HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 965 Environmental Management
SPONSOR(S): State Affairs Committee, Agriculture & Natural Resources Appropriations Subcommittee,
Environment, Agriculture & Flooding Subcommittee, Truenow and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1426
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Environment, Agriculture & Flooding 16 Y, 1 N, As CS Gawin Moore
Subcommittee
2) Agriculture & Natural Resources Appropriations 12 Y, 0 N, As CS White Pigott
Subcommittee
3) State Affairs Committee 22 Y, 0 N, As CS Gawin Williamson
SUMMARY ANALYSIS
The Department of Environmental Protection (DEP) regulates activities in, on, or over surface waters, as well
as any activity that alters surface water flows, through environmental resource permits (ERPs). ERPs are
required for development or construction activities typically involving the dredging or filling of surface waters,
construction of flood protection facilities, building dams or reservoirs, or any other activities that affect state
waters. The federal Clean Water Act requires states to maintain the quality of their waters. In Florida, water
quality is addressed through water quality standards, total maximum daily loads, basin management action
plans (BMAPs), and permits. Water quality trading is a market-based approach that can be used to attain water
quality improvements. Water quality trading allows one source of pollution to control a pollutant at levels
greater than required and sell credits to another source, the buyer, which uses the credits to supplement their
level of water treatment in order to comply with regulatory requirements.
The bill authorizes the creation of water quality enhancement areas (WQEAs), which are defined as natural
systems constructed, operated, managed, and maintained for the purpose of providing offsite regional
treatment for which enhancement credits may be provided. In addition, the bill requires the construction,
operation, management, and maintenance of a WQEA be approved through the ERP permitting process and
requires a WQEA to address the contributions of pollutants or constituents within a specific area determined by
DEP that does not meet state water quality criteria.
To obtain a WQEA permit, the bill requires an applicant to provide certain reasonable assurances about the
proposed WQEA and to propose a performance and success criteria monitoring and verification plan. The bill
also requires that the WQEA permit provide for the assessment, valuation, and award of credits based on units
of pollutants removed.
The bill specifies that a WQEA may only provide enhancement credits in an enhancement service area
determined by DEP and specifies that enhancement credits may only be sold to governmental entities. The bill
requires DEP or the water management districts to authorize the sale and use of enhancement credits to
address adverse water quality impacts of permitted activities or to assist governmental entities seeking to meet
certain required reductions assigned in a BMAP or Reasonable Assurance Plan.
The bill specifies that whether or not a dwelling is owner occupied is not an eligibility criterion for a developer or
homebuilder to receive density or intensity bonuses for implementing graywater technologies.
The bill provides an appropriation of nine full-time equivalent positions with associated salary rate of 479,000
and $878,275 in recurring funds from the General Revenue Fund to DEP to implement the bill.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Environmental Resource Permits
State law provides that a water management district (WMD) or the Department of Environmental
Protection (DEP) may require an environmental resource permit (ERP) and impose reasonable
conditions necessary to assure the construction or alteration of any stormwater management system, 1
dam,2 impoundment,3 reservoir,4 appurtenant work,5 or works 6 complies with state law and applicable
rules and will not be harmful to water resources.7 A person proposing such construction or alteration
must apply to the WMD or DEP for an ERP permit authorizing the construction or alteration. The
application must contain the applicant’s name and address, the name and address of the owner of the
land where the works are to be constructed, a legal description of the land, location of the work,
sketches of construction, name and address of the person who prepared the plans and specifications of
construction, and the person who will construct the proposed work, general purpose of the proposed
work, and other information as DEP or the WMD may require.8
Water Quality
The Clean Water Act (CWA) requires states to adopt water quality standards (WQS) for navigable
waters.9 The CWA also requires states to develop lists of water bodies that do not meet WQS, which
are called impaired waters. States must then develop a total maximum daily load (TMDL) for the
particular pollutants causing the impairment. The TMDL is the maximum allowable amount of the
pollutants the water body can receive while still maintaining WQS. 10
Total Maximum Daily Loads
The Florida Watershed Restoration Act guides the development and implementation of TMDLs. 11
TMDLs must include reasonable and equitable pollutant load allocations between or among point
sources (e.g., pipes and culverts discharging from a permitted facility, such as a domestic wastewater
treatment facility) and nonpoint sources (e.g., agriculture, septic tanks, golf courses) that will alone, or
in conjunction with other management and restoration activities, reduce pollutants and achieve WQS. 12
The allocation must consider cost-effective approaches coordinated between contributing point and
nonpoint sources of pollution for impaired water bodies and may include both non-regulatory and
incentive-based programs.13 However, under the Florida Watershed Restoration Act, DEP is not
1 Section 373.403(10), F.S., defines “stormwater management system” to mean a system designed and constructed or implemented to
control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use,
or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affec t the
quantity and quality of discharges from the system.
2 Section 373.403(1), F.S., defines “dam” to mean any artificial or natural barrier, with appurtenant works, raised to obstruct or
impound, or which does obstruct or impound, any of the surface waters of the state.
3 Section 373.403(3), F.S., defines “impoundment” to mean any lake, reservoir, pond, or other conta inment of surface water occupying
a bed or depression in the earth’s surface and having a discernible shoreline.
4 Section 373.403(4), F.S., defines “reservoir” to mean any artificial or natural holding area which contains or will contain t he water
impounded by a dam.
5 Section 373.403(2), F.S., defines “appurtenant works” to mean any artificial improvements to a dam that might affect the safe ty of
such dam or, when employed, might affect the holding capacity of such dam or of the reservoir or impoundment c reated by such dam.
6 Section 373.403(5), F.S., defines “works” to mean all artificial structures, including, but not limited to, ditches, canals, conduits,
channels, culverts, pipes, and other construction that connects to, draws water from, drains water into, or is placed in or across the
waters in the state.
7 Section 373.413(1), F.S.
8 Section 373.413(2), F.S.
9 33 U.S.C. s. 1313.
10 33 U.S.C. s. 1313; see s. 403.067, F.S.
11 Section 403.067, F.S.; ch. 99-223, Laws of Fla.
12 Section 403.067(6)(b), F.S.
13 Section 403.067(1), F.S.
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 required to develop a TMDL if there is existing reasonable assurance that there are existing or
proposed pollution control mechanisms or programs that will effectively address the impairment. 14
Basin Management Action Plans
DEP is the lead agency coordinating the development and implementation of TMDLs.15 Once a TMDL
is adopted,16 DEP may develop and implement a basin management action plan (BMAP), which is a
restoration plan for the watersheds and basins connected to the impaired water body. 17 A BMAP must
integrate appropriate management strategies available to the state through existing water quality
protection programs to achieve the TMDL.18 The BMAP must also include milestones for
implementation and water quality improvement, and associated water quality monitoring, which
determine whether there has been reasonable progress in pollutant load reductions. DEP must assess
progress every five years, and revisions to the BMAP must be made as appropriate. 19
For point source discharges, any management strategies and pollutant reduction requirements
associated with a TMDL must be incorporated into subsequent permits or permit modifications. DEP
may not impose limits or conditions implementing an adopted TMDL in a permit until the permit expires,
the discharge is modified, or the permit is reopened pursuant to an adopted BMAP.20
A best management practice (BMP) is a practice or combination of practices adopted by rule by the
Department of Agriculture and Consumer Services, DEP, or the applicable WMD as an effective and
practicable means for reducing nutrient inputs and improving water quality, taking into account
economic and technological considerations.21 Where there is an adopted BMP for a nonpoint source,
the BMAP must require the nonpoint source to implement the applicable BMPs. The nonpoint source
discharger must demonstrate compliance with BMP implementation or conduct water quality monitoring
prescribed by DEP or the WMD. If the discharger fails to demonstrate compliance, the discharger may
be subject to enforcement action.22
The adopted BMAPs are illustrated in the graphic below: 23
14 DEP, Restoration Plan Guidance (June 2015), 2, available at https://floridadep.gov/sites/default/files/4b4ePlansGuidance.pdf (last
visited Jan. 24, 2022).
15 Section 403.061, F.S. DEP has the power and the duty to control and proh ibit pollution of air and water in accordance with the law
and rules adopted and promulgated by it. Section 403.061(22), F.S., allows DEP to advise, consult, cooperate, and enter into
agreements with other state agencies, the federal government, other stat es, interstate agencies, etc.
16 Section 403.067(6)(c), F.S.
17 Section 403.067(7)(a)1., F.S.
18 Id.
19 Section 403.067(7)(a)6., F.S.
20 Section 403.067(7)(b)2., F.S.
21 Rule 62-306.200(2), F.A.C.; defines “best management practice” as a practice or combination of practices adopted by rule by the
Department of Agriculture and Consumer Services, DEP, or the applicable WMD as an effective and practicable means for reducing
nutrient inputs and improving water quality, taking into account economic and technological c onsiderations.
22 Sections 403.067(7)(b)2.g. and 2.h., F.S.
23 DEP, Impaired Waters, TMDLs, and Basin Management Action Plans Interactive Map , available at
https://floridadep.gov/dear/water-quality-restoration/content/impaired-waters-tmdls-and-basin-management-action-plans (last visited
Jan. 23, 2022).
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 Reasonable Assurance Plans
The United States Environmental Protection Agency (EPA) 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 WQS in a reasonable period of time.24
A Reasonable Assurance Plan (RAP) is a control measure that DEP may implement for Category 4b
impaired waterbodies.25 DEP first determines if a waterbody is impaired or may be reasonably expected
to become impaired within the next five years.26 If a waterbody fits this criterion, DEP evaluates whether
existing or proposed technology-based effluent limitations and other pollution control programs are
sufficient to result in the attainment of WQS. If the waterbody is expected to attain WQS in the future
and to make reasonable progress towards attainment of those standards in a certain timeframe, the
waterbody will not require a TMDL. 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 WQS.27 Currently, RAPs exist for the Florida Keys; Lake Seminole; Shell, Prairie,
and Joshua Creeks; Tampa Bay Estuary; and Mosquito Lagoon.28
24 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. 28, 2022).
25 DEP, Alternative Restoration Plans, https://floridadep.gov/DEAR/Alternative-Restoration-Plans (last visited Jan. 28, 2022).
26 Rule 62-303.600, F.A.C.
27 Rule 62-303.600, F.A.C.
28 DEP, Reasonable Assurance Plans (RAPs) Category 4b Assessments and Documentation , https://floridadep.gov/dear/alternative-
restoration-plans/content/reasonable-assurance-plans-raps-category-4b-assessments (last visited Jan. 26, 2022).
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 Stormwater Management
Stormwater is the flow of water resulting from, and immediately following, a rainfall event.29 When
stormwater falls on pavement, buildings, and other impermeable surfaces, the runoff flows quickly and
can pick up sediment, trash, chemicals, and other pollutants. 30 Stormwater is a major source of water
pollution in Florida.31
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 U.S.,32 and the state’s ERP program.33 NPDES regulates stormwater pollution from
certain municipal storm sewer systems and runoff from certain construction and industrial activities. 34
The state’s ERP program regulates activities that create stormwater runoff, as well as dredging and
filling in wetlands and other surface waters.35 ERPs aim to prevent flooding, protect wetlands and other
surface waters, and protect water quality from stormwater pollution. 36 DEP, the WMDs, and local
governments implement the ERP program.37
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 38 and is for the maintenance or operation of such structures.39
DEP’s stormwater rules are technology-based effluent limitations, rather than water quality-based
effluent limitations.40 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 WQS.41 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 WQS.42
29 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. (last visited Jan.
28, 2022).
30 DEP, Stormwater Management, 1 (2016), available at https://floridadep.gov/sites/default/files/stormwater-management_0.pdf. (last
visited Jan. 28, 2022). 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.
31 DEP, Stormwater Support, https://floridadep.gov/water/engineering-hydrology-geology/content/stormwater-support (last visited
Jan. 28, 2022); DEP, Nonpoint Source Program Update, 10 (2015), available at https://floridadep.gov/sites/default/files/NPS-
ManagementPlan2015.pdf. (last visited Jan. 28, 2022).
32 National Pollutant Discharge Elimination System (NPDES), 33 U.S.C. s. 1342 (2019); 40 C.F.R. pt. 122; Under the CWA, the EPA
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. 28, 2022).
33 Chapter 373, pt. IV, F.S.; Rule 62-330, F.A.C.
34 Stormw