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Publication #FE608

Handbook of Florida Water Regulation: Florida Watershed Restoration Act1

Michael T. Olexa, Tatiana Borisova, and Sean Crisafulli2

Preface

This handbook is designed to provide an accurate, current, and authoritative summary of the principal federal and state (Florida) laws that directly or indirectly relate to agriculture. This handbook provides a basic overview of the many rights and responsibilities that farmers and farmland owners have under both federal and state laws as well as the appropriate contact information to obtain more detailed information. However, the reader should be aware that because the laws, administrative rulings, and court decisions on which this handbook is based are subject to constant revision, portions of this publication could become outdated at any time. Several details of cited laws are also left out due to space limitations.

This handbook is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice, and the information contained herein should not be regarded as a substitute for professional advice. This handbook is not all inclusive in providing information to achieve compliance with the federal and state laws and regulations governing water protection. For these reasons, the use of these materials by any person constitutes an agreement to hold harmless the authors, the UF/IFAS Center for Agricultural and Natural Resource Law, the Florida Cooperative Extension Service, the Institute of Food and Agricultural Sciences, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this handbook.

FWRA Overview

The Florida Legislature enacted the Florida Watershed Restoration Act (FWRA) in 1999 to protect Florida's waters through the Total Maximum Daily Load (TMDL) program as required by the federal Clean Water Act (CWA). The TMDL program protects state waters by coordinating the control of pollution from point sources (i.e., sources discharging through a discrete conveyance, such as a pipe, as well as urban stormwater conveyance outfalls) and nonpoint sources (i.e., sources contributing to pollution caused by rainfall moving over and through the ground). FWRA also establishes a process to identify and list impaired waters throughout the state.

TMDL is the total of the individual discharge allocations for point sources and the discharge allocations for nonpoint sources and natural background. Furthermore, TMDL can also refer to a document that describes the discharge allocations. An implementation plan must be developed describing how the point and nonpoint sources are planning to meet their discharge allocations. Usually, this implementation plan is referred to as Basin Management Action Plan, or BMAP.

For the list of TMDLs and BMAPs adopted in Florida, as well as for the schedule of public meetings related to TMDL and BMAP development, see the state TMDL program website at http://www.dep.state.fl.us/water/tmdl/.

Who enforces FWRA?

Under FWRA, while the Florida Department of Environmental Protection (FDEP) is the lead agency in establishing TMDLs, the primary enforcement power is actually split between FDEP and the Florida Department of Agriculture and Consumer Services (FDACS). FDEP is the lead agency for enforcing FWRA when addressing point source and nonagricultural nonpoint source pollution. FDACS is the lead agency for enforcing FWRA when it comes to agricultural nonpoint source pollution.

FWRA is unique in the establishment of TMDLs because it allows FDEP to address TMDLs through a watershed management approach in which water resources are managed based on natural boundaries instead of political or regulatory boundaries.

What are the duties of FDEP and FDAC under FWRA?

Under FWRA, FDEP is required to coordinate with the Florida water management districts (FWMD), FDACS, Soil and Water Conservation Districts, environmental groups, regulated parties, and local stakeholders during all phases of the TMDL process, which includes

  • Development of a total maximum daily load assessment. The assessment methodology for determining those waters that are impaired (i.e., fail to meet the water quality standards assigned to them based on waters’ designated uses) should be adopted by FDEP by rule. The methodology should include determination of what information is required for the TMDL assessment, the acceptable methods of data collection, and analysis and quality control requirement.

  • Development of an approved list of those water bodies or segments for which total maximum daily loads will be calculated. FDEP must also specify schedules for TMDL load calculations for specific water bodies or segments, and identify the pollutant causing the water quality impairment.

  • Calculation and allocation of a total maximum daily load. TMDL is the total amount of pollution discharge from all sources that a water body can assimilate and still meet water quality standards. TMDL should account for seasonal variations and include a margin of safety to reflect uncertainties about pollution loading effects on water quality. TMDL should be allocated among pollution sources in a reasonable and equitable manner (accounting for the availability of treatment technologies and the existing treatment levels, and the costs and benefits of achieving allocation).

FDEP in coordination with FWMD may develop a BMAP to achieve TMDL. BMAP can include such strategies as construction of regional treatment systems (STA) or voluntary trading of water quality credits. FWRA encourages broad involvement of interested parties in BMAP development aimed at achieving consensus and cooperation with proposed TMDL implementation strategies. BMAPs should include water quality improvement milestones, and the progress with achieving these milestones should be evaluated every five years.

FDEP can implement TMDLs under existing water quality protection programs, such as

  • Permitting and other existing regulatory programs, such as water-quality-based effluent limitations

  • Non-regulatory and incentive-based programs, such as cost-share, best management practices, and public education

  • Trading of water quality credits or other agreements

  • Public works, including capital facilities

  • Land acquisition

What are the requirement under FWRA?

Most point sources discharging pollutants into Florida waters need to have National Pollutant Discharge Elimination System (NPDES) permits. For a nonpoint source, appropriate best management practices (BMPs) must be implemented, or water quality monitoring should be conducted. BMPs may be supplemented by water quality credit trades. Specifically, a point or nonpoint source that achieves a greater pollutant reduction than required can trade those water quality credits to other sources in the area addressed by the same action plan. A source generating credits is still required to meet all other applicable requirements, including NPDES technology requirements and BMPs.

FDEP must consult with the appropriate FWMD and interested parties to develop suitable temporary measures, BMPs, or other measures to achieve the level of pollution reduction established by FDEP for nonagricultural nonpoint pollutant sources. These practices and measures may be adopted by rule by FDEP and FWMDs, and, when adopted in this manner, the parties responsible for the nonagricultural nonpoint source pollution must implement these practices and measures.

FDACS may develop and adopt by rule suitable temporary measures, BMPs, or other measures to achieve the level of pollution reduction established by FDEP for agricultural nonpoint sources. FDACS must consult with FDEP, FDOH (Florida Department of Health), FWMDs, affected farmers, and environmental groups in this development process. The effectiveness of suitable temporary measures, BMPs, or other measures to achieve the level of pollution reduction must be verified by FDEP. These practices and measures may be implemented by those parties responsible for agricultural pollutant sources in coordination with FDEP, FDACS, and FWMDs. BMP implementation is mandatory for agricultural operations in areas with an established TMDL. In such areas, farmers are required to file a Notice of Intent (NOI) about BMP implementation to FDACS, or conduct water quality monitoring to prove that they are not violating water quality standards (see AE388, Total Maximum Daily Loads and Agricultural BMPs in Florida)

For the list of BMP manuals adopted by FDACS for different agricultural operations and geographical regions, see the FDACS Office of Agricultural Water Policy website at http://www.freshfromflorida.com/Divisions-Offices/Agricultural-Water-Policy.

There are advantages to the implementation of BMPs, temporary measures, or other measures to achieve the level of pollution reduction. If the effectiveness of these measures is verified, their implementation will provide a presumption of compliance with state water quality standards and a release from liability such that FDEP cannot institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of ground or surface water caused by the pollutant.

Source

Chapter 403, Florida Statutes, Section 304.067

Acknowledgments

The authors are indebted to the personnel of both state and federal agencies who provided their time and advice in the preparation of this handbook. We wish to acknowledge Carol Fountain and Travis Prescott at the University of Florida for their assistance in editing this handbook.

Footnotes

1.

This is EDIS document FE608, a publication of the Food and Resource Economics Department, UF/IFAS Extension, Gainesville, FL. Published December 2005, revised June 2011 and April 2015. Please visit the EDIS website at http://edis.ifas.ufl.edu.

2.

Michael T. Olexa, professor, Food and Resource Economics Department, and director, UF/IFAS Center for Agricultural and Natural Resource Law, University of Florida, UF/IFAS Extension, Gainesville, FL, and member of The Florida Bar. Tatiana Borisova, assistant professor, Food and Resource Economics Department, University of Florida, UF/IFAS Extension, Gainesville, FL. Sean Crisafulli, student, Levin College of Law, University of Florida, Gainesville, FL.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.