Florida's Water Quality Rules Under The Clean Waterways Act.

• Date: 01 July 2023
• Author: Martin, Susan Roeder

The Department of Environmental Protection (DEP) recently adopted (pending ratification) the most significant rules in its history pertaining to stormwater (1) quality. The rules will drastically alter the environmental resource permit (ERP) requirements for water quality treatment. The rules will greatly enhance water quality in Florida, but will come with a significant cost, as discussed below. Virtually everyone supported DEP's efforts to improve water quality. However, there was not consensus on how this should be accomplished or the costs for increased water quality treatment.

This article builds on the information presentedin the article, "Modernization of Stormwater Quality Rules," by Susan Roeder Martin and Karen West, published in the March/April 2021 Florida Bar Journal. (2)

Legislative Direction

Florida has recognized that storm-water-related pollution represents one of the largest potential contributors of nutrients throughout the state, especially pollution from excess nutrients. In recognition of this fact, in 2020, the legislature passed Senate Bill 712, also known as the Clean Waterways Act. (3) This legislation was passed with unanimous, bipartisan support. The legislation requires DEP and the water management districts to update the ERP stormwater design and operation regulations under F.S. Ch. 373, Part IV, using the latest scientific information. These provisions are set forth in F.S. [section]373.4131(6)(a), which required, by January 1, 2021: The department and the water management districts [to] initiate rulemaking to update the stormwater design and operation regulations, including updates to the Environmental Resource Permit Applicant's Handbook, using the most recent scientific information available. As part of rule development, the department shall consider and address low-impact design best management practices and design criteria that increase the removal of nutrients from stormwater discharges, and measures for consistent application of the net improvement performance standard to ensure significant reductions of any pollutant loadings to a water body, (emphasis added)

The net improvement performance standard referenced in above section refers to the F.S. [section]373,414(b)3, which states:

If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. Initiation of Rule Development

On November 19, 2020, (4) DEP formally began the process of developing amendments to update the ERP stormwater design and operation regulations; specifically, DEP set out to "increase the removal of nutrients from stormwater discharges, and measures for consistent application of the net improvement performance standard to ensure significant reductions of any pollutant loadings to a waterbody." (5) The rulemaking updates Fla. Admin. Cod. Ch. 62-330 and the ERP Applicant's Handbook Volume I (AHI) that applies statewide. Each of the state's five water management districts also initiated rule development, primarily to delete water quality provisions that will be addressed in AHI. (6) While DEP's rulemaking effort was widely supported, there were differences in opinion as to how to achieve improved water quality.

Technical Advisory Committee

DEP's practice in rule development is to seek stakeholder input. To do this, DEP formulated a Technical Advisory Committee (TAC) to provide public input and recommendations during the rule development process. (7) The TAC's mission was to provide a forum for identifying and outlining recommendations to strengthen the ERP stormwater design and operation regulations. The stated TAC goal "was to develop and provide consensus on stormwater rulemaking recommendations for DEP and the WMDs through public discussion and constructive deliberation." (8) Under DEP's leadership, the TAC participated in 13 meetings, beginning on December 1, 2020. DEP requested recommendations from the TAC on: 1) Changes to improve existing stormwater operation regulations to ensure water resource protection; 2) Measures for consistent application of the net improvement performance standard to ensure significant reductions of pollutant loadings to waterbodies impaired by stormwater discharges; and 3) Options for identifying stormwater design criteria and best management practices...