Background

     Prior to 1972, states exercised authority over the protection of purely intrastate waters through water quality standards and common law doctrines. Viewed as a resource for waste assimilation, those who used the resource logically had control over efforts to ensure water quality. While logical and widely supported from its inception, this approach failed to offer the desired level of protection as the political climate changed in the early 1970’s. Faced with ubiquitous deteriorating water quality in 1972, the US Congress adopted a new strategy for water pollution control. The resulting provisions developed as a tradeoff between the Senate, which unanimously favored technology-based standards, and the House of Representatives which primarily favored water quality standards-based approaches. Section 303(d) of the Clean Water Act (33 U.S.C. § 1313 (d)) offered a compromise, allowing the federal government to establish technology-based effluent limitations for point source dischargers while preserving state authority over the establishment of water quality standards.

     Section 303(d) has a simple logic. If technology standards fail to adequately implement applicable water quality standards, states must identify the impaired water bodies or water body segments. Once identified, the waters are prioritized according to the severity of the pollution and their designated use. A total maximum daily load (TMDL) for the specific pollutant causing the violation will be developed to implement the standard. Each TMDL will account for seasonal variability and a margin of safety to accommodate any lack of knowledge concerning the relationship between effluent limitations and water quality. Furthermore, states are required to submit the list and established loads to the Administrator from time to time.

      While providing a clearly prescribed mandate, Section 303(d) remained largely ignored for well over a decade. However, in the early 1980’s a series of citizen suits forced EPA to establish TMDLs when states refused to act. In Scott v. City of Hammond, 741 F.2d 992 (7^th Cir. 1984), the Seventh Circuit reasoned that a prolonged failure of a state to submit TMDLs amounted to a "constructive submission" of no TMDLs, requiring EPA to act if the submission proved inadequate. A series of similar suits followed, forcing EPA to take action if a state had taken none. Yet if a state had taken some action, the constructive submission theory frequently failed. In recent cases, including; Sierra Club v. Hankinson, 939 F. Supp 872 (N.D. Ga. 1996), minimal state effort prompted tighter schedules for completing the TMDL process. Because of similar deficiencies, numerous suits are active nationwide. In April 1998, Earthjustice Legal Defense Fund filed a civil action on behalf of the Florida Wildlife Federation and others, alleging that EPA had failed to enforce Florida’s obligations under Section 303(d). Settlement negotiations are ongoing.

CS/SB 2282 and CS/HB 2067

     Since 1992, DEP has submitted four lists of waters which potentially are nonattainment for water quality standards, each with increasing numbers and tighter schedules for implementation. The 1998 list received final EPA approval with 709 potentially impaired waters and a thirteen-year schedule for TMDL development and implementation. Recognizing the need for quality assurance and cost-effectiveness, the Florida Legislature responded in 1999 with CS/SB 2282 and CS/HB 2067. The bills contained identical language, creating the "Florida Watershed Restoration Act" within Chapter 403, Florida Statutes (F.S.). The Act becomes effective upon becoming law. The bills amended Section 403.031, F.S., and created Section 403.067, F.S. The amendment added the definition of total maximum daily load, which is defined to include the sum of wasteload allocations for point sources and load allocations for nonpoint sources and natural background conditions. Section 403.067, F.S., created a complex and time-intensive process with numerous points of entry for TMDL development and implementation.

     The Act’s Legislative Findings mandate a cost-effective approach coordinated between contributing point and nonpoint sources. Furthermore, DEP is clearly charged with responsibility for overseeing the program in cooperation with the water management districts (WMDs), the Department of Agriculture and Consumer Services (DACS), local soil and water conservation districts, environmental groups, and regulated interests. However, the Act merely provides DEP with the statutory authority to conduct TMDL assessments according to the initial priority listing. The Act does not necessarily compel DEP to develop TMDLs for all 709 waterbodies. In fact, the Act’s considerations virtually guarantee a reduction in waters listed. These procedures create two lists, one initially submitted to EPA committing DEP to assessing the need for TMDLs and one for which TMDLs will be established. Having not undergone the prescribed procedures, the initial listing cannot be used in the implementation of any regulatory program.

      The assessment methodology for determining if waterbodies are impaired must be developed by rule. A nonattainment determination is to be based on objective, credible data, studies and reports, including Surface Water Improvement and Management (SWIM) plans and Pollution Load Reduction Goals (PLRG’), if available. In determining that a water body is impaired, DEP must specify the particular pollutant and the concentration causing the impairment. If numeric standards have been established, narrative or biological criteria may not be used without sufficient justification. If a waterbody is impaired and other pollution control programs, including Everglades restoration and National Estuary Program activities are insufficient to achieve water quality compliance, then DEP will establish the second list which will include waters where a TMDL will be calculated along with a priority ranking, and a schedule. Furthermore, if it is later proven that water quality standards are being attained, the waters may be removed from the list. Likewise, if a water is later impaired, it may be added.

     The TMDL calculations will be coordinated with the appropriate local governments, WMDs, DACS, local soil and water conservation districts, environmental groups, and regulated interests. Eight specific criteria are to guide DEP during the allocation process, including: existing treatment levels and management practices; differing impacts from sources; the availability of reduction technologies or management practices; environmental, economic and technological feasibility; costs and benefits; reasonable time frames for implementation; potential applicability of moderating provisions; and the extent of nonattainment caused by interstate sources, previous alterations or discontinued discharges. Furthermore, the DEP must hold at least one public hearing in the area for which the daily load and allocations are being established.

     A variety of water quality protection programs may be used to implement TMDLs, including: regulatory and permit programs; nonregulatory and incentive-based programs; SWIM plans; legally binding and trackable pollutant trading systems and other economic programs; public works projects; and land acquisition programs. DEP intends to employ a basin planning process to coordinate the different strategies, consulting with a broad array of interests while attempting to build consensus. Point sources will implement the allocations through the NPDES permitting process. Pollutant sources exempt from permitting under Chapter 373 have the opportunity to implement their allocation through nonregulatory and incentive-based programs. Nonagricultural, nonpoint sources will be given the opportunity to implement allocations through best management practices (BMPs) established by DEP or water management district rule. DACS is given rule-making authority to establish best management practices for agricultural nonpoint sources. CS/CS/SB 908 (Florida Forever Act) earmarks $5 million for the development of best management practices, allotting $2.5 million to BMP development for agricultural nonpoint sources and $2.5 million for nonagricultural, nonpoint source BMP development. As an incentive for compliance with prescribed nonpoint source allocation methods, the Act provides a presumption of compliance with state water quality standards while limiting DEP’s ability to proceed against an owner for contamination. Additionally, TMDL implementation will not limit the applicability of mixing zones or other moderating provisions.

     The Act also creates two reporting requirements for DEP. In 2000, DEP must submit to the Governor, the President of the Senate and the Speaker of the House suggested legislation, recommending any additional considerations for developing TMDL allocations. In 2005, DEP must submit a report to the same legislative and executive members, evaluating the effectiveness of the implementation process for five years subsequent to the Act’s effective date.

Conclusion

     CS/SB 2282 and CS/HB 2067 provide DEP with the statutory authority to conduct the Total Maximum Daily Load process for the protection of a vital state resource. Upon becoming law, DEP, with cooperation from other stakeholders, will assess potentially water quality impaired areas and attempt to develop appropriate methods for their restoration. The Florida Legislature wisely recognized the potential administrative and financial burden of conducting the TMDL process for 709 waters. The "Florida Watershed Restoration Act" clearly acknowledges the need for a cost-effective and quality-assured process, preventing unnecessary listings, regulations, and economic hardship. However, given the myriad points of entry and the potential economic impacts of TMDL allocations, the establishment and implementation process for the numerous waters is likely to be time consuming and costly. Nonetheless, the public and regulated community should take comfort that their due process interests are adequately protected. The opportunities for input will help ensure that the TMDL allocations have been justified sufficiently, offering all interests the opportunity to provide a solid scientific foundation.