HB 547

1
A bill to be entitled
2An act relating to water pollution control; amending s.
3403.067, F.S.; providing requirements for basin management
4action plans; allowing such plans to take into account the
5benefits of pollutant load reduction achieved by point or
6nonpoint sources, where appropriate; requiring that the
7Department of Environmental Protection adopt all or part
8of any such plan, or any amendment thereto, by secretarial
9order as provided by state law; providing that the
10provisions of the department's rule relating to the
11equitable abatement of pollutants into surface waters may
12not be applied to water bodies or water body segments for
13which a basin management plan that takes into account
14future or new expanded activities or discharges has been
15adopted; authorizing water quality protection programs to
16include the trading of water quality credits; authorizing
17the department to adopt rules related to the trading of
18water quality credits; requiring that such rulemaking
19include certain provisions; specifying basins within which
20the trading of water quality credits shall be authorized;
21requiring that the department provide the Legislature with
22an annual report regarding the status of the trading
23program; correcting cross-references to conform to changes
24made by the act; amending s. 403.088, F.S.; authorizing
25the department to revise a water pollution operation
26permit under certain circumstances; authorizing the
27department to revise, renew, issue, or reissue such a
28permit if a water quality credit trade that meets the
29requirements of a total maximum daily load allocation has
30been approved in a final order issued pursuant to state
31law; requiring that revised permits be accompanied by an
32order establishing a schedule for achieving compliance
33with all permit conditions; providing an effective date.
34
35Be It Enacted by the Legislature of the State of Florida:
36
37     Section 1.  Subsections (7) and (8) of section 403.067,
38Florida Statutes, are amended to read:
39     403.067  Establishment and implementation of total maximum
40daily loads.--
41     (7)  DEVELOPMENT OF BASIN MANAGEMENT PLANS AND
42IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.--
43     (a)  Basin management action plans.--
44     1.  In developing and implementing the total maximum daily
45load for a water body, the department, or the department in
46conjunction with a water management district, may develop a
47basin management action plan that addresses some or all of the
48watersheds and basins tributary to the water body. Such a plan
49must shall integrate the appropriate management strategies
50available to the state through existing water quality protection
51programs to achieve the total maximum daily loads and may
52provide for phased implementation of these management strategies
53to promote timely, cost-effective actions as provided for in s.
54403.151. The plan must shall establish a schedule for
55implementing the management strategies, establish a basis for
56evaluating the plan's effectiveness, and identify feasible
57funding strategies for implementing the plan's management
58strategies. The management strategies may include regional
59treatment systems or other public works, where appropriate, and,
60in basins listed in paragraph (8)(f) for which a basin
61management action plan has been adopted, voluntary trading of
62water quality credits to achieve the needed pollutant load
63reductions.
64     2.  A basin management action plan must shall equitably
65allocate, pursuant to paragraph (6)(b), pollutant reductions to
66individual basins, as a whole to all basins, or to each
67identified point source or category of nonpoint sources, as
68appropriate. For nonpoint sources for which best management
69practices have been adopted, the initial requirement specified
70by the plan must shall be those practices developed pursuant to
71paragraph (c). In accordance with procedures adopted by rule
72under paragraph (8)(c), plans for basins listed in paragraph
73(8)(f) must allow point or nonpoint sources that will achieve
74greater pollutant reductions than required by an adopted total
75maximum load or wasteload allocation to generate, register, and
76trade water quality credits for the excess reductions to enable
77other sources to achieve their allocation if the generation of
78water quality credits does not remove the obligation of a source
79or activity to meet applicable technology requirements or
80adopted best management practices. Such plans must allow trading
81between NPDES permittees, and trading that may or may not
82involve NPDES permittees, where the generation or use of the
83credits involve an entity or activity not subject to department
84water discharge permits whose owner voluntarily elects to become
85subject to the requirements of this section. Where appropriate,
86the plan may take into account the benefits of provide pollutant
87load reduction achieved by point or nonpoint sources credits to
88dischargers that have implemented management strategies to
89reduce pollutant loads, including best management practices,
90prior to the development of the basin management action plan.
91The plan must shall also identify the mechanisms that will
92address by which potential future increases in pollutant loading
93will be addressed.
94     3.  The basin management action planning process is
95intended to involve the broadest possible range of interested
96parties, with the objective of encouraging the greatest amount
97of cooperation and consensus possible. In developing a basin
98management action plan, the department shall assure that key
99stakeholders, including, but not limited to, applicable local
100governments, water management districts, the Department of
101Agriculture and Consumer Services, other appropriate state
102agencies, local soil and water conservation districts,
103environmental groups, regulated interests, and affected
104pollution sources, are invited to participate in the process.
105The department shall hold at least one public meeting in the
106vicinity of the watershed or basin to discuss and receive
107comments during the planning process and shall otherwise
108encourage public participation to the greatest practicable
109extent. Notice of the public meeting must shall be published in
110a newspaper of general circulation in each county in which the
111watershed or basin lies not less than 5 days nor more than 15
112days before the public meeting. A basin management action plan
113shall not supplant or otherwise alter any assessment made under
114subsection (3) or subsection (4) or any calculation or initial
115allocation.
116     4.  The department shall adopt all or any part of a basin
117management action plan and any amendment to such plan by
118secretarial order pursuant to chapter 120 to implement the
119provisions of this section.
120     5.  The basin management action plan must shall include
121milestones for implementation and water quality improvement, and
122an associated water quality monitoring component sufficient to
123evaluate whether reasonable progress in pollutant load
124reductions is being achieved over time. An assessment of
125progress toward these milestones shall be conducted every 5
126years, and revisions to the plan shall be made as appropriate.
127Revisions to the basin management action plan shall be made by
128the department in cooperation with basin stakeholders. Revisions
129to the management strategies required for nonpoint sources must
130shall follow the procedures set forth in subparagraph (c)4.
131Revised basin management action plans must shall be adopted
132pursuant to subparagraph 4.
133     6.  The provisions of the department's rule relating to the
134equitable abatement of pollutants into surface waters may not be
135applied to water bodies or water body segments for which a basin
136management plan that takes into account future new or expanded
137activities or discharges has been adopted pursuant to this
138section.
139     (b)  Total maximum daily load implementation.--
140     1.  The department shall be the lead agency in coordinating
141the implementation of the total maximum daily loads through
142existing water quality protection programs. Application of a
143total maximum daily load by a water management district must
144shall be consistent with this section and shall not require the
145issuance of an order or a separate action pursuant to s.
146120.536(1) or s. 120.54 for the adoption of the calculation and
147allocation previously established by the department. Such
148programs may include, but are not limited to:
149     a.  Permitting and other existing regulatory programs,
150including water-quality-based effluent limitations;
151     b.  Nonregulatory and incentive-based programs, including
152best management practices, cost sharing, waste minimization,
153pollution prevention, agreements established pursuant to s.
154403.061(21), and public education;
155     c.  Other water quality management and restoration
156activities, for example surface water improvement and management
157plans approved by water management districts or basin management
158action plans developed pursuant to this subsection;
159     d.  Trading of water quality credits Pollutant trading or
160other equitable economically based agreements;
161     e.  Public works including capital facilities; or
162     f.  Land acquisition.
163     2.  For a basin management action plan adopted pursuant to
164paragraph (a) subparagraph (a)4., any management strategies and
165pollutant reduction requirements associated with a pollutant of
166concern for which a total maximum daily load has been developed,
167including effluent limits set forth for a discharger subject to
168NPDES permitting, if any, must shall be included in a timely
169manner in subsequent NPDES permits or permit modifications for
170that discharger. The department shall not impose limits or
171conditions implementing an adopted total maximum daily load in
172an NPDES permit until the permit expires, the discharge is
173modified, or the permit is reopened pursuant to an adopted basin
174management action plan.
175     a.  Absent a detailed allocation, total maximum daily loads
176shall be implemented through NPDES permit conditions that
177provide for afford a compliance schedule. In such instances, a
178facility's NPDES permit must shall allow time for the issuance
179of an order adopting the basin management action plan. The time
180allowed for the issuance of an order adopting the plan may shall
181not exceed 5 years. Upon issuance of an order adopting the plan,
182the permit must shall be reopened, as necessary, and permit
183conditions consistent with the plan must shall be established.
184Notwithstanding the other provisions of this subparagraph, upon
185request by a NPDES permittee, the department as part of a permit
186issuance, renewal, or modification may establish individual
187allocations prior to the adoption of a basin management action
188plan.
189     b.  For holders of NPDES municipal separate storm sewer
190system permits and other stormwater sources, implementation of a
191total maximum daily load or basin management action plan must
192shall be achieved, to the maximum extent practicable, through
193the use of best management practices or other management
194measures.
195     c.  The basin management action plan does not relieve the
196discharger from any requirement to obtain, renew, or modify an
197NPDES permit or to abide by other requirements of the permit.
198     d.  Management strategies set forth in a basin management
199action plan to be implemented by a discharger subject to
200permitting by the department must shall be completed pursuant to
201the schedule set forth in the basin management action plan. This
202implementation schedule may extend beyond the 5-year term of an
203NPDES permit.
204     e.  Management strategies and pollution reduction
205requirements set forth in a basin management action plan for a
206specific pollutant of concern shall not be subject to challenge
207under chapter 120 at the time they are incorporated, in an
208identical form, into a subsequent NPDES permit or permit
209modification.
210     f.  For nonagricultural pollutant sources not subject to
211NPDES permitting but permitted pursuant to other state,
212regional, or local water quality programs, the pollutant
213reduction actions adopted in a basin management action plan
214shall be implemented to the maximum extent practicable as part
215of those permitting programs.
216     g.  A nonpoint source discharger included in a basin
217management action plan must shall demonstrate compliance with
218the pollutant reductions established under pursuant to
219subsection (6) by either implementing the appropriate best
220management practices established pursuant to paragraph (c) or
221conducting water quality monitoring prescribed by the department
222or a water management district.
223     h.  A nonpoint source discharger included in a basin
224management action plan may be subject to enforcement action by
225the department or a water management district based upon a
226failure to implement the responsibilities set forth in sub-
227subparagraph g.
228     i.  A landowner, discharger, or other responsible person
229who is implementing applicable management strategies specified
230in an adopted basin management action plan may shall not be
231required by permit, enforcement action, or otherwise to
232implement additional management strategies to reduce pollutant
233loads to attain the pollutant reductions established pursuant to
234subsection (6) and shall be deemed to be in compliance with this
235section. This subparagraph does not limit the authority of the
236department to amend a basin management action plan as specified
237in subparagraph (a)5.
238     (c)  Best management practices.--
239     1.  The department, in cooperation with the water
240management districts and other interested parties, as
241appropriate, may develop suitable interim measures, best
242management practices, or other measures necessary to achieve the
243level of pollution reduction established by the department for
244nonagricultural nonpoint pollutant sources in allocations
245developed pursuant to subsection (6) and this subsection. These
246practices and measures may be adopted by rule by the department
247and the water management districts pursuant to ss. 120.536(1)
248and 120.54, and, where adopted by rule, shall be implemented by
249those parties responsible for nonagricultural nonpoint source
250pollution.
251     2.  The Department of Agriculture and Consumer Services may
252develop and adopt by rule pursuant to ss. 120.536(1) and 120.54
253suitable interim measures, best management practices, or other
254measures necessary to achieve the level of pollution reduction
255established by the department for agricultural pollutant sources
256in allocations developed pursuant to subsection (6) and this
257subsection or for programs implemented pursuant to paragraph
258(11)(b). These practices and measures may be implemented by
259those parties responsible for agricultural pollutant sources and
260the department, the water management districts, and the
261Department of Agriculture and Consumer Services shall assist
262with implementation. In the process of developing and adopting
263rules for interim measures, best management practices, or other
264measures, the Department of Agriculture and Consumer Services
265shall consult with the department, the Department of Health, the
266water management districts, representatives from affected
267farming groups, and environmental group representatives. Such
268rules must shall also incorporate provisions for a notice of
269intent to implement the practices and a system to assure the
270implementation of the practices, including recordkeeping
271requirements.
272     3.  Where interim measures, best management practices, or
273other measures are adopted by rule, the effectiveness of such
274practices in achieving the levels of pollution reduction
275established in allocations developed by the department pursuant
276to subsection (6) and this subsection or in programs implemented
277pursuant to paragraph (11)(b) must shall be verified at
278representative sites by the department. The department shall use
279best professional judgment in making the initial verification
280that the best management practices are reasonably expected to be
281effective and, where applicable, must shall notify the
282appropriate water management district or the Department of
283Agriculture and Consumer Services of its initial verification
284prior to the adoption of a rule proposed pursuant to this
285paragraph. Implementation, in accordance with rules adopted
286under this paragraph, of practices that have been initially
287verified to be effective, or verified to be effective by
288monitoring at representative sites, by the department, shall
289provide a presumption of compliance with state water quality
290standards and release from the provisions of s. 376.307(5) for
291those pollutants addressed by the practices, and the department
292is not authorized to institute proceedings against the owner of
293the source of pollution to recover costs or damages associated
294with the contamination of surface water or groundwater caused by
295those pollutants. Research projects funded by the department, a
296water management district, or the Department of Agriculture and
297Consumer Services to develop or demonstrate interim measures or
298best management practices shall be granted a presumption of
299compliance with state water quality standards and a release from
300the provisions of s. 376.307(5). The presumption of compliance
301and release is shall be limited to the research site and only
302for those pollutants addressed by the interim measures or best
303management practices. Eligibility for the presumption of
304compliance and release is shall be limited to research projects
305on sites where the owner or operator of the research site and
306the department, a water management district, or the Department
307of Agriculture and Consumer Services have entered into a
308contract or other agreement that, at a minimum, specifies the
309research objectives, the cost-share responsibilities of the
310parties, and a schedule that details the beginning and ending
311dates of the project.
312     4.  Where water quality problems are demonstrated, despite
313the appropriate implementation, operation, and maintenance of
314best management practices and other measures required by
315according to rules adopted under this paragraph, the department,
316a water management district, or the Department of Agriculture
317and Consumer Services, in consultation with the department,
318shall institute a reevaluation of the best management practice
319or other measure. Should the reevaluation determine that the
320best management practice or other measure requires modification,
321the department, a water management district, or the Department
322of Agriculture and Consumer Services, as appropriate, shall
323revise the rule to require implementation of the modified
324practice within a reasonable time period as specified in the
325rule.
326     5.  Agricultural records relating to processes or methods
327of production, costs of production, profits, or other financial
328information held by the Department of Agriculture and Consumer
329Services pursuant to subparagraphs 3. and 4. or pursuant to any
330rule adopted pursuant to subparagraph 2. are confidential and
331exempt from s. 119.07(1) and s. 24(a), Art. I of the State
332Constitution. Upon request, records made confidential and exempt
333pursuant to this subparagraph shall be released to the
334department or any water management district if provided that the
335confidentiality specified by this subparagraph for such records
336is maintained.
337     6.  The provisions of subparagraphs 1. and 2. do shall not
338preclude the department or water management district from
339requiring compliance with water quality standards or with
340current best management practice requirements set forth in any
341applicable regulatory program authorized by law to protect for
342the purpose of protecting water quality. Additionally,
343subparagraphs 1. and 2. are applicable only to the extent that
344they do not conflict with any rules adopted by the department
345which that are necessary to maintain a federally delegated or
346approved program.
347     (8)  RULES.--The department is authorized to adopt rules
348pursuant to ss. 120.536(1) and 120.54 for:
349     (a)  Delisting water bodies or water body segments from the
350list developed under subsection (4) pursuant to the guidance
351under subsection (5).;
352     (b)  Administering Administration of funds to implement the
353total maximum daily load and basin management action planning
354programs.;
355     (c)  Water quality credit Procedures for pollutant trading
356among the pollutant sources to a water body or water body
357segment in basins listed in paragraph (f) shall be authorized by
358department rule. By July 1, 2008, rulemaking must be initiated
359which provides for the following:, including a mechanism for the
360issuance and tracking of pollutant credits. Such procedures may
361be implemented through permits or other authorizations and must
362be legally binding. Prior to adopting rules for pollutant
363trading under this paragraph, and no later than November 30,
3642006, the Department of Environmental Protection shall submit a
365report to the Governor, the President of the Senate, and the
366Speaker of the House of Representatives containing
367recommendations on such rules, including the proposed basis for
368equitable economically based agreements and the tracking and
369accounting of pollution credits or other similar mechanisms.
370Such recommendations shall be developed in cooperation with a
371technical advisory committee that includes experts in pollutant
372trading and representatives of potentially affected parties;
373     1.  The process to be used to determine how credits are
374generated, quantified, and validated;
375     2.  A publicly accessible water quality credit trading
376registry that tracks water quality credits and trades and lists
377the prices paid for such credits and that does not allow the
378department to participate in the establishment of such prices;
379     3.  Limitations on the availability and use of water
380quality credits, including a list of eligible pollutants or
381parameters and limited water quality requirements and, where
382appropriate, adjustments to reflect best management practice
383performance uncertainties and water-segment-specific location
384factors;
385     4.  The timing and duration of credits and allowance for
386credit transferability; and
387     5.  Mechanisms for determining and ensuring compliance with
388trading procedures, including recordkeeping, monitoring,
389reporting, and inspections. Generators of traded credits are
390responsible for achieving the load reductions on which the
391credits are based.
392     (d)  The total maximum daily load calculation in accordance
393with paragraph (6)(a) immediately upon the effective date of
394this act, for those eight water segments within Lake Okeechobee
395proper as submitted to the United States Environmental
396Protection Agency pursuant to subsection (2).; and
397     (e)  Implementation of other specific provisions.
398     (f)  Basins within which trading shall be authorized under
399paragraph (c) include the Lower St. Johns River Basin, Tampa Bay
400Basin, and Pensacola Bay Basin. The department shall provide an
401annual report to the Legislature on the status of the trading
402program authorized in this section.
403     Section 2.  Paragraphs (e) and (f) of subsection (2) of
404section 403.088, Florida Statutes, are amended to read:
405     403.088  Water pollution operation permits; conditions.--
406     (2)
407     (e)  However, if the discharge will not meet permit
408conditions or applicable statutes and rules, the department may
409issue, renew, revise, or reissue the operation permit if:
410     1.  The applicant is constructing, installing, or placing
411into operation, or has submitted plans and a reasonable schedule
412for constructing, installing, or placing into operation, an
413approved pollution abatement facility or alternative waste
414disposal system;
415     2.  The applicant needs permission to pollute the waters
416within the state for a period of time necessary to complete
417research, planning, construction, installation, or operation of
418an approved and acceptable pollution abatement facility or
419alternative waste disposal system;
420     3.  There is no present, reasonable, alternative means of
421disposing of the waste other than by discharging it into the
422waters of the state;
423     4.  The granting of an operation permit will be in the
424public interest; or
425     5.  The discharge will not be unreasonably destructive to
426the quality of the receiving waters; or.
427     6.  A water quality credit trade that meets the
428requirements of a total maximum daily load allocation has been
429approved in a final order issued under s. 403.067(7)(a)4.
430     (f)  A permit issued, renewed, revised, or reissued
431pursuant to paragraph (e) shall be accompanied by an order
432establishing a schedule for achieving compliance with all permit
433conditions. Such permit may require compliance with the
434accompanying order.
435     Section 3.  This act shall take effect July 1, 2008.


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