By Susan Roeder Martin

Significant Rulemaking

During the 2024 legislative session, the Florida Legislature ratified strict new water quality rules.  These rules were adopted in 2022, by the Department of Environmental Protection (DEP).  These are the most significant rules pertaining to improvements in stormwater quality in DEP’s history and the most protective rules in the nation on stormwater quality.

Legislative Direction

Stormwater-related pollution is one of the largest contributors of nutrients to Florida’s waterways.  The main impact from stormwater is excess nutrients.  The Legislature responded to this problem by passing the Clean Waterways Act, with unanimous, bipartisan support.   The legislation required DEP and the water management districts to update the Environmental Resource Permit (ERP) stormwater design and operation regulations under Part IV of Chapter 373, Florida Statues. Section 373.4131(6)(a), Florida Statutes, states:

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.

The net improvement performance standard referenced in above section refers to section 373,414(b)3, Florida Statutes 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.

 DEP Rule Making

DEP began formal rulemaking on November 19, 2020 to update chapter 62-330, Florida Administrative Code and the ERP Applicant’s Handbook Volume I (“AHI”) that applies statewide.  DEP conducted a rule adoption hearing on March 22, 2023 and published revised rule language on March 24, 2023. However, as explained below, the rule was not immediately effective.

Before adopting the rule, DEP was required by Section 120.54(3)(b)1, Florida Statutes to prepare a Statement of Estimated Regulatory Cost (SERC) because the rule would “increase regulatory costs in excess of $200,000 in the aggregate in the state within 1 year after the implementation of the rule.”  To prepare the SERC, DEP estimated the new design and permitting requirements to meet the minimum stormwater treatment design performance criteria for new or altered stormwater management systems.  Specifically, DEP estimated the costs of a sample project under new rule requirements and determined the total estimated cost (prior to revisions made in response to lower regulatory cost alternatives) are           $1,485,670,000.

Because of the cost of this rule, section 120.541(3), Florida Statues, required the Legislature to ratify the rule.  The proposed rule was considered by the Legislature in the 2023, but not ratified.  DEP obtained ratification in 2024, after some important modifications to the rule.

RULE CHANGES

The new rule changes or adds new language to the following parts of AHI:  Part 2 (definitions); Part 3 (“grandfathering”[i]); Part 8 (criteria for evaluation); Part 9 (stormwater quality treatment calculations); and Part 12 (operations and maintenance. New language was also adopted for dams, appendices, and forms.  Additional permitting requirements include:

• Modeling or calculations are required, rather than presumptive best management practice design;
• Minimum stormwater treatment performance standards for design based on a pre/post analysis or a nutrient reduction efficiency, whichever is more protective;
• Significant reductions of both total phosphorous (TP) and total nitrogen (TN);
• Additional removal requirements for projects discharging to Outstanding Florida Waters (OFWs) and impaired waters;
• For redevelopment, a reduced TN performance standard of forty-five percent, under limited conditions which are expected to support redevelopment in areas where there are likely little or no historical stormwater treatment;[ii]
• New operation and maintenance requirements in Section 12, AHI

The most significant change is the new nutrient percentage reduction requirements set forth in  performance standards.  The general minimum performance standard is 55% reduction in the average annual loading of TN and 80% nutrient reduction for TP, for projects that are not discharging to an OFW or impaired water body.  But for sites in a HUC 12  and upstream of an OFW, a 90% reduction of the average annual loading of TP and an 80% reduction in the average annual loading of TN, or net improvement, is required, whichever is greater.  This is certain to have a significant impact on stormwater quality.

The water management districts’ historically have not have the same rules on off-site compensatory treatment.  By contrast, the new rule has consistent statewide provisions on off-site stormwater  treatment in Section 9.7.2 which  “may be used to provide additional treatment to meet the required performance standards”.

Additionally, section 9.7.3, AHI contains new rules for regional stormwater management systems which:

are designed, constructed, operated, and maintained to collect convey, store, absorb, inhibit, treat, or harvest stormwater to prevent or reduce flooding, overdrainage, environmental degradation and water pollution or otherwise affect the quantity and quality of discharges from multiple parcels and projects within the drainage area served by the regional system. The term “drainage area” refers to the land or development that is served by or contributes stormwater to the regional system. Regional systems must be maintained in accordance with the provisions outlined in section 12 of this volume.

On-site treatment in stormwater ponds greatly deteriorates over time.  Most maintenance entities ensure that their stormwater ponds continue to provide flood control and are aesthetically pleasing, but do not address continued water quality.  To help with this problem, the rule changes operation and maintenance requirements in section 12 of AHI.  Changes include strengthened training, documentation, and inspection frequency requirements to help improve the operation and maintenance of new stormwater management systems over time.

The new rules do not apply to activities approved in an unexpired conceptual approval, general, or individual ERP, Management and Storage of Surface Waters Permit, or Surface Water Management Permit issued prior to rule’s effective date, and subsequent permits to construct and operate the future phases consistent with an unexpired conceptual approval permit, will be exempt from the rule.  The exemption does not apply to a major modification or one that will cause substantially different water resource impacts.  Additionally, the new rule does not apply to permit transfers of grandfathered permits, or conversion of such permits to the operation phase. These grandfathered permits will be reviewed under the rule in effect at the time the permit was originally issued, unless the applicant elects to have such modification reviewed under the new rule. However, new operation phase permits will be subject to the new Inspections and Reporting Requirements of sections 12.5 and 12.6 of AHI.

AMENDMENTS DURING RATIFICATION

The Rule was ratified in the 2024 legislative session through Senate Bill 7040, but not before important amendments were made to the rule.  Significantly, the Bill did not reduce the minimum performance standards.

A rebuttable presumption historically existed in ERP rules, that if the rule criteria was followed, the applicant was presumed to meet state water quality standards. The new DEP rules did not contain this presumption.  However, the Legislature felt it important to maintain a presumption and stated:

If a swm system is constructed, operated, and maintained for stormwater treatment in accordance with a valid permit or exemption under this part, the stormwater discharged from the system is presumed not to cause or contribute to violations of applicable state water quality standards.

The Legislature defined the “annual loading from the proposed project” as “post-development loads before treatment.”

ERP water quality provisions have always focused on the removal of suspended solids.  However, DEP’s new rules did not contain provisions on suspended solids.  The Legislature returned the requirement for removal of suspended solids to the rule by adding the following requirements:

• 80% reduction of the average annual post-development total suspended solids (TSS) load or
• 95% reduction of TSS for projects in a HUC 12 watershed containing and upstream of an OFW.

EFFECTIVE DATE

DEP proposed to have the new rules apply 12 months after the rule’s effective date.   However Senate Bill 7040 added 6 months of grace for applicants.  The Legislature stated:

Projects or activities that are the subject of a general or individual permit application that is deemed complete on or before [effective date + 18 months] shall be exempt from the amendments to Chapter 62-330, F.A.C., and  Volume I adopted on [effective date], and the corresponding amendments to the applicable Volume II.”

Water Management District Rulemaking

In 2023, each of the water management districts also held workshops to present its proposed amendments to individual ERP Applicant’s Handbook Volume II (AHII).  Each water management district currently has its own rules on water quality and water quantity in their individual AHII.  Each water management district proposed the necessary changes within its AHII to delete water quality requirements to be consistent with DEP’s new rule.  The water quantity or flood control provisions will continue to remain in each water management district’s AHII.

 Conclusion

The new rules are certain to improve the water quality in stormwater discharges from new projects.  While the cost to all development from the new rule will be high, Florida can be proud to be a leader in rules on stormwater quality.

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[i] Grandfathering means an exemption from new rules or laws for a person or entity that already engages in certain activities or had a permit before the rules take effect.

[ii] Clean Waterways Act Stormwater Rulemaking Public Hearing, Div. of Water Res. Mgmt., Fla. Dep’t of Envtl. Prot. (March 22, 2023), at 4  (available at https://floridadep.gov/sites/default/files/Hearing%20Presentation.pdf).