been discharged
   48  into waters as defined in s. 403.031(13).
   49         (18) “Reclaimed water distribution system” means a network
   50  of pipes, pumping facilities, storage facilities, and
   51  appurtenances designed to convey and distribute reclaimed water
   52  from one or more domestic wastewater treatment facilities to one
   53  or more users of reclaimed water.
   54         Section 2. Section 373.250, Florida Statutes, is amended to
   55  read:
   56         373.250 Reuse of reclaimed water.—
   57         (1)(a) The encouragement and promotion of water
   58  conservation and reuse of reclaimed water, as defined by the
   59  department and used in this chapter, are state objectives and
   60  considered to be in the public interest. The Legislature finds
   61  that the use of reclaimed water provided by domestic wastewater
   62  treatment plants permitted and operated under a reuse program
   63  approved by the department is environmentally acceptable and not
   64  a threat to public health and safety.
   65         (b) The Legislature recognizes that the interest of the
   66  state to sustain water resources for the future through the use
   67  of reclaimed water must be balanced with the need of reuse
   68  utilities to operate and manage reclaimed water systems in
   69  accordance with a variety and range of circumstances, including
   70  regulatory and financial considerations, which influence the
   71  development and operation of reclaimed water systems across the
   72  state.
   73         (2) Reclaimed water is an alternative water supply as
   74  defined in s. 373.019(1) and is eligible for alternative water
   75  supply funding. A contract for state or district funding
   76  assistance for the development of reclaimed water as an
   77  alternative water supply may include provisions listed under s.
   78  373.707(9). The use of reclaimed water may not be excluded from
   79  regional water supply planning under s. 373.709.
   80         (3)(2)(a) For purposes of this section, “uncommitted” means
   81  the average amount of reclaimed water produced during the three
   82  lowest-flow months minus the amount of reclaimed water that a
   83  reclaimed water provider is contractually obligated to provide
   84  to a customer or user.
   85         (b) Reclaimed water may be presumed available to a
   86  consumptive use permit applicant when a utility exists which
   87  provides reclaimed water, which has determined that it has
   88  uncommitted reclaimed water capacity, and which has distribution
   89  facilities, which are initially provided by the utility at its
   90  cost, to the site of the affected applicant’s proposed use.
   91         (b) A water management district may not require a permit
   92  for the use of reclaimed water. However, when a use includes
   93  surface water or groundwater, the permit for such sources may
   94  include conditions that govern the use of the permitted sources
   95  in relation to the feasibility or use of reclaimed water.
   96         (c) A water management district may require the use of
   97  reclaimed water in lieu of all or a portion of a proposed use of
   98  surface water or groundwater by an applicant when the use of
   99  uncommitted reclaimed water is available; is environmentally,
  100  economically, and technically feasible; and is of such quality
  101  and reliability as is necessary to the user. However, a water
  102  management district may neither specify any user to whom the
  103  reuse utility must provide reclaimed water nor restrict the use
  104  of reclaimed water provided by a reuse utility to a customer in
  105  a permit or, unless requested by the reuse utility, in a water
  106  shortage order or water shortage emergency order this paragraph
  107  does not authorize a water management district to require a
  108  provider of reclaimed water to redirect reclaimed water from one
  109  user to another or to provide uncommitted water to a specific
  110  user if such water is anticipated to be used by the provider, or
  111  a different user selected by the provider, within a reasonable
  112  amount of time.
  113         (d) The South Florida Water Management District shall
  114  require the use of reclaimed water made available by the
  115  elimination of wastewater ocean outfall discharges as provided
  116  for in s. 403.086(9) in lieu of surface water or groundwater
  117  when the use of uncommitted reclaimed water is available; is
  118  environmentally, economically, and technically feasible; and is
  119  of such quality and reliability as is necessary to the user.
  120  Such reclaimed water may also be required in lieu of other
  121  alternative sources. In determining whether or not to require
  122  such reclaimed water in lieu of other alternative sources, the
  123  water management district shall consider existing infrastructure
  124  investments in place or obligated to be constructed by an
  125  executed contract or similar binding agreement as of July 1,
  126  2011, for the development of other alternative sources.
  127         (4)(3) The water management district shall, in consultation
  128  with the department, adopt rules to implement this section. Such
  129  rules shall include, but not be limited to:
  130         (a) Provisions to permit use of water from other sources in
  131  emergency situations or if reclaimed water becomes unavailable,
  132  for the duration of the emergency or the unavailability of
  133  reclaimed water. These provisions shall also specify the method
  134  for establishing the quantity of water to be set aside for use
  135  in emergencies or when reclaimed water becomes unavailable. The
  136  amount set aside is subject to periodic review and revision. The
  137  methodology shall take into account the risk that reclaimed
  138  water may not be available in the future, the risk that other
  139  sources may be fully allocated to other uses in the future, the
  140  nature of the uses served with reclaimed water, the extent to
  141  which the applicant intends to rely upon reclaimed water, and
  142  the extent of economic harm which may result if other sources
  143  are not available to replace the reclaimed water. It is the
  144  intent of this paragraph to ensure that users of reclaimed water
  145  have the same access to ground or surface water and will
  146  otherwise be treated in the same manner as other users of the
  147  same class not relying on reclaimed water.
  148         (b) A water management district shall not adopt any rule
  149  which gives preference to users within any class of use
  150  established under s. 373.246 who do not use reclaimed water over
  151  users within the same class who use reclaimed water.
  152         (b)(c) Provisions to require permit applicants that are not
  153  reuse utilities to provide, as part of their reclaimed water
  154  feasibility evaluation for a nonpotable use, written
  155  documentation from a reuse utility addressing the availability
  156  of reclaimed water. This requirement shall apply when the
  157  applicant’s proposed use is within an area that is or may be
  158  served with reclaimed water by a reuse utility within a 5-year
  159  horizon, as established by the reuse utility and provided to the
  160  district. If the applicable reuse utility fails to respond or
  161  does not provide the information required under paragraph (c)
  162  (d) within 30 days after receipt of the request, the applicant
  163  shall provide to the district a copy of the written request and
  164  a statement that the utility failed to provide the requested
  165  information. The district is not required to adopt, by rule, the
  166  area where written documentation from a reuse utility is
  167  required, but the district shall publish the area, and any
  168  updates thereto, on the district’s website. This paragraph may
  169  not be construed to limit the ability of a district to require
  170  the use of reclaimed water or to limit a utility’s ability to
  171  plan reclaimed water infrastructure.
  172         (c)(d) Provisions specifying the content of the
  173  documentation required in paragraph (b) (c), including
  174  sufficient information regarding the availability and costs
  175  associated with the connection to and the use of reclaimed
  176  water, to facilitate the permit applicant’s reclaimed water
  177  feasibility evaluation.
  179  A water management district may not adopt any rule that gives
  180  preference to users within any class of use established under s.
  181  373.246 who do not use reclaimed water over users within the
  182  same class who use reclaimed water.
  183         (5)(a) No later than October 1, 2012, the department shall
  184  initiate rulemaking to adopt revisions to the water resource
  185  implementation rule, as defined in s. 373.019(23), which shall
  186  include:
  187         1. Criteria for the use of a proposed impact offset derived
  188  from the use of reclaimed water when a water management district
  189  evaluates an application for a consumptive use permit. As used
  190  in this subparagraph, the term “impact offset” means the use of
  191  reclaimed water to reduce or eliminate a harmful impact that has
  192  occurred or would otherwise occur as a result of other surface
  193  water or groundwater withdrawals.
  194         2. Criteria for the use of substitution credits where a
  195  water management district has adopted rules establishing
  196  withdrawal limits from a specified water resource within a
  197  defined geographic area. As used in this subparagraph, the term
  198  “substitution credit” means the use of reclaimed water to
  199  replace all or a portion of an existing permitted use of
  200  resource-limited surface water or groundwater, allowing a
  201  different user or use to initiate a withdrawal or increase its
  202  withdrawal from the same resource-limited surface water or
  203  groundwater source provided that the withdrawal creates no net
  204  adverse impact on the limited water resource or creates a net
  205  positive impact if required by water management district rule as
  206  part of a strategy to protect or recover a water resource.
  207         (b) Within 60 days after the final adoption by the
  208  department of the revisions to the water resource implementation
  209  rule required under paragraph (a), each water management
  210  district shall initiate rulemaking to incorporate those
  211  revisions by reference into the rules of the district.
  212         (6)(4) Reuse utilities and the applicable water management
  213  district or districts are encouraged to periodically coordinate
  214  and share information concerning the status of reclaimed water
  215  distribution system construction, the availability of reclaimed
  216  water supplies, and existing consumptive use permits in areas
  217  served by the reuse utility.
  218         (7)(5)Nothing in This section does not impair or limit the
  219  authority of shall impair a water management district district’s
  220  authority to plan for and regulate consumptive uses of water
  221  under this chapter or regulate the use of surface water or
  222  groundwater to supplement a reclaimed water system.
  223         (8)(6) This section applies to applications for new
  224  consumptive use permits and renewals and modifications of
  225  existing consumptive use permits.
  226         Section 3. This act does not:
  227         (1) Impair or limit the authority of the Department of
  228  Environmental Protection to regulate water quality, including
  229  reclaimed water, pursuant to chapter 403, Florida Statutes, or
  230  to require a reuse feasibility study pursuant to s. 403.064,
  231  Florida Statutes.
  232         (2) Impair or limit the authority of a water management
  233  district to conduct regional water supply planning pursuant
  234  chapter 373, Florida Statutes.
  235         (3) Affect any requirement that may be applicable to
  236  funding of alternative water supply development, including
  237  reclaimed water, pursuant to s. 373.707, Florida Statutes.
  238         (4) Affect or limit any applicable provisions regarding the
  239  setting of rates by public and private water utilities pursuant
  240  to chapter 153 or chapter 180, Florida Statutes, or s. 367.081,
  241  Florida Statutes.
  242         (5) Affect or impair the powers of the Governor under the
  243  State Constitution; general law, including, but not limited to,
  244  chapter 14, Florida Statutes; and police powers of the state to
  245  adopt and enforce emergency rules, regulations, and orders.
  246         Section 4. Paragraph (d) of subsection (1) of section
  247  373.036, Florida Statutes, is amended to read:
  248         373.036 Florida water plan; district water management
  249  plans.—
  250         (1) FLORIDA WATER PLAN.—In cooperation with the water
  251  management districts, regional water supply authorities, and
  252  others, the department shall develop the Florida water plan. The
  253  Florida water plan shall include, but not be limited to:
  254         (d) Goals, objectives, and guidance for the development and
  255  review of programs, rules, and plans relating to water
  256  resources, based on statutory policies and directives. The state
  257  water policy rule, renamed the water resource implementation
  258  rule pursuant to s. 373.019(25) 373.019(23), shall serve as this
  259  part of the plan. Amendments or additions to this part of the
  260  Florida water plan shall be adopted by the department as part of
  261  the water resource implementation rule. In accordance with s.
  262  373.114, the department shall review rules of the water
  263  management districts for consistency with this rule. Amendments
  264  to the water resource implementation rule must be adopted by the
  265  secretary of the department and be submitted to the President of
  266  the Senate and the Speaker of the House of Representatives
  267  within 7 days after publication in the Florida Administrative
  268  Weekly. Amendments shall not become effective until the
  269  conclusion of the next regular session of the Legislature
  270  following their adoption.
  271         Section 5. Subsection (1) of section 373.421, Florida
  272  Statutes, is amended to read:
  273         373.421 Delineation methods; formal determinations.—
  274         (1) The Environmental Regulation Commission shall adopt a
  275  unified statewide methodology for the delineation of the extent
  276  of wetlands as defined in s. 373.019(27) 373.019(25). This
  277  methodology shall consider regional differences in the types of
  278  soils and vegetation that may serve as indicators of the extent
  279  of wetlands. This methodology shall also include provisions for
  280  determining the extent of surface waters other than wetlands for
  281  the purposes of regulation under s. 373.414. This methodology
  282  shall not become effective until ratified by the Legislature.
  283  Subsequent to legislative ratification, the wetland definition
  284  in s. 373.019(27) 373.019(25) and the adopted wetland
  285  methodology shall be binding on the department, the water
  286  management districts, local governments, and any other
  287  governmental entities. Upon ratification of such wetland
  288  methodology, the Legislature preempts the authority of any water
  289  management district, state or regional agency, or local
  290  government to define wetlands or develop a delineation
  291  methodology to implement the definition and determines that the
  292  exclusive definition and delineation methodology for wetlands
  293  shall be that established pursuant to s. 373.019(27) 373.019(25)
  294  and this section. Upon such legislative ratification, any
  295  existing wetlands definition or wetland delineation methodology
  296  shall be superseded by the wetland definition and delineation
  297  methodology established pursuant to this chapter. Subsequent to
  298  legislative ratification, a delineation of the extent of a
  299  surface water or wetland by the department or a water management
  300  district, pursuant to a formal determination under subsection
  301  (2), or pursuant to a permit issued under this part in which the
  302  delineation was field-verified by the permitting agency and
  303  specifically approved in the permit, shall be binding on all
  304  other governmental entities for the duration of the formal
  305  determination or permit. All existing rules and methodologies of
  306  the department, the water management districts, and local
  307  governments, regarding surface water or wetland definition and
  308  delineation shall remain in full force and effect until the
  309  common methodology rule becomes effective. However, this shall
  310  not be construed to limit any power of the department, the water
  311  management districts, and local governments to amend or adopt a
  312  surface water or wetland definition or delineation methodology
  313  until the common methodology rule becomes effective.
  314         Section 6. Paragraphs (r) and (u) of subsection (1) of
  315  section 403.813, Florida Statutes, are amended to read:
  316         403.813 Permits issued at district centers; exceptions.—
  317         (1) A permit is not required under this chapter, chapter
  318  373, chapter 61-691, Laws of Florida, or chapter 25214 or
  319  chapter 25270, 1949, Laws of Florida, for activities associated
  320  with the following types of projects; however, except as
  321  otherwise provided in this subsection, nothing in this
  322  subsection relieves an applicant from any requirement to obtain
  323  permission to use or occupy lands owned by the Board of Trustees
  324  of the Internal Improvement Trust Fund or any water management
  325  district in its governmental or proprietary capacity or from
  326  complying with applicable local pollution control programs
  327  authorized under this chapter or other requirements of county
  328  and municipal governments:
  329         (r) The removal of aquatic plants, the removal of tussocks,
  330  the associated replanting of indigenous aquatic plants, and the
  331  associated removal from lakes of organic detrital material when
  332  such planting or removal is performed and authorized by permit
  333  or exemption granted under s. 369.20 or s. 369.25, provided
  334  that:
  335         1. Organic detrital material that exists on the surface of
  336  natural mineral substrate shall be allowed to be removed to a
  337  depth of 3 feet or to the natural mineral substrate, whichever
  338  is less;
  339         2. All material removed pursuant to this paragraph shall be
  340  deposited in an upland site in a manner that will prevent the
  341  reintroduction of the material into waters in the state except
  342  when spoil material is permitted to be used to create wildlife
  343  islands in freshwater bodies of the state when a governmental
  344  entity is permitted pursuant to s. 369.20 to create such islands
  345  as a part of a restoration or enhancement project;
  346         3. All activities are performed in a manner consistent with
  347  state water quality standards; and
  348         4. No activities under this exemption are conducted in
  349  wetland areas, as defined in by s. 373.019(27) 373.019(25),
  350  which are supported by a natural soil as shown in applicable
  351  United States Department of Agriculture county soil surveys,
  352  except when a governmental entity is permitted pursuant to s.
  353  369.20 to conduct such activities as a part of a restoration or
  354  enhancement project.
  356  The department may not adopt implementing rules for this
  357  paragraph, notwithstanding any other provision of law.
  358         (u) Notwithstanding any provision to the contrary in this
  359  subsection, a permit or other authorization under chapter 253,
  360  chapter 369, chapter 373, or this chapter is not required for an
  361  individual residential property owner for the removal of organic
  362  detrital material from freshwater rivers or lakes that have a
  363  natural sand or rocky substrate and that are not Aquatic
  364  Preserves or for the associated removal and replanting of
  365  aquatic vegetation for the purpose of environmental enhancement,
  366  providing that:
  367         1. No activities under this exemption are conducted in
  368  wetland areas, as defined in by s. 373.019(27) 373.019(25),
  369  which are supported by a natural soil as shown in applicable
  370  United States Department of Agriculture county soil surveys.
  371         2. No filling or peat mining is allowed.
  372         3. No removal of native wetland trees, including, but not
  373  limited to, ash, bay, cypress, gum, maple, or tupelo, occurs.
  374         4. When removing organic detrital material, no portion of
  375  the underlying natural mineral substrate or rocky substrate is
  376  removed.
  377         5. Organic detrital material and plant material removed is
  378  deposited in an upland site in a manner that will not cause
  379  water quality violations.
  380         6. All activities are conducted in such a manner, and with
  381  appropriate turbidity controls, so as to prevent any water
  382  quality violations outside the immediate work area.
  383         7. Replanting with a variety of aquatic plants native to
  384  the state shall occur in a minimum of 25 percent of the
  385  preexisting vegetated areas where organic detrital material is
  386  removed, except for areas where the material is removed to bare
  387  rocky substrate; however, an area may be maintained clear of
  388  vegetation as an access corridor. The access corridor width may
  389  not exceed 50 percent of the property owner’s frontage or 50
  390  feet, whichever is less, and may be a sufficient length
  391  waterward to create a corridor to allow access for a boat or
  392  swimmer to reach open water. Replanting must be at a minimum
  393  density of 2 feet on center and be completed within 90 days
  394  after removal of existing aquatic vegetation, except that under
  395  dewatered conditions replanting must be completed within 90 days
  396  after reflooding. The area to be replanted must extend waterward
  397  from the ordinary high water line to a point where normal water
  398  depth would be 3 feet or the preexisting vegetation line,
  399  whichever is less. Individuals are required to make a reasonable
  400  effort to maintain planting density for a period of 6 months
  401  after replanting is complete, and the plants, including
  402  naturally recruited native aquatic plants, must be allowed to
  403  expand and fill in the revegetation area. Native aquatic plants
  404  to be used for revegetation must be salvaged from the
  405  enhancement project site or obtained from an aquatic plant
  406  nursery regulated by the Department of Agriculture and Consumer
  407  Services. Plants that are not native to the state may not be
  408  used for replanting.
  409         8. No activity occurs any farther than 100 feet waterward
  410  of the ordinary high water line, and all activities must be
  411  designed and conducted in a manner that will not unreasonably
  412  restrict or infringe upon the riparian rights of adjacent upland
  413  riparian owners.
  414         9. The person seeking this exemption notifies the
  415  applicable department district office in writing at least 30
  416  days before commencing work and allows the department to conduct
  417  a preconstruction site inspection. Notice must include an
  418  organic-detrital-material removal and disposal plan and, if
  419  applicable, a vegetation-removal and revegetation plan.
  420         10. The department is provided written certification of
  421  compliance with the terms and conditions of this paragraph
  422  within 30 days after completion of any activity occurring under
  423  this exemption.
  424         Section 7. Subsection (6) of section 556.102, Florida
  425  Statutes, is amended to read:
  426         556.102 Definitions.—As used in this act:
  427         (6) “Excavate” or “excavation” means any manmade cut,
  428  cavity, trench, or depression in the earth’s surface, formed by
  429  removal of earth, intended to change the grade or level of land,
  430  or intended to penetrate or disturb the surface of the earth,
  431  including land beneath the waters of the state, as defined in s.
  432  373.019(22) 373.019(20), and the term includes pipe bursting and
  433  directional drilling or boring from one point to another point
  434  beneath the surface of the earth, or other trenchless
  435  technologies.
  436         Section 8. This act shall take effect July 1, 2012.