CS/CS/HB 239

1	A bill to be entitled
2	An act relating to water quality; directing the Department
3	of Environmental Protection to publish a notice of
4	proposed rulemaking by a specified date to revise certain
5	criteria for the state's waterbodies; creating s. 403.066,
6	F.S.; providing for the classification of designated uses
7	of the state's surface waters by human use and aquatic
8	life use; redesignating specified surface water
9	classifications; authorizing the department to adopt
10	rules; providing for effect contingent upon approval of
11	the United States Environmental Protection Agency;
12	providing for the department to adopt a classification
13	system by rule, subject to ratification by the
14	Legislature; providing for repeal of the section upon
15	ratification of the department rule; amending ss. 373.199,
16	373.453, 373.4592, 373.461, 380.061, 403.061, 403.086,
17	403.0882, 403.121, 403.707, and 403.813, F.S.; conforming
18	provisions to changes made by the act; providing an
19	effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1.  The Department of Environmental Protection is
24	directed to publish a notice of proposed rulemaking no later
25	than May 31, 2012, to revise the dissolved oxygen criteria
26	applicable to Florida waterbodies to take into account the
27	variability occurring in nature.
28	Section 2.  Section 403.066, Florida Statutes, is created
29	to read:
30	403.066  Classification of surface waters.-
31	(1)  The designated uses for all surface waters of the
32	state shall be classified to include a Human Use and an Aquatic
33	Life Use as follows:
34	(a)  Human Uses.-
35	1.  Human Use 1 - Protection of potable water supply
36	suitable for human consumption, fish consumption, and full body
37	contact.-This use requires maintaining a level of water quality
38	suitable for potable water or intended to be suitable for human
39	consumption after conventional drinking water treatment methods.
40	2.  Human Use 2 - Protection of shellfish harvesting for
41	human consumption, fish consumption, and full body contact.-This
42	use requires maintaining a level of water quality that prevents
43	unpalatable flavor or accumulation of substances harmful to
44	human health in shellfish tissue.
45	3.  Human Use 3 - Protection of fish consumption and full
46	body contact.-This use requires maintaining a level of water
47	quality that prevents unpalatable flavor or accumulation of
48	substances harmful to human health in fish tissue. Recreational
49	uses may support prolonged and direct contact with the water
50	with minimal risk of water ingestion in quantities sufficient to
51	pose a health hazard.
52	4.  Human Use 4 - Protection of fish consumption and
53	incidental human contact.-This use requires maintaining a level
54	of water quality that prevents unpalatable flavor or
55	accumulation of substances harmful to human health in fish
56	tissue. Recreational uses may result in contact with the water
57	that is incidental or accidental with minimal risk of water
58	ingestion.
59	5.  Human Use 5 - Protection of fish consumption.-This use
60	requires maintaining a level of water quality that prevents
61	unpalatable flavor or accumulation of substances harmful to
62	human health in fish tissue. Human contact with the water is
63	limited or restricted due to unsafe physical conditions.
64	6.  Human Use 6 - Protection of waters for crop irrigation
65	or consumption by livestock.-This use requires maintaining a
66	level of water quality suitable for consumption of water by
67	livestock or surface water withdrawal for the irrigation of
68	cropland.
69	7.  Human Use 7 - Utility and industrial uses.-This use
70	requires maintaining a level of water quality suitable for
71	utility and industrial purposes.
72	(b)  Aquatic Life Uses.-
73	1.  Aquatic Life Use 1 - Propagation and maintenance of
74	exceptional aquatic communities that approximate the biological
75	structure and function of the natural background.-Under this
76	use, natural structural, functional, and taxonomic integrity is
77	preserved or approximated; structure and function are similar to
78	the natural community; and ecosystem level functions are fully
79	maintained.
80	2.  Aquatic Life Use 2 - Propagation and maintenance of
81	healthy, well-balanced aquatic communities with minimal
82	deviation of the biological structure and function relative to
83	the natural background.-Under this use, overall balanced
84	distribution of all expected groups of taxa and all ecosystem
85	functions are fully maintained. May have changes in the
86	biological structure as evidenced by the replacement of
87	sensitive taxa by more tolerant taxa.
88	3.  Aquatic Life Use 3 - Protection of aquatic communities
89	with moderate deviation of the biological structure and function
90	relative to the natural background.-Under this use, changes in
91	the biological structure and function have resulted in an
92	altered aquatic community, a transition between a community
93	characterized by sensitive or expected taxa to one characterized
94	by tolerant taxa has occurred, and biology may be limited due to
95	habitat limitations, hydrologic modifications, physical
96	alterations, or other factors identified by department rule.
97	4.  Aquatic Life Use 4 - Protection of aquatic communities
98	with substantial deviation of the biological structure and
99	function relative to the natural background.-Under this use,
100	substantial changes in the biological structure and function
101	have resulted in a limited aquatic community, the community
102	consists primarily of tolerant taxa able to survive and
103	propagate under adverse or variable environmental conditions,
104	and biology may be limited due to extreme habitat limitations,
105	hydrologic modifications, physical alterations, or other factors
106	identified by department rule.
107	(2)  Unless otherwise specified by department rule, the
108	following surface water classifications are redesignated:
109	(a)  Class I is redesignated as Human Use 1/Aquatic Life
110	Use 2.
111	(b)  Class II is redesignated as Human Use 2/Aquatic Life
112	Use 2.
113	(c)  Class III is redesignated as Human Use 3/Aquatic Life
114	Use 2.
115	(d)  Class IV is redesignated as Human Use 6 and includes
116	the Class IV classification criteria.
117	(e)  Class V is redesignated as Human Use 7 and includes
118	the Class V classification criteria.
119	(3)  The department may adopt rules to implement this
120	section.
121	(4)  This section is effective upon approval of the United
122	States Environmental Protection Agency.
123	(5)  If the department determines that changes are
124	necessary to improve the classification system under this
125	section, it shall adopt an updated classification system by
126	rule, which shall be subject to ratification by the Legislature.
127	Upon ratification of the department rule, this section is
128	repealed.
129	Section 3.  Paragraph (d) of subsection (4) of section
130	373.199, Florida Statutes, is amended to read:
131	373.199  Florida Forever Water Management District Work
132	Plan.-
133	(4)  The list submitted by the districts shall include,
134	where applicable, the following information for each project:
135	(d)  A description of strategies and potential strategies,
136	including improved stormwater management, for restoring or
137	protecting the water body to Human Use 3/Aquatic Life Use 2
138	Class III or better surface water quality status. Such
139	strategies may utilize alternative technologies for pollutant
140	reduction, such as cost-effective biologically-based, hybrid
141	wetlands/chemical and other innovative nutrient control
142	technologies.
143	Section 4.  Paragraph (e) of subsection (2) of section
144	373.453, Florida Statutes, is amended to read:
145	373.453  Surface water improvement and management plans and
146	programs.-
147	(2)  Unless otherwise provided by law, the water management
148	districts, in cooperation with state agencies, local
149	governments, and others, may develop surface water improvement
150	and management plans and programs for the water bodies
151	identified on the priority lists. Plans developed pursuant to
152	this subsection shall include, but not be limited to:
153	(e)  A description of strategies and a schedule for related
154	management actions for restoring or protecting the water body to
155	Human Use 3/Aquatic Life Use 2 Class III or better, including
156	those needed to help achieve state-adopted total maximum daily
157	loads for the water body;
158	Section 5.  Paragraph (m) of subsection (2) and paragraph
159	(e) of subsection (4) of section 373.4592, Florida Statutes, are
160	amended to read:
161	373.4592  Everglades improvement and management.-
162	(2)  DEFINITIONS.-As used in this section:
163	(m)  "Phosphorus criterion" means a numeric interpretation
164	for phosphorus of the Human Use 3/Aquatic Life Use 2 Class III
165	narrative nutrient criterion.
166	(4)  EVERGLADES PROGRAM.-
167	(e)  Evaluation of water quality standards.-
168	1.  The department and the district shall employ all means
169	practicable to complete by December 31, 1998, any additional
170	research necessary to:
171	a.  Numerically interpret for phosphorus the Human Use
172	3/Aquatic Life Use 2 Class III narrative nutrient criterion
173	necessary to meet water quality standards in the Everglades
174	Protection Area; and
175	b.  Evaluate existing water quality standards applicable to
176	the Everglades Protection Area and EAA canals.
177	2.  In no case shall such phosphorus criterion allow waters
178	in the Everglades Protection Area to be altered so as to cause
179	an imbalance in the natural populations of aquatic flora or
180	fauna. The phosphorus criterion shall be 10 parts per billion
181	(ppb) in the Everglades Protection Area in the event the
182	department does not adopt by rule such criterion by December 31,
183	2003. However, in the event the department fails to adopt a
184	phosphorus criterion on or before December 31, 2002, any person
185	whose substantial interests would be affected by the rulemaking
186	shall have the right, on or before February 28, 2003, to
187	petition for a writ of mandamus to compel the department to
188	adopt by rule such criterion. Venue for the mandamus action must
189	be Leon County. The court may stay implementation of the 10
190	parts per billion (ppb) criterion during the pendency of the
191	mandamus proceeding upon a demonstration by the petitioner of
192	irreparable harm in the absence of such relief. The department's
193	phosphorus criterion, whenever adopted, shall supersede the 10
194	parts per billion (ppb) criterion otherwise established by this
195	section, but shall not be lower than the natural conditions of
196	the Everglades Protection Area and shall take into account
197	spatial and temporal variability. The department's rule adopting
198	a phosphorus criterion may include moderating provisions during
199	the implementation of the initial phase of the Long-Term Plan
200	authorizing discharges based upon BAPRT providing net
201	improvement to impacted areas. Discharges to unimpacted areas
202	may also be authorized by moderating provisions, which shall
203	require BAPRT, and which must be based upon a determination by
204	the department that the environmental benefits of the discharge
205	clearly outweigh potential adverse impacts and otherwise comply
206	with antidegradation requirements. Moderating provisions
207	authorized by this section shall not extend beyond December 2016
208	unless further authorized by the Legislature pursuant to
209	paragraph (3)(d).
210	3.  The department shall use the best available information
211	to define relationships between waters discharged to, and the
212	resulting water quality in, the Everglades Protection Area. The
213	department or the district shall use these relationships to
214	establish discharge limits in permits for discharges into the
215	EAA canals and the Everglades Protection Area necessary to
216	prevent an imbalance in the natural populations of aquatic flora
217	or fauna in the Everglades Protection Area, and to provide a net
218	improvement in the areas already impacted. During the
219	implementation of the initial phase of the Long-Term Plan,
220	permits issued by the department shall be based on BAPRT and
221	shall include technology-based effluent limitations consistent
222	with the Long-Term Plan. Compliance with the phosphorus
223	criterion shall be based upon a long-term geometric mean of
224	concentration levels to be measured at sampling stations
225	recognized from the research to be reasonably representative of
226	receiving waters in the Everglades Protection Area, and so
227	located so as to assure that the Everglades Protection Area is
228	not altered so as to cause an imbalance in natural populations
229	of aquatic flora and fauna and to assure a net improvement in
230	the areas already impacted. For the Everglades National Park and
231	the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the
232	method for measuring compliance with the phosphorus criterion
233	shall be in a manner consistent with Appendices A and B,
234	respectively, of the settlement agreement dated July 26, 1991,
235	entered in case No. 88-1886-Civ-Hoeveler, United States District
236	Court for the Southern District of Florida, that recognizes and
237	provides for incorporation of relevant research.
238	4.  The department's evaluation of any other water quality
239	standards must include the department's antidegradation
240	standards and EAA canal classifications. In recognition of the
241	special nature of the conveyance canals of the EAA, as a
242	component of the classification process, the department is
243	directed to formally recognize by rulemaking existing actual
244	beneficial uses of the conveyance canals in the EAA. This shall
245	include recognition of the Human Use 3/Aquatic Life Use 2 Class
246	III designated uses of recreation, propagation and maintenance
247	of a healthy, well-balanced population of fish and wildlife, the
248	integrated water management purposes for which the Central and
249	Southern Florida Flood Control Project was constructed, flood
250	control, conveyance of water to and from Lake Okeechobee for
251	urban and agricultural water supply, Everglades hydroperiod
252	restoration, conveyance of water to the STAs, and navigation.
253	Section 6.  Paragraph (b) of subsection (1) and paragraph
254	(b) of subsection (2) of section 373.461, Florida Statutes, are
255	amended to read:
256	373.461  Lake Apopka improvement and management.-
257	(1)  FINDINGS AND INTENT.-
258	(b)  Technical studies have determined that substantial
259	reductions in or elimination of phosphorus in farm discharges to
260	Lake Apopka will be necessary in order to improve water quality
261	and restore the lake to Human Use 3/Aquatic Life Use 2 Class III
262	standards.
263	(2)  DEFINITIONS.-As used in this section:
264	(b)  "Phosphorus criterion" means a numeric interpretation
265	for phosphorus of the Human Use 3/Aquatic Life Use 2 Class III
266	narrative nutrient criterion.
267	Section 7.  Paragraph (a) of subsection (3) of section
268	380.061, Florida Statutes, is amended to read:
269	380.061  The Florida Quality Developments program.-
270	(3)(a)  To be eligible for designation under this program,
271	the developer shall comply with each of the following
272	requirements if applicable to the site of a qualified
273	development:
274	1.  Donate or enter into a binding commitment to donate the
275	fee or a lesser interest sufficient to protect, in perpetuity,
276	the natural attributes of the types of land listed below. In
277	lieu of this requirement, the developer may enter into a binding
278	commitment that runs with the land to set aside such areas on
279	the property, in perpetuity, as open space to be retained in a
280	natural condition or as otherwise permitted under this
281	subparagraph. Under the requirements of this subparagraph, the
282	developer may reserve the right to use such areas for passive
283	recreation that is consistent with the purposes for which the
284	land was preserved.
285	a.  Those wetlands and water bodies throughout the state
286	which would be delineated if the provisions of s. 373.4145(1)(b)
287	were applied. The developer may use such areas for the purpose
288	of site access, provided other routes of access are unavailable
289	or impracticable; may use such areas for the purpose of
290	stormwater or domestic sewage management and other necessary
291	utilities if such uses are permitted pursuant to chapter 403; or
292	may redesign or alter wetlands and water bodies within the
293	jurisdiction of the Department of Environmental Protection which
294	have been artificially created if the redesign or alteration is
295	done so as to produce a more naturally functioning system.
296	b.  Active beach or primary and, where appropriate,
297	secondary dunes, to maintain the integrity of the dune system
298	and adequate public accessways to the beach. However, the
299	developer may retain the right to construct and maintain
300	elevated walkways over the dunes to provide access to the beach.
301	c.  Known archaeological sites determined to be of
302	significance by the Division of Historical Resources of the
303	Department of State.
304	d.  Areas known to be important to animal species
305	designated as endangered or threatened by the United States Fish
306	and Wildlife Service or by the Fish and Wildlife Conservation
307	Commission, for reproduction, feeding, or nesting; for traveling
308	between such areas used for reproduction, feeding, or nesting;
309	or for escape from predation.
310	e.  Areas known to contain plant species designated as
311	endangered by the Department of Agriculture and Consumer
312	Services.
313	2.  Produce, or dispose of, no substances designated as
314	hazardous or toxic substances by the United States Environmental
315	Protection Agency, the Department of Environmental Protection,
316	or the Department of Agriculture and Consumer Services. This
317	subparagraph does not apply to the production of these
318	substances in nonsignificant amounts as would occur through
319	household use or incidental use by businesses.
320	3.  Participate in a downtown reuse or redevelopment
321	program to improve and rehabilitate a declining downtown area.
322	4.  Incorporate no dredge and fill activities in, and no
323	stormwater discharge into, waters designated as Human Use
324	2/Aquatic Life Use 2 Class II, aquatic preserves, or Outstanding
325	Florida Waters, except as permitted pursuant to s. 403.813(1),
326	and the developer demonstrates that those activities meet the
327	standards under Human Use 2/Aquatic Life Use 2 Class II waters,
328	Outstanding Florida Waters, or aquatic preserves, as applicable.
329	5.  Include open space, recreation areas, Florida-friendly
330	landscaping as defined in s. 373.185, and energy conservation
331	and minimize impermeable surfaces as appropriate to the location
332	and type of project.
333	6.  Provide for construction and maintenance of all onsite
334	infrastructure necessary to support the project and enter into a
335	binding commitment with local government to provide an
336	appropriate fair-share contribution toward the offsite impacts
337	that the development will impose on publicly funded facilities
338	and services, except offsite transportation, and condition or
339	phase the commencement of development to ensure that public
340	facilities and services, except offsite transportation, are
341	available concurrent with the impacts of the development. For
342	the purposes of offsite transportation impacts, the developer
343	shall comply, at a minimum, with the standards of the state land
344	planning agency's development-of-regional-impact transportation
345	rule, the approved strategic regional policy plan, any
346	applicable regional planning council transportation rule, and
347	the approved local government comprehensive plan and land
348	development regulations adopted pursuant to part II of chapter
349	163.
350	7.  Design and construct the development in a manner that
351	is consistent with the adopted state plan, the applicable
352	strategic regional policy plan, and the applicable adopted local
353	government comprehensive plan.
354	Section 8.  Subsection (29) of section 403.061, Florida
355	Statutes, is amended to read:
356	403.061  Department; powers and duties.-The department
357	shall have the power and the duty to control and prohibit
358	pollution of air and water in accordance with the law and rules
359	adopted and promulgated by it and, for this purpose, to:
360	(29)  Adopt by rule special criteria to protect Human Use
361	2/Aquatic Life Use 2 Class II and Human Use 3/Aquatic Life Use 2
362	Class III shellfish harvesting waters. Such rules may include
363	special criteria for approving docking facilities that have 10
364	or fewer slips if the construction and operation of such
365	facilities will not result in the closure of shellfish waters.
366
367	The department shall implement such programs in conjunction with
368	its other powers and duties and shall place special emphasis on
369	reducing and eliminating contamination that presents a threat to
370	humans, animals or plants, or to the environment.
371	Section 9.  Paragraph (b) of subsection (7) of section
372	403.086, Florida Statutes, is amended to read:
373	403.086  Sewage disposal facilities; advanced and secondary
374	waste treatment.-
375	(7)
376	(b)  Notwithstanding any other provisions of this chapter
377	or chapter 373, backup discharges of reclaimed water meeting the
378	standards as set forth in subsection (4) shall be presumed to be
379	allowable and shall be permitted in all waters in the state at a
380	reasonably accessible point where such discharge results in
381	minimal negative impact. Wet weather discharges as provided in
382	s. 2(3)(c), chapter 90-262, Laws of Florida, shall include
383	backup discharges as provided in this section. The presumption
384	of the allowability of a backup discharge may be overcome only
385	by a demonstration that one or more of the following conditions
386	is present:
387	1.  The discharge will be to an Outstanding Florida Water,
388	except as provided in chapter 90-262, Laws of Florida;
389	2.  The discharge will be to Human Use 1/Aquatic Life Use 2
390	Class I or Human Use 2/Aquatic Life Use 2 Class II waters;
391	3.  The increased volume of fresh water contributed by a
392	backup discharge will seriously alter the natural freshwater to
393	saltwater balance of receiving waters after reasonable
394	opportunity for mixing;
395	4.  The discharge will be to a water body having a
396	pollutant load reduction goal established by a water management
397	district or the department, and the discharge will cause or
398	contribute to a violation of the established goal;
399	5.  The discharge fails to meet the requirements of the
400	antidegradation policy contained in department rules; or
401	6.  The discharge will be to waters that the department
402	determines require more stringent nutrient limits than those set
403	forth in subsection (4).
404	Section 10.  Paragraph (b) of subsection (6) of section
405	403.0882, Florida Statutes, is amended to read:
406	403.0882  Discharge of demineralization concentrate.-
407	(6)  This subsection applies only to small water utility
408	businesses.
409	(b)  The presumption in paragraph (a) may be overcome only
410	by a demonstration that one or more of the following conditions
411	is present:
412	1.  The discharge will be made directly into an Outstanding
413	Florida Water, except as provided in chapter 90-262, Laws of
414	Florida;
415	2.  The discharge will be made directly to Human Use
416	1/Aquatic Life Use 2 Class I or Human Use 2/Aquatic Life Use 2
417	Class II waters;
418	3.  The discharge will be made to a water body having a
419	total maximum daily load established by the department and the
420	discharge will cause or contribute to a violation of the
421	established load;
422	4.  The discharge fails to meet the requirements of the
423	antidegradation policy contained in the department rules;
424	5.  The discharge will be made to a sole-source aquifer;
425	6.  The discharge fails to meet applicable surface water
426	and groundwater quality standards; or
427	7.  The results of any toxicity test performed by the
428	applicant under paragraph (d) or by the department indicate that
429	the discharge does not meet toxicity requirements at the
430	boundary of the mixing zone under subparagraph (a)2.
431	Section 11.  Paragraphs (c) of subsection (3) of section
432	403.121, Florida Statutes, is amended to read:
433	403.121  Enforcement; procedure; remedies.-The department
434	shall have the following judicial and administrative remedies
435	available to it for violations of this chapter, as specified in
436	s. 403.161(1).
437	(3)  Except for violations involving hazardous wastes,
438	asbestos, or underground injection, administrative penalties
439	must be calculated according to the following schedule:
440	(c)  For a dredge and fill or stormwater violation, the
441	department shall assess a penalty of $1,000 for unpermitted or
442	unauthorized dredging or filling or unauthorized construction of
443	a stormwater management system against the person or persons
444	responsible for the illegal dredging or filling, or unauthorized
445	construction of a stormwater management system plus $2,000 if
446	the dredging or filling occurs in an aquatic preserve,
447	Outstanding Florida Water, conservation easement, or Human Use
448	1/Aquatic Life Use 2 Class I or Human Use 2/Aquatic Life Use 2
449	Class II surface water, plus $1,000 if the area dredged or
450	filled is greater than one-quarter acre but less than or equal
451	to one-half acre, and plus $1,000 if the area dredged or filled
452	is greater than one-half acre but less than or equal to one
453	acre. The administrative penalty schedule shall not apply to a
454	dredge and fill violation if the area dredged or filled exceeds
455	one acre. The department retains the authority to seek the
456	judicial imposition of civil penalties for all dredge and fill
457	violations involving more than one acre. The department shall
458	assess a penalty of $3,000 for the failure to complete required
459	mitigation, failure to record a required conservation easement,
460	or for a water quality violation resulting from dredging or
461	filling activities, stormwater construction activities or
462	failure of a stormwater treatment facility. For stormwater
463	management systems serving less than 5 acres, the department
464	shall assess a penalty of $2,000 for the failure to properly or
465	timely construct a stormwater management system. In addition to
466	the penalties authorized in this subsection, the department
467	shall assess a penalty of $5,000 per violation against the
468	contractor or agent of the owner or tenant that conducts
469	unpermitted or unauthorized dredging or filling. For purposes of
470	this paragraph, the preparation or signing of a permit
471	application by a person currently licensed under chapter 471 to
472	practice as a professional engineer shall not make that person
473	an agent of the owner or tenant.
474	Section 12.  Subsection (5) of section 403.707, Florida
475	Statutes, is amended to read:
476	403.707  Permits.-
477	(5)  The department may not issue a construction permit
478	pursuant to this part for a new solid waste landfill within
479	3,000 feet of Human Use 1/Aquatic Life Use 2 Class I surface
480	waters.
481	Section 13.  Paragraph (m) of subsection (1) of section
482	403.813, Florida Statutes, is amended to read:
483	403.813  Permits issued at district centers; exceptions.-
484	(1)  A permit is not required under this chapter, chapter
485	373, chapter 61-691, Laws of Florida, or chapter 25214 or
486	chapter 25270, 1949, Laws of Florida, for activities associated
487	with the following types of projects; however, except as
488	otherwise provided in this subsection, nothing in this
489	subsection relieves an applicant from any requirement to obtain
490	permission to use or occupy lands owned by the Board of Trustees
491	of the Internal Improvement Trust Fund or any water management
492	district in its governmental or proprietary capacity or from
493	complying with applicable local pollution control programs
494	authorized under this chapter or other requirements of county
495	and municipal governments:
496	(m)  The installation of subaqueous transmission and
497	distribution lines laid on, or embedded in, the bottoms of
498	waters in the state, except in Human Use 1/Aquatic Life Use 2
499	Class I and Human Use 2/Aquatic Life Use 2 Class II waters and
500	aquatic preserves, provided no dredging or filling is necessary.
501	Section 14.  This act shall take effect July 1, 2011.

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