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Will basin management action plans restore Florida's impaired waters?

There are certain traditional American values not to be questioned--the flag, motherhood, apple pie ... and clean water. The value of clean water is not only traditional, it is instilled in our laws. The Florida Legislature declared that pollution of Florida's waters is "a menace to public health and welfare." (1) The Federal Water Pollution Control Act states that it was the national goal that the discharge of pollutants into navigable waters be eliminated by 1985. (2) Yet, to this date, many water bodies in Florida do not meet water quality standards. Based on extensive scientific study, the Florida Department of Environmental Protection (DEP) determined the amount of pollutants that can be safely discharged to many impaired water bodies without violating water quality standards. This acceptable amount of pollutants that can be assimilated into a water body is referred to as the total maximum daily load (TMDL). The Florida Legislature directed DEP to "fairly and equitably" allocate the TMDL among the dischargers of the pollutants to the impaired water bodies. This allocation program is to be implemented through basin management action plans (BMAPs). The legislation is serious about this approach, as it has directed DEP to adopt these BMAPs as final orders that are enforceable by law. As of November 2014, DEP adopted 19 BMAPs and is in the process of adopting many more. Will the BMAPs accomplish their goal and restore Florida's impaired waters? This article explores that question.

What is a Basin Management Action Plan?

While both state and federal laws established comprehensive programs to control discharge of pollutants into waters, the Florida Legislature found that many water bodies are still in need of restoration, and "better coordination" is needed to control point sources of pollution, such as industrial and wastewater facilities and nonpoint sources of pollution. (3) Nonpoint sources, such as runoff from the land draining into water bodies, have been especially difficult to control. (4) As a result, a program based on establishing the TMDLs for both point and nonpoint sources is developing in Florida. The TMDL is the amount of pollutants from all sources that impaired water bodies can assimilate without violating water quality standards. Once the TMDL is established for an impaired water body, the allowable load is to be "fairly and equitably" allocated to both nonpoint and point sources discharging to the water body. (5)

In Florida, the TMDL program set forth in F.S. [section]403.067 is known as the Watershed Protection Act. DEP is designated as the lead agency in administering the TMDL program. (6) DEP developed scientifically based methodologies to identify impaired water bodies in Florida in F.A.C. Ch. 62-303. Once the impaired water bodies are identified and verified, the list is adopted by final order. DEP then develops the TMDL for the water body. (7) The TMDLs are adopted by F.A.C.R. 62-304.

To accomplish the goal of meeting the TMDL in these impaired water bodies, the Florida Legislature directed DEP to establish a program based on watershed basins called BMAPs. (8) The BMAPs are to integrate "management strategies available to the state through existing water quality protection programs to achieve the TMDL." (9) These strategies are to include permit limits on point source discharges, urban and agricultural best management practices for nonpoint discharges, and identification and analysis of any nonregulatory projects in the basin that will reduce the pollution load. (10) A BMAP must equitably allocate pollutant reductions "between or among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities" meet the TMDL. (11) The BMAPs are adopted by DEP as an order, (12) and as such, are challengeable and enforceable the same as any other agency order adopted under F.S. Ch. 120.

What a BMAP Looks Like--An Example

Much effort, time, and cost have been and will continue to be spent in developing BMAPs in Florida. Already, DEP adopted 19 BMAPs, and continues the process to adopt many more for all of the basins containing impaired water bodies throughout the state. (13) The first BMAP, the Upper Ocklawaha River BMAP (UOR BMAP), was adopted on August 14, 2007. (14) Phase II of this BMAP was recently adopted on July 1, 2014. (15) A review of this BMAP, particularly the recently adopted Phase II version, reflects the content of many of the other BMAPs adopted by DEP.

* Identifying the Pollution Load and the Reduction Needed--The UOR BMAP addresses certain waters in the Upper Ocklawaha River Basin in central Florida that DEP identified as impaired, primarily for exceeding the nutrient standard for total phosphorus (most of the BMAPs adopted by DEP address waters impaired by nutrient or fecal coliform violations). In 2003, DEP established TMDLs for 10 impaired water bodies in this basin. Among those water bodies is Lake Apopka.

The UOR BMAP identifies the present load of pollutants, in this case, total phosphorus, which the water body is receiving and then identifies the amount of load the water body can receive and still meet water quality standards (the TMDL). The difference in the amount of load the water body is receiving, minus the amount it should be receiving (the TMDL), is the amount of load that must be reduced.

* Allocating the Pollution Load --Pursuant to F.S. [section]403.067(6)(b), the TMDL for the impaired water body must establish reasonable and equitable allocations of the TMDL between or among point and nonpoint sources. Under F.A.C.R. 62-304.500(3), DEP established a TMDL for Lake Apopka for total phosphorus at 15.9 metric tons per year. In the Lake Apopka TMDL, DEP established an initial allocation between only two entities. The only point source adding to the phosphorus load in the lake, the Winter Garden Wastewater Treatment Facility, was allocated 1.21 tons per year. The other allocation was 14.6 metric tons for all nonpoint sources adding to the phosphorus to the lake.

Phase II of the UOR BMAP states that during the upcoming phase of the BMAP process, DEP "will evaluate whether specific allocations to individual entities are needed as a tool for achieving reductions in specific water bodies or parts of the basin." (16) This nonspecific approach to allocations for nonpoint sources is common to many of the BMAPs adopted by DEP at this time.

* Identification of Management Strategies--All of the BMAPs include a list of "management strategies" or "management actions." Management strategies are the activities identified in the BMAP that entities are to implement to reduce the pollutant loading into the impaired water bodies. Therefore, their completeness and successful implementation are keys to restoring the impaired water body. However, the descriptions and deadlines for the management strategies throughout the UOR BMAP are general in nature. (17)

The UOR BMAP, as well as most of the other adopted BMAPs, considers and encourages large, publicly funded restoration projects that will reduce the load of pollutants that are impairing the water body. For example, in the management strategies listed in the UOR BMAP for Lake Apopka, DEP states that attaining water quality targets in the lake largely relies on the continuous efforts of the St. Johns River Water Management District and the Lake County Water Authority to restore the former agricultural lands around Lake Apopka and to remediate in-lake recycling of total phosphorus. (18) Because publicly funded projects reduce the load of pollutants entering the impaired water body, they have the effect of increasing the allowable pollutant load for the existing point and nonpoint dischargers of the pollutants to the water body.

* Use of Regulatory Links to Achieve the TMDL--Chapter three of the Phase II UOR BMAP is entitled "Regulatory Links and Overall Management Strategies." (19) The chapter identifies the regulatory links that can enforce the management strategies. Of the regulatory links to the BMAP enforcement, the Phase II UOR BMAP first references the Environmental Resource Permitting (ERP) program. (20) However, the analysis of the ERP program is limited. The BMAP merely notes that F.S. [section]373.414(1)(b)3 requires that an ERP applicant for a new activity affecting an impaired water body must demonstrate that the new activity will result in a net improvement in water quality. (21) There is no information about how many ERPs are impacting the 10 impaired water bodies, nor whether those ERP sites are all in compliance with the "net improvement" requirement. Nor is there any direction to determine if there are other unpermitted activities in the basin that should have ERPs, which, if brought into compliance, should provide additional reduction in the pollution load for the impaired water bodies. This limited review of the ERP program as a regulatory link is reflected in most of the other adopted BMAPs.

The Phase II UOR BMAP (as do all of the other BMAPs) refers to Florida's National Pollutant Discharge Elimination System (NPDES) permitting program as the main regulatory link to BMAP enforcement. The NPDES permitting program regulates both wastewater and stormwater point-source discharges. The Upper Ocklawaha River Basin has only one wastewater facility discharging into one of the 10 impaired water bodies, and that discharge has a waste load allocation under DEP's TMDL rule. However, there are 18 municipalities within the basin that are regulated by the Florida NPDES stormwater permitting program, referred to as Municipal Separate Storm Sewer Systems (MS4).

Not all stormwater runoff adding pollutant loads to impaired waters are from municipalities regulated by MS4 permits. F.S. [section]403.067(7) (b)2f requires that BMAPs address pollutant reduction for nonagricultural pollution sources that are not regulated by NPDES permits, i.e., that are nonpoint sources. The UOR BMAP identifies four municipalities with such nonpoint sources of discharge, but merely states that these sources may be responsible for reducing these nonpoint sources. (22) If nonagricultural nonpoint sources are permitted under other state, regional, or local water quality programs, the BMAP pollutant reduction actions must be implemented to the maximum extent practicable as part of those programs. (23)

The other nonpoint stormwater runoff not covered by the regulatory link of the MS4 permitting program is agricultural runoff. The UOR BMAP, as well as every other adopted BMAP, devotes several pages addressing how pollutant loads from agricultural operations will be addressed. The BMAP describes the requirements of F.S. [section]403.067(7), namely that agricultural nonpoint sources of pollutants must either implement BMPs, as required under Florida Department of Agriculture and Consumer Services (FDACS) requirements, or conduct water quality monitoring at the site as prescribed by DEP or the applicable water management district. The BMAP indicates that of the approximately 105,000 acres in agricultural use in the basin, only 12,000 acres of agricultural land are enrolled in the FDACS BMP program. (24) Even for those areas that are enrolled, actual implementation of the BMPs must take place to have any reduction of pollutants to the impaired waters in the basin.

Finally, DEP warns in the UOR BMAP that we should not expect that these impaired water bodies will achieve water quality standards any time soon. The original BMAP was issued in August 2007. Phase II of the UOR BMAP was issued seven years later in July 2014. In Phase II, DEP states that "achievement of the ambient [total phosphorus] water quality criteria targets may not be realized until future BMAP cycles." (25) Few deadlines are set, or even estimated, as to when water quality standards will be achieved in these impaired water bodies.

Areas for Improvement

A review of the BMAPs adopted so far by DEP indicates there are three areas in which they could further reduce pollutant load, as well as more fairly and equitably address the responsibilities of those discharging into the impaired water bodies. First, there could be a comprehensive evaluation to make sure that all the dischargers are fully complying with all the applicable water quality protection programs. Second, the BMAPs could be written as enforceable orders, identifying specifically what is to be done, setting specific deadlines, and noting the consequences of not complying with the BMAP. Third, the BMAPs could more fully address agricultural discharges to impaired waters, since it has been found that agricultural nonpoint discharges are the leading source of water quality impacts on lakes and rivers. (26)

* Evaluate Compliance with Water Quality Protection Programs--In order to fairly and equitably allocate how much of the pollutant load dischargers should be allowed, a first step should certainly determine whether existing dischargers are in compliance with existing water quality protection programs. This determination is referenced in F.S. [section]403.067(6)(b)1-3, which requires that allocations be based on existing treatment and management practices, best management practices established and implemented, and enforceable treatment levels established pursuant to state or local law.

As noted earlier, in many of the adopted BMAPs, there is no review of compliance with existing permitted sites, no survey of possible unpermitted sites, and no analysis of the reduction in pollutant load if those sites were properly regulated. Also, nonagricultural nonpoint sources of pollutants that are not subject to MS4 permitting are not being addressed clearly. These matters should be addressed in future BMAPs.

* Make the BMAPs Enforceable Orders, Not Planning Guidelines--There is little doubt that the legislature intended BMAPs to be an enforceable document. F.S. [section]403.067(7) (a)4 requires DEP to adopt BMAPs by secretarial order "to implement the provisions of this section." However, the legislation requires, as much as possible, incorporation of the management strategies of the BMAPs into NPDES permits or other state, regional, or local permits, in which the strategies can be enforced as permit conditions. (27) If that is done, enforcement will not have to be done by enforcing the BMAP final order. However, if the management strategies are not incorporated in an existing permit, it is questionable if the BMAPs, as presently written, would be enforceable.

First, the language of the final orders adopting the BMAPs is revealing. All but two of the 19 final orders adopting BMAPs do not contain language putting any affected person on notice that the final order will be enforced. (28) These final orders contain language that merely describe the TMDL for the basin, note that the BMAP was a collaborative effort among various stakeholders, and state that the BMAP identifies and documents management actions that have been or will be undertaken by stakeholders. There is no language in these 17 final orders that clearly states that the order is an enforceable document.

Fortunately, the two "Phase II" final orders adopting BMAPs have much more specific language regarding enforceability. These two final orders specifically state they are enforceable pursuant to F.S. [section][section]403.067, 403.121, 403.141, and 403.161, which are statutes giving DEP authority to take judicial or administrative enforcement actions, including injunctive relief, penalties, and costs. They also state that all pollution reduction projects (management strategies) must be completed within five years of the effective date of the final order.

Even if DEP uses the more specific enforcement language in the two recently adopted final orders, enforcement of management strategies will be difficult because they are often written as general planning goals rather than regulatory enforcement conditions. Until all BMAPs use the recently improved final order for adoption, and until the management strategies are more specifically described, the BMAPs are mainly helpful guidelines showing how impaired waters could be restored. As presently drafted, they are not orders that can be effectively enforced.

* More Fully Address Agricultural

Nonpoint Discharges into Impaired Water Bodies--Unlike nonagricultural nonpoint sources, there has been significant action addressing agricultural nonpoint sources. Pursuant to F.S. [section]403.067(7)(c)2, FDACS adopted BMP rules for farming operations to reduce water pollution. (29) FDACS has been enrolling thousands of farms in this program and assists farmers in implementing the BMPs. FDACS received 7,005 notices of intent to participate in the BMP program as of March 31, 2014, covering over 4 million acres of agricultural land. (30) In every BMAP, FDACS has set forth its plans to further enroll farmers in the BMP program.

However, there is a long way to go before agricultural nonpoint pollutants will be reduced sufficiently to meet the TMDL allocations. For example, from January 2013 through May 2014, FDACS conducted 329 implementation site visits statewide for 257,285 enrolled acres. (31) As noted above, at that time, FDACS had over 4 million acres under enrollment.

Also, even if the BMPs are all properly implemented at all of the agricultural operations, the legislature recognized that there is no guarantee the BMPs will be effective enough to meet their TMDL allocation. F.S. [section]403.067(7)(c)4 requires a reevaluation of the BMP program when water quality problems are demonstrated, despite the appropriate implementation, operation, and maintenance of the BMPs. Should the reevaluation determine that the BMPs require modification, revision of the rules is required.

While agricultural nonpoint pollution reduction is certainly not being ignored, the BMAPs should provide additional direction regarding how this significant source of pollution will be addressed. First, even though FDACS is very proactive in establishing the BMP program for farmers, it has a monumental task ahead. Farmers should understand that if they fail to promptly enroll with FDACS and implement the BMPs, their failure will be enforced by DEP or the water management district. A regulatory compliance schedule by DEP or the water management district should be included in the BMAPs.

Second, the BMAP should clarify the agricultural operators' responsibilities. Presently, the BMAPs correctly note that there is a presumption in the law that a farmer is in compliance with state water quality standards if the FDACS approved BMPs are implemented or if water quality monitoring is conducted. (32) However, the BMAPs should make it clear that this presumption does not apply if DEP or a water management district requires compliance with water quality standards in another regulatory program. F.S. [section]403.067(7)(c)6 states the following: "The provisions of subparagraphs 1 and 2 do not preclude the department or water management district from requiring compliance with water quality standards or with current best management practice requirements set forth in any applicable regulatory program authorized by law for the purpose of protecting water quality." For example, F.S. [section][section]373.413 and 373.414 do not allow DEP and water management districts to issue ERPs unless there is reasonable assurance that the activity will not be harmful to water resources of the district and that state water quality standards will not be violated. Therefore, if a farm's operation is subject to an ERP, the presumption in F.S. [section]403.067(7) (c) does not apply. The farmer is required to meet the appropriate ERP water quality requirements. (33) In another example, F.A.C.R. 40E61 presently includes phosphorus concentration discharge limits for stormwater runoff in the Lake Okeechobee watershed. (34) This rule is implementing a South Florida Water Management District program regarding use of "works of the district" in a manner that is consistent with the objectives of the district, one of which is water resource protection. (35) The presumption of water quality compliance under [section]403.067(7)(c) would not apply if the South Florida Water Management District took action to enforce phosphorus limits under this rule.

Conclusion

DEP's TMDL program provides a solid scientific basis to determine the extent of pollutant reduction needed to restore Florida's impaired waters. DEP's BMAPs, which are the mechanisms to implement the TMDLs, are making headway in organizing an approach to restoration. Presently, however, the BMAPs are essentially planning documents. They need more regulatory teeth if they are to succeed. Perhaps in the future, as additional phases are adopted, the BMAPs will more forcefully and more quickly achieve their end goal --restoration of the impaired water bodies. At this time, that end is not in sight.

(1) FLA. STAT. [section]403.021(1) (2014).

(2) Federal Water Pollution Control Act [section]101(a)(l) (2002), 33 U.S.C. [section]1251.

(3) FLA. STAT. [section]403.067(1) (2014).

(4) See Florida Wildlife Federation, Inc. v. Carol Browner, et al., Case No. 98-356-CIV-Stafford (N.D. Fla. 1998), in which, as a result of a citizen's lawsuit, an order was issued to compel EPA to implement a total maximum daily load program to address both point and nonpoint sources.

(5) FLA. STAT. [section]403.067(6)(b) (2014).

(6) FLA. STAT. [section]403.067(1) (2014).

(7) Not all impaired water bodies put on the verified list are assigned TMDLs. Upon determining that a water body is impaired, F.A.C.R. 62-303.600 requires DEP to evaluate whether existing pollution control programs are sufficient to result in attainment of water quality standards. DEP documented four such situations. The documented decision addresses many of the same issues as a BMAP concerning the meeting of a TMDL. The documented decisions are titled, "Reasonable Assurance Plans" and are adopted by final order by DEP so they can be enforced. See DEP, Watershed Management, Reasonable Assurance Plans, www.dep.state.fl.us/water/watersheds/rap.htm, for information regarding these plans.

(8) FLA. STAT. [section]403.067(7) (2014).

(9) FLA. STAT. [section]403.067(7)(a) (2014).

(10) FLA. STAT. [section]403.067(7)(b)1 (2014).

(11) FLA. STAT. [section]403.067(6)(b) (2014).

(12) FLA. STAT. [section]403.067(7)(a)4 (2014).

(13) DEP, Water Quality Restoration, BMAPs, www.dep.state.fl.us/water/watersheds/bmap.htm.

(14) DEP, Basin Management Action Plan for the Implementation of Total Maximum Daily Loads Adopted by the Florida Department of Environmental Protection in the Upper Ocklawaha Basin (Aug. 14, 2007).

(15) DEP, Basin Management Action Plan, Phase 2, for the Implementation of Total Maximum Daily Loads Adopted by the Florida Department of Environmental Protection in the Upper Ocklawaha Basin (July 2014).

(16) Id. at 10.

(17) Id. at 35. This is an example of a typical nonspecific management strategy, in this case for Lake Apopka, wherein the only specific strategy not already completed is a FDOT project to construct lanes to a turnpike ramp that will provide wet detention treatment for runoff from existing and proposed pavement. The completion date is stated as "design 100 [percent] pending funding."

(18) Id. at 34.

(19) Id. at 20-32.

(20) Id. at 20.

(21) Id. at 20.

(22) See id. at 22.

(23) See FLA. STAT. [section]403.067(7)(b)2f (2014).

(24) DEP, Basin Management Action Plan, Phase 2, for the Implementation of Total Maximum Daily Loads adopted by the Florida Department of Environmental Protection in the Upper Ocklawaha Basin at 29, Table 8 (July 2014).

(25) Id. at 34.

(26) U.S. Environmental Protection Agency, 2000 National Water Quality Inventory, EPA-84 l-R-02-001 (2002).

(27) See Fla. Stat. [section][section]403.067(7)(a)l and (7) (b) (2014).

(28) DEP, Water Quality Restoration, BMAPs, www.dep.state.fi.us/water/watersheds/bmap.htm.

(29) See F.A.C.R. 5M-2 through 5M-16 (2014).

(30) Florida Department of Agriculture and Consumer Services, Office of Agricultural Water Policy, 2013-2014 Report on the Implementation of Agricultural Best Management Practices, iv, Figure 1.

(31) Id. at 12, Figure 6.

(32) See FLA. STAT. [section]403.067(7)(c)3 (2014).

(33) See F.A.C.R. 62-330.301(l)(e) (2014).

(34) See F.A.C.R. 40E-61.020 (2014).

(35) See Fla. Stat. [section][section]373.016, 373.085, 373.113, 373.4592, and 373.4595 (2014).

Douglas H. MacLaughlin is in private practice after a 36-year career employed as counsel for the Florida Department of Environmental Regulation, the Florida Department of Environmental Protection, and the South Florida Water Management District. He practices Florida administrative law and environmental law and is board certified as a specialist in state and federal government and administrative practice.

This column is submitted on behalf of the Environmental and Land Use Law Section, Kelly Kathleen Samek, chair, Susan Roeder Martin, editor.
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Author:MacLaughlin, Douglas H.
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Date:Feb 1, 2015
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