Senate Bill sb0678e2

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    CS for SB 678                                 Second Engrossed



  1                      A bill to be entitled

  2         An act relating to pollution reduction;

  3         amending s. 403.067, F.S.; authorizing the

  4         development of interim measures or

  5         best-management practices for specified water

  6         bodies or segments for which total maximum

  7         daily loads or allocations have not yet been

  8         established; amending s. 403.121, F.S.;

  9         providing that a professional engineer is not

10         the agent of an owner or tenant for purposes of

11         enforcing penalties for unpermitted dredging or

12         filling or mangrove trimming; amending s.

13         373.4595, F.S.; providing eligibility

14         requirements for available grants from

15         coordinating agencies; providing additional

16         requirements for land application of domestic

17         wastewater residuals and septage after a

18         certain date; providing penalties for

19         violations; amending s. 403.08725, F.S.;

20         extending the time limit for approval by the

21         United States Environmental Protection Agency

22         of this section as being in compliance with

23         specified federal requirements; providing an

24         effective date.

25

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

27

28         Section 1.  Subsection (11) of section 403.067, Florida

29  Statutes, is amended to read:

30         403.067  Establishment and implementation of total

31  maximum daily loads.--


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    CS for SB 678                                 Second Engrossed



  1         (11)  IMPLEMENTATION OF ADDITIONAL PROGRAMS.--

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

  3  legislative approval, any additional regulatory authority

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

  5  130, if such implementation would result in water quality

  6  discharge regulation of activities not currently subject to

  7  regulation.

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

  9  other measures may be developed and voluntarily implemented

10  pursuant to paragraph (7)(c) or paragraph (7)(d) for any water

11  body or segment for which a total maximum daily load or

12  allocation has not been established. The implementation of

13  such pollution control programs may be considered by the

14  department in the determination made pursuant to subsection

15  (4).

16         Section 2.  Paragraphs (c) and (d) of subsection (3) of

17  section 403.121, Florida Statutes, are amended to read:

18         403.121  Enforcement; procedure; remedies.--The

19  department shall have the following judicial and

20  administrative remedies available to it for violations of this

21  chapter, as specified in s. 403.161(1).

22         (3)  Except for violations involving hazardous wastes,

23  asbestos, or underground injection, administrative penalties

24  must be calculated according to the following schedule:

25         (c)  For a dredge and fill or stormwater violation, the

26  department shall assess a penalty of $1,000 for unpermitted or

27  unauthorized dredging or filling or unauthorized construction

28  of a stormwater management system against the person or

29  persons responsible for the illegal dredging or filling, or

30  unauthorized construction of a stormwater management system

31  plus $2,000 if the dredging or filling occurs in an aquatic


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    CS for SB 678                                 Second Engrossed



  1  preserve, Outstanding Florida Water, conservation easement, or

  2  Class I or Class II surface water, plus $1,000 if the area

  3  dredged or filled is greater than one-quarter acre but less

  4  than or equal to one-half acre, and plus $1,000 if the area

  5  dredged or filled is greater than one-half acre but less than

  6  or equal to one acre. The administrative penalty schedule

  7  shall not apply to a dredge and fill violation if the area

  8  dredged or filled exceeds one acre. The department retains the

  9  authority to seek the judicial imposition of civil penalties

10  for all dredge and fill violations involving more than one

11  acre. The department shall assess a penalty of $3,000 for the

12  failure to complete required mitigation, failure to record a

13  required conservation easement, or for a water quality

14  violation resulting from dredging or filling activities,

15  stormwater construction activities or failure of a stormwater

16  treatment facility. For stormwater management systems serving

17  less than 5 acres, the department shall assess a penalty of

18  $2,000 for the failure to properly or timely construct a

19  stormwater management system. In addition to the penalties

20  authorized in this subsection, the department shall assess a

21  penalty of $5,000 per violation against the contractor or

22  agent of the owner or tenant that conducts unpermitted or

23  unauthorized dredging or filling. For purposes of this

24  paragraph, the preparation or signing of a permit application

25  by a person currently licensed under chapter 471 to practice

26  as a professional engineer shall not make that person an agent

27  of the owner or tenant.

28         (d)  For mangrove trimming or alteration violations,

29  the department shall assess a penalty of $5,000 per violation

30  against the contractor or agent of the owner or tenant that

31  conducts mangrove trimming or alteration without a permit as


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    CS for SB 678                                 Second Engrossed



  1  required by s. 403.9328. For purposes of this paragraph, the

  2  preparation or signing of a permit application by a person

  3  currently licensed under chapter 471 to practice as a

  4  professional engineer shall not make that person an agent of

  5  the owner or tenant.

  6         Section 3.  Paragraph (c) of subsection (3) of section

  7  373.4595, Florida Statutes, is amended to read:

  8         373.4595  Lake Okeechobee Protection Program.--

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

10  program for Lake Okeechobee that achieves phosphorus load

11  reductions for Lake Okeechobee shall be immediately

12  implemented as specified in this subsection. The program shall

13  address the reduction of phosphorus loading to the lake from

14  both internal and external sources. Phosphorus load reductions

15  shall be achieved through a phased program of implementation.

16  Initial implementation actions shall be technology-based,

17  based upon a consideration of both the availability of

18  appropriate technology and the cost of such technology, and

19  shall include phosphorus reduction measures at both the source

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

21  reductions shall be based upon the district's Technical

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

23  subsequent phases of phosphorus load reductions based upon the

24  total maximum daily loads established in accordance with s.

25  403.067. In the development and administration of the Lake

26  Okeechobee Protection Program, the coordinating agencies shall

27  maximize opportunities provided by federal cost-sharing

28  programs and opportunities for partnerships with the private

29  sector.

30         (c)  Lake Okeechobee Watershed Phosphorus Control

31  Program.--The Lake Okeechobee Watershed Phosphorus Control


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    CS for SB 678                                 Second Engrossed



  1  Program is designed to be a multifaceted approach to reducing

  2  phosphorus loads by improving the management of phosphorus

  3  sources within the Lake Okeechobee watershed through continued

  4  implementation of existing regulations and best management

  5  practices, development and implementation of improved best

  6  management practices, improvement and restoration of the

  7  hydrologic function of natural and managed systems, and

  8  utilization of alternative technologies for nutrient

  9  reduction. The coordinating agencies shall facilitate the

10  application of federal programs that offer opportunities for

11  water quality treatment, including preservation, restoration,

12  or creation of wetlands on agricultural lands.

13         1.  Agricultural nonpoint source best management

14  practices, developed in accordance with s. 403.067 and

15  designed to achieve the objectives of the Lake Okeechobee

16  Protection Program, shall be implemented on an expedited

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

18  develop an interagency agreement pursuant to ss. 373.046 and

19  373.406(5) that assures the development of best management

20  practices that complement existing regulatory programs and

21  specifies how those best management practices are implemented

22  and verified. The interagency agreement shall address measures

23  to be taken by the coordinating agencies during any best

24  management practice reevaluation performed pursuant to

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

26  judgment in making the initial determination of best

27  management practice effectiveness.

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

29  2000, the Department of Agriculture and Consumer Services, in

30  consultation with the department, the district, and affected

31  parties, shall initiate rule development for interim measures,


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    CS for SB 678                                 Second Engrossed



  1  best management practices, conservation plans, nutrient

  2  management plans, or other measures necessary for Lake

  3  Okeechobee phosphorus load reduction. The rule shall include

  4  thresholds for requiring conservation and nutrient management

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

  6  of agricultural nonpoint source best management practices

  7  shall initially focus on those priority basins listed in

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

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

10  and affected parties, shall conduct an ongoing program for

11  improvement of existing and development of new interim

12  measures or best management practices for the purpose of

13  adoption of such practices by rule.

14         b.  Where agricultural nonpoint source best management

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

16  Department of Agriculture and Consumer Services, the owner or

17  operator of an agricultural nonpoint source addressed by such

18  rule shall either implement interim measures or best

19  management practices or demonstrate compliance with the

20  district's WOD program by conducting monitoring prescribed by

21  the department or the district. Owners or operators of

22  agricultural nonpoint sources who implement interim measures

23  or best management practices adopted by rule of the Department

24  of Agriculture and Consumer Services shall be subject to the

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

26  Consumer Services, in cooperation with the department and the

27  district, shall provide technical and financial assistance for

28  implementation of agricultural best management practices,

29  subject to the availability of funds.

30

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    CS for SB 678                                 Second Engrossed



  1         c.  The district or department shall conduct monitoring

  2  at representative sites to verify the effectiveness of

  3  agricultural nonpoint source best management practices.

  4         d.  Where water quality problems are detected for

  5  agricultural nonpoint sources despite the appropriate

  6  implementation of adopted best management practices, the

  7  Department of Agriculture and Consumer Services, in

  8  consultation with the other coordinating agencies and affected

  9  parties, shall institute a reevaluation of the best management

10  practices and make appropriate changes to the rule adopting

11  best management practices.

12         2.  Nonagricultural nonpoint source best management

13  practices, developed in accordance with s. 403.067 and

14  designed to achieve the objectives of the Lake Okeechobee

15  Protection Program, shall be implemented on an expedited

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

17  develop an interagency agreement pursuant to ss. 373.046 and

18  373.406(5) that assures the development of best management

19  practices that complement existing regulatory programs and

20  specifies how those best management practices are implemented

21  and verified. The interagency agreement shall address measures

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

23  management practice reevaluation performed pursuant to

24  sub-subparagraph d.

25         a.  The department and the district are directed to

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

27  Agricultural Sciences to develop appropriate nutrient

28  application rates for all nonagricultural soil amendments in

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

30  2001, the department, in consultation with the district and

31  affected parties, shall develop interim measures, best


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    CS for SB 678                                 Second Engrossed



  1  management practices, or other measures necessary for Lake

  2  Okeechobee phosphorus load reduction. Development of

  3  nonagricultural nonpoint source best management practices

  4  shall initially focus on those priority basins listed in

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

  6  parties shall conduct an ongoing program for improvement of

  7  existing and development of new interim measures or best

  8  management practices. The district shall adopt

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

10  for nonagricultural nonpoint sources of phosphorus.

11         b.  Where nonagricultural nonpoint source best

12  management practices or interim measures have been developed

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

14  operator of a nonagricultural nonpoint source shall implement

15  interim measures or best management practices and be subject

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

17  district shall provide technical and financial assistance for

18  implementation of nonagricultural nonpoint source best

19  management practices, subject to the availability of funds.

20         c.  The district or the department shall conduct

21  monitoring at representative sites to verify the effectiveness

22  of nonagricultural nonpoint source best management practices.

23         d.  Where water quality problems are detected for

24  nonagricultural nonpoint sources despite the appropriate

25  implementation of adopted best management practices, the

26  department and the district shall institute a reevaluation of

27  the best management practices.

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

29  preclude the department or the district from requiring

30  compliance with water quality standards or with current best

31  management practices requirements set forth in any applicable


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    CS for SB 678                                 Second Engrossed



  1  regulatory program authorized by law for the purpose of

  2  protecting water quality. Additionally, subparagraphs 1. and

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

  4  with any rules promulgated by the department that are

  5  necessary to maintain a federally delegated or approved

  6  program.

  7         4.  Projects which reduce the phosphorus load

  8  originating from domestic wastewater systems within the Lake

  9  Okeechobee watershed shall be given funding priority in the

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

11  department shall coordinate and provide assistance to those

12  local governments seeking financial assistance for such

13  priority projects.

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

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

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

17  following methods:  restoring the natural hydrology of the

18  basin, restoring wildlife habitat or impacted wetlands,

19  reducing peak flows after storm events, increasing aquifer

20  recharge, or protecting range and timberland from conversion

21  to development are eligible for grants available under this

22  section from the coordinating agencies. For projects of

23  otherwise equal priority, funding priority will be given to

24  those projects that make best use of the methods outlined

25  above that involve public-private partnerships or that obtain

26  federal match money. Grant applications may be submitted by

27  any person or tribal entity, and eligible projects may

28  include, but are not limited to, the purchase of conservation

29  and flowage easements, hydrologic restoration of wetlands,

30  creating treatment wetlands, development of a management plan

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    CS for SB 678                                 Second Engrossed



  1  for natural resources, and financial support to implement a

  2  management plan.

  3         6.a.5.a.  The department shall require all entities

  4  disposing of domestic wastewater residuals within the Lake

  5  Okeechobee watershed to develop and submit to the department

  6  by July 1, 2001, an agricultural use plan that limits

  7  applications based upon phosphorus loading. By July 1, 2005,

  8  phosphorus concentrations loading originating from these

  9  application sites shall not exceed the limits established in

10  the district's WOD program.

11         b.  Private and government-owned utilities within

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

13  River, Okeechobee, Highlands, Hendry, and Glades counties that

14  dispose of wastewater residual sludge from utility operations

15  and septic removal by land spreading in the Lake Okeechobee

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

17  wastewater residual treatment and disposal if such disposal

18  and treatment is done by approved alternative treatment

19  methodology at a facility located within the areas designated

20  by the Governor as rural areas of critical economic concern

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

22  environmental protection disposal fee above the present sewer

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

24  rate to customers, notwithstanding provisions to the contrary

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

26  commission or its designated assignee in the county in which

27  the alternative method treatment facility is located. The fee

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

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

30  Upon request by an affected county commission, the Florida

31  Public Service Commission will provide assistance in


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    CS for SB 678                                 Second Engrossed



  1  establishing the fee. Further, for utilities and utility

  2  authorities that use the additional line item environmental

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

  4  rate increase under the rules of the Public Service Commission

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

  6  provisions of this section may immediately include in their

  7  sewer invoicing the new environmental protection disposal fee.

  8  Proceeds from this environmental protection disposal fee shall

  9  be used for treatment and disposal of wastewater residuals,

10  including any treatment technology that helps reduce the

11  volume of residuals that require final disposal, but such

12  proceeds shall not be used for transportation or shipment

13  costs for disposal or any costs relating to the land

14  application of residuals in the Lake Okeechobee watershed.

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

16  Florida Public Service Commission or the county commission

17  through the services of an independent auditor shall perform a

18  financial audit of all facilities receiving compensation from

19  an environmental protection disposal fee. The Florida Public

20  Service Commission or the county commission through the

21  services of an independent auditor shall also perform an audit

22  of the methodology used in establishing the environmental

23  protection disposal fee. The Florida Public Service Commission

24  or the county commission shall, within 120 days after

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

26  President of the Senate and the Speaker of the House of

27  Representatives and shall provide copies to the county

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

29  The books and records of any facilities receiving compensation

30  from an environmental protection disposal fee shall be open to

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    CS for SB 678                                 Second Engrossed



  1  the Florida Public Service Commission and the Auditor General

  2  for review upon request.

  3         7.  The Department of Health shall require all entities

  4  disposing of septage within the Lake Okeechobee watershed to

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

  6  agricultural use plan that limits applications based upon

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

  8  originating from these application sites shall not exceed the

  9  limits established in the district's WOD program.

10         8.6.  By July 1, 2001, The Department of Agriculture

11  and Consumer Services shall initiate rulemaking requiring

12  entities within the Lake Okeechobee watershed which land-apply

13  animal manure to develop conservation or nutrient management

14  plans that limit application, based upon phosphorus loading.

15  Such rules may include criteria and thresholds for the

16  requirement to develop a conservation or nutrient management

17  plan, requirements for plan approval, and recordkeeping

18  requirements.

19         9.7.  Prior to authorizing a discharge into works of

20  the district, the district shall require responsible parties

21  to demonstrate that proposed changes in land use will not

22  result in increased phosphorus loading over that of existing

23  land uses.

24         10.8.  The district, the department, or the Department

25  of Agriculture and Consumer Services, as appropriate, shall

26  implement those alternative nutrient reduction technologies

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

28         Section 4.  Subsection (9) of section 403.08725,

29  Florida Statutes, is amended to read:

30         403.08725  Citrus juice processing facilities.--

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    CS for SB 678                                 Second Engrossed



  1         (9)  ENVIRONMENTAL PROTECTION AGENCY APPROVAL.--No

  2  later than February 1, 2001, the department shall submit this

  3  act to the United States Environmental Protection Agency as a

  4  revision of Florida's state implementation plan and as a

  5  revision of Florida's approved state Title V program. If the

  6  United States Environmental Protection Agency fails to approve

  7  this act as a revision of Florida's state implementation plan

  8  within 3 2 years after submittal, this act shall not apply

  9  with respect to construction requirements for facilities

10  subject to regulation under the act, and the facilities

11  subject to regulation thereunder must comply with all

12  construction permitting requirements, including those for

13  prevention of significant deterioration, and must make

14  application for construction permits for any construction or

15  modification at the facility which was not undertaken in

16  compliance with all permitting requirements of Florida's state

17  implementation plan, within 3 months thereafter. If the United

18  States Environmental Protection Agency fails to approve this

19  act as a revision of Florida's approved state Title V program

20  within 3 2 years after submittal, this act shall not apply

21  with respect to operation requirements, and all facilities

22  subject to regulation under the act must immediately comply

23  with all Title V program requirements and must make

24  application for Title V operation permits within 3 months

25  thereafter.

26         Section 5.  This act shall take effect upon becoming a

27  law.

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