The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/CS/SB 1426
INTRODUCER: Appropriations Committee (Recommended by Appropriations Subcommittee on
Agriculture, Environment, and General Government); Environment and Natural
Resources Committee; and Senator Burgess
SUBJECT: Environmental Management
DATE: March 2, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Carroll Rogers EN Fav/CS
2. Reagan Betta AEG Recommend: Fav/CS
3. Reagan Sadberry AP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1426 creates the concept of water quality enhancement areas (WQEAs). A WQEA is
a natural system that is constructed, operated, managed, and maintained pursuant to a permit to
provide offsite, compensatory, regional treatment within an identified enhancement service area
and enhancement credits.
The bill provides that construction, operation, management, and maintenance of a WQEA must
be approved through the environmental resource permitting (ERP) process. The bill sets out
requirements for a water quality credit program based on the development of WQEAs and
authorizes the Department of Environmental Protection (DEP) to develop rules to implement the
program. Water quality enhancement credits may be sold only to governmental entities.
The bill makes clarifications regarding incentives for the use of graywater technologies.
According to the DEP, the department would incur costs from operating the WQEA program, as
the program would need eight additional staff members and associated travel. The total financial
impact for these positions including salaries, benefits, expenses, and travel costs would be
approximately $878,275 annually.
BILL: CS/CS/SB 1426 Page 2
II. Present Situation:
Water Quality and Nutrients
Phosphorous and nitrogen are naturally present in water and are essential nutrients for the
healthy growth of plant and animal life.1 The correct balance of both nutrients is necessary for a
healthy ecosystem; however, excessive amounts can cause significant water quality problems.
Phosphorous and nitrogen are derived from natural and human-made sources. Human-made
sources include sewage disposal systems (wastewater treatment facilities and septic systems),
overflows of storm and sanitary sewers (untreated sewage), agricultural production and irrigation
practices, and stormwater runoff.2
Excessive nutrient loads may result in harmful algal blooms, nuisance aquatic weeds, and the
alteration of the natural community of plants and animals. Dense, harmful algal blooms can also
cause human health problems, fish kills, problems for water treatment plants, and impairment of
the aesthetics and taste of waters. Growth of nuisance aquatic weeds tends to increase in nutrient-
enriched waters, which can impact recreational activities.3
Total Maximum Daily Loads
A total maximum daily load (TMDL), which must be adopted by rule, is a scientific
determination of the maximum amount of a given pollutant that can be absorbed by a waterbody
and still meet water quality standards.4 Waterbodies or sections of waterbodies that do not meet
the established water quality standards are deemed impaired. Pursuant to the federal Clean Water
Act, the Department of Environmental Protection (DEP) must establish a TMDL for impaired
waterbodies.5 A TMDL for an impaired waterbody is the sum of the individual waste load
allocations for point sources and the load allocations for nonpoint sources and natural
background.6 Point sources are discernible, confined, and discrete conveyances including pipes,
ditches, and tunnels. Nonpoint sources are unconfined sources that include runoff from
agricultural lands or residential areas.7
1
U.S. Environmental Protection Agency (EPA), Sources and Solutions, https://www.epa.gov/nutrientpollution/sources-and-
solutions (last visited Jan. 26, 2022).
2
Id.
3
EPA, The Issue, https://www.epa.gov/nutrientpollution/problem (last visited Jan. 26, 2022).
4
Department of Environmental Protection (DEP), Total Maximum Daily Loads Program, https://floridadep.gov/dear/water-
quality-evaluation-tmdl/content/total-maximum-daily-loads-tmdl-program (last visited Jan. 26, 2022).
5
Section 403.067(1), F.S.
6
Section 403.031(21), F.S.
7
Fla. Admin. Code R. 62-620.200(37). “Point source” is defined as “any discernible, confined, and discrete conveyance,
including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding
operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.”
Nonpoint sources of pollution are sources of pollution that are not point sources. Nonpoint sources can include runoff from
agricultural lands or residential areas; oil, grease and toxic materials from urban runoff; and sediment from improperly
managed construction sites.
BILL: CS/CS/SB 1426 Page 3
Basin Management Action Plans and Best Management Practices
The DEP is the lead agency in coordinating the development and implementation of TMDLs. 8
Basin management action plans (BMAPs) are one of the primary mechanisms DEP uses to
achieve TMDLs. BMAPs are plans that address the entire pollution load, including point and
nonpoint discharges,9 for a watershed or a specific waterbody. BMAPs generally include:
 Permitting and other existing regulatory programs, including water quality based effluent
limitations;
 Best management practices (BMPs) and non-regulatory and incentive-based programs,
including cost-sharing, waste minimization, pollution prevention, agreements, and public
education;
 Public works projects, including capital facilities; and
 Land acquisition.10
A BMAP equitably allocates pollutant reductions to individual basins, to all basins as a whole, or
to each identified point source or category of nonpoint sources.11 Then, the BMAP establishes
the schedule for implementing projects and activities to meet the pollution reduction allocations.
The BMAP development process provides an opportunity for local stakeholders, local
government, community leaders, and the public to determine and share water quality cleanup
responsibilities collectively.12
BMAPs must include milestones for implementation and water quality improvement.13 They
must also include an associated water quality monitoring component sufficient to evaluate
whether reasonable progress in pollutant load reductions is being achieved over time. An
assessment of progress toward these milestones must be conducted every five years, and
revisions to the BMAP must be made as appropriate.14
Producers of nonpoint source pollution included in a BMAP must comply with the established
pollutant reductions by either implementing the appropriate BMPs or by conducting water
quality monitoring.15 A nonpoint source discharger may be subject to enforcement action by the
DEP or a water management district (WMD) based on a failure to implement these
requirements.16 BMPs are designed to reduce the amount of nutrients, sediments, and pesticides
8
Section 403.061, F.S. DEP has the power and the duty to control and prohibit pollution of air and water in accordance with
the law and rules adopted and promulgated by it. Furthermore, s. 403.061(21), F.S., allows DEP to advise, consult, cooperate,
and enter into agreements with other state agencies, the federal government, other states, interstate agencies, etc.
9
Fla. Admin. Code R. 62-620.200(37). “Point source” is defined as “any discernible, confined, and discrete conveyance,
including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding
operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged.”
Nonpoint sources of pollution are sources of pollution that are not point sources.
10
Section 403.067(7), F.S.
11
Id.
12
DEP, Basin Management Action Plans (BMAPs), https://floridadep.gov/dear/water-quality-restoration/content/basin-
management-action-plans-bmaps (last visited Dec. 4, 2019).
13
Section 403.067(7)(a)6., F.S.
14
Id.
15
Section 403.067(7)(b)2.g., F.S. For example, BMPs for agriculture include activities such as managing irrigation water to
minimize losses, limiting the use of fertilizers, and waste management.
16
Section 403.067(7)(b)2.h., F.S.
BILL: CS/CS/SB 1426 Page 4
that enter the water system and to help reduce water use. BMPs are developed for agricultural
operations as well as for other activities, such as nutrient management on golf courses, forestry
operations, and stormwater management.17 The graphic below shows the state’s BMAPs.18
Reasonable Assurance Plans
The U.S. Environmental Protection Agency allows states to place certain impaired waterbodies
into Category 4b for Clean Water Act section 303(d) reporting purposes, meaning that the
establishment of a TMDL is not required for an impaired waterbody if other required control
measures are expected to result in the attainment of water quality standards in a reasonable
period of time.19
A Reasonable Assurance Plan (RAP) is a control measure that the DEP may implement for
Category 4b impaired waterbodies.20 The DEP first determines if a waterbody is impaired or may
be reasonably expected to become impaired within the next five years.21 If a waterbody fits this
criteria, the DEP evaluates whether existing or proposed technology-based effluent limitations
and other pollution control programs are sufficient to result in the attainment of water quality
17
DEP, NPDES Stormwater Program, https://floridadep.gov/Water/Stormwater (last visited Jan. 26, 2022).
18
DEP, Impaired Waters, TMDLs, and Basin Management Action Plans Interactive Map, https://floridadep.gov/dear/water-
quality-restoration/content/impaired-waters-tmdls-and-basin-management-action-plans (last visited Jan. 26, 2022).
19
Id.; EPA, EPA Integrated Reporting (IR) Categories and How ATTAINS Calculates Them, 1 (Aug. 31, 2018) available at
https://www.epa.gov/sites/default/files/2018-09/documents/attains_calculations_of_epa_ir_categories_2018-08-31.pdf (last
visited Jan. 27, 2022).
20
DEP, Alternative Restoration Plans, https://floridadep.gov/DEAR/Alternative-Restoration-Plans (last visited Jan. 27,
2022).
21
Fla. Admin. Code R. 62-303.600.
BILL: CS/CS/SB 1426 Page 5
standards. If the waterbody is expected to attain water quality standards in the future and to make
reasonable progress towards attainment of those standards in a certain timeframe, the waterbody
will not require a TMDL. The DEP’s decision must be based on a plan that provides reasonable
assurance that proposed pollution control mechanisms and expected water quality improvements
in the waterbody will attain water quality standards.22 The graphic on the right shows the RAP
boundaries in the outlined areas without a grid.23
Planning Units
A planning unit is either an individual large tributary basin or a group of smaller adjacent
tributary basins with similar characteristics.24 Planning units help organize information and
management strategies around prominent watershed characteristics, and they provide a more
detailed geographic basis for identifying and assessing water quality improvement activities.25
The graphic on the next page shows the state’s planning units.26
22
Id.
23
DEP, Restoration Plans,
https://fdep.maps.arcgis.com/apps/View/index.html?appid=5a34b0e9d46447559b52d8267083596f (last visited Jan. 28,
2022).
24
DEP, TMDL Planning Units, https://geodata.dep.state.fl.us/datasets/c97e066f49044131a13a79f5beeeaf40_6/about (last
visited Jan. 27, 2022).
25
Id.
26
DEP, TMDL Planning Units, Geospatial Open Data, https://geodata.dep.state.fl.us/datasets/FDEP::total-maximum-daily-
load-tmdl-planning-units/explore?location=27.664924%2C-83.725800%2C7.00 (last visited Jan. 28, 2022).
BILL: CS/CS/SB 1426 Page 6
Stormwater Management
Stormwater is the flow of water resulting from, and immediately following, a rainfall event. 27
When stormwater falls on pavement, buildings, and other impermeable surfaces, the runoff flows
quickly and can pick up sediment, trash, chemicals, and other pollutants.28 Stormwater is a major
source of water pollution in Florida.29
The regulatory programs that address reductions in water quality caused by stormwater are the
federal National Pollution Discharge Elimination System (NPDES), which regulates discharges
of pollutants into waters of the United States,30 and the state Environmental Resource Permitting
(ERP) Program, which regulates activities involving the alteration of surface water flows.31
27
DEP and Water Management Districts, Environmental Resource Permit Applicant’s Handbook Volume I (General and
Environmental), 2-10 (June 1, 2018), available at
https://www.swfwmd.state.fl.us/sites/default/files/medias/documents/Appliicant_Hanbook_I_-_Combined.pd_0.pdf.
28
DEP, Stormwater Management, 1 (2016), available at https://floridadep.gov/sites/default/files/stormwater-
management_0.pdf. When rain falls on fields, forests, and other areas with naturally permeable surfaces the water not
absorbed by plants filters through the soil and replenishes Florida’s groundwater supply.
29
DEP, Stormwater Support, https://floridadep.gov/water/engineering-hydrology-geology/content/stormwater-support (last
visited Oct. 6, 2021); DEP, Nonpoint Source Program Update, 10 (2015), available at
https://floridadep.gov/sites/default/files/NPS-ManagementPlan2015.pdf.
30
National Pollutant Discharge Elimination System (NPDES), 33 U.S.C. s. 1342 (2019); 40 C.F.R. pt. 122; Under the Clean
Water Act, the U.S. Environmental Protection Agency authorizes the NPEDS permit program to state, tribal, and territorial
governments, enabling them to perform many of the permitting, administrative, and enforcement aspects of the program.
EPA, About NPDES, https://www.epa.gov/npdes/about-npdes#overview (last visited Jan. 27, 2022).
31
Chapter 373, pt. IV, F.S.; Fla. Admin. Code Ch. 62-330.
BILL: CS/CS/SB 1426 Page 7
The NPDES regulates stormwater pollution from certain municipal storm sewer systems and
runoff from certain construction and industrial activities.32 The state’s ERP program regulates
activities that create stormwater runoff, as well as dredging and filling in wetlands and other
surface waters.33 ERPs aim to prevent flooding, protect wetlands and other surface waters, and
protect water quality from stormwater pollution.34 The DEP, the WMDs, and local governments
implement the ERP program.35
The DEP and the WMDs may require ERPs and impose reasonable conditions:
 To ensure that construction or alteration of stormwater management systems and related
structures is consistent with applicable law and not harmful to water resources;36 and
 For the maintenance or operation of such structures.37
The DEP’s stormwater rules are technology-based effluent limitations, rather than water quality-
based effluent limitations.38 This means that stormwater rules rely on design criteria for BMPs to
achieve a performance standard for pollution reduction, rather than specifying the amount of a
specific pollutant that may be discharged to a waterbody and still ensure that the waterbody
attains water quality standards.39 The rules contain minimum stormwater treatment performance
standards, which require design and performance criteria for new stormwater management
systems to achieve at least 80 percent reduction of the average annual load of pollutants that
would cause or contribute to violations of state water quality standards.40
The DEP and the WMDs require applicants to provide reasonable assurance that state water
quality standards will not be violated.41 If a stormwater management system is designed in
accordance with the stormwater treatment requirements and criteria adopted by the DEP or the
WMDs, then the system design is presumed not to cause or contribute to violations of applicable
state water qual