By Susan Roeder Martin

Significant Rulemaking

The Department of Environmental Protection (DEP) recently adopted (pending ratification) the most significant rules in its history pertaining to stormwater quality.  The rules will drastically alter the environmental resource permit (ERP) requirements for water quality treatment.  The rules will greatly enhance water quality in Florida, but will come with a significant cost, as discussed below.  Virtually everyone supported DEP’s efforts to improve water quality.  However, there was not, and still is not, consensus on how this should be accomplished.

Legislative Direction

Florida recognizes that stormwater-related pollution is one of the largest potential contributors of nutrients throughout the State, especially pollution from excess nutrients.  Because of this, the Legislature passed the Clean Waterways Act, with unanimous, bipartisan support.   The legislation requires DEP and the water management districts to update the ERP stormwater design and operation regulations under Part IV of Chapter 373, Florida Statues, using the latest scientific information.  These provisions are set forth section 373.4131(6)(a) of the Florida Statutes, which required, by January 1, 2021:

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. 

Initiation of Rule Development

On November 19, 2020, DEP formally began rulemaking to update chapter 62-330, Florida Administrative Code and the ERP Applicant’s Handbook Volume I (“AHI”) that applies statewide.  Each of the state’s five water management districts also initiated rule development, primarily to delete water quality provisions that will be addressed in AHI.   While DEP’s rulemaking effort was widely supported, there were differences in opinion as to how to achieve improved water quality.

Rule Publication

DEP published the proposed rule on February 24, 2023, which included changes to chapter 62-330 of the Florida Administrative Code and changes or 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).  Changes and new language were also proposed for dams, appendices, and forms.  The published rule contained the following additional permitting requirements:

• Modeling or calculations are required, rather than presumptive best management practice design.
• Minimum stormwater treatment performance standards for design are based on a pre/post analysis or a nutrient reduction efficiency, whichever is more protective.
• Treatment designs must provide eighty percent nutrient reduction for both total phosphorous (TP) and total nitrogen (TN).
• Additional removal requirements of ninety-five percent for projects discharging within Outstanding Florida Waters.
• Additional provisions for projects discharging to impaired waters to ensure consistent procedures for demonstrating that a project will provide a net improvement to receiving waters.
• For redevelopment, the proposed provisions would allow 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]

The published rule also proposed changes to the operation and maintenance requirements in section 12 of AHI.  These include strengthened training, documentation, and inspection frequency requirements to help ensure that new stormwater management systems will be properly operated and maintained over time.   There are also new permitting requirements to ensure that entities will be capable of performing operation and maintenance over time.

Statement of Estimated Regulatory Costs (SERC)

Section 120.54(3)(b)1,Florida Statutes requires agencies to prepare a SERC when the rule would “increase regulatory costs in excess of $200,000 in the aggregate in this state within 1 year after the implementation of the rule.”

The proposed rule tripped the statutory requirement for a SERC because DEP determined that regulatory costs exceed $200,000 within one year.  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 the new rule requirements.  DEP determined the total estimated cost (prior to revisions made in response to lower regulatory cost alternatives) would be $1,441,867,660.  On a per project basis DEP estimated:

1. Increased Stormwater Treatment Requirement – $102,755
2. Additional Treatment System Design – $1,004
3. New Operation and Maintenance Permitting – $1,631
4. Strengthened Inspection and Reporting – $ 443 5.
5. Total Per Project Items (Add lines 1-4) – $105,833
6. Number Projects, 5 years from implementation 14,032
7. Total Per Project Cost[iii] – $1,485,050,000
8. Dam safety total for 5 years – $620,200

Total Proposed Rule Revisions – $1,485,670,000

Chapter 120, the Florida Statutes allows affected persons to submit proposals for a lower cost regulatory alternative to the agency. Four Lower Cost Regulatory Alternatives (LCRAs) were submitted to DEP.  Pursuant to section 120.541(1)(a), Florida Statutes, DEP was required to respond to each LCRA, revise the SERC, and either adopt the LCRA or provide a statement of the reasons for rejecting the LCRA.

Three of the LCRAs requested clarification of “grandfathering” language for construction permits that are consistent with their conceptual permits and clarification that minor permit modifications would not be subject to the new rule language.

The fourth LCRA was submitted by the Florida Engineering Society and focused on the requirement that treatment designs provide eighty percent nutrient reduction for both TP and TN and the additional nutrient removal requirements of ninety-five percent for projects discharging within Outstanding Florida Waters.  FES also argued that the rule language was not based on the most recent scientific data or statutory authority.

Rule Adoption Hearing and Response to LRCAs

DEP conducted a rule adoption hearing on March 22, 2023, in which DEP not only presented the rule, but also considered the LCRAs.  It also took general public comment.  FES provided testimony at the rule adoption hearing, consistent with the comments in its LRCA.

DEP published revised rule language on March 24, 2023, responding to the LRCAs.  Primarily in response to FES comments, DEP reduced some of the percentage reduction requirements set forth in the minimum performance standards.  The general minimum performance standard was changed from an eighty to a fifty-five percent reduction in the average annual loading of TN from the proposed project.  For Outstanding Florida Waters, the percentages were changed from a ninety-five percent reduction of the average annual loading of nutrients to a ninety percent reduction of the average annual loading of TP and eighty percent reduction of the average annual loading of TN.  This was a success for FES, but FES still believes additional changes are necessary.

DEP also clarified that activities which were approved by 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 will not apply to permit transfers of grandfathered permits, or conversion of such permits to the operation phase.  However, operation phase permits will be subject to the Inspections and Reporting Requirements of sections 12.5 and 12.6 of AHI.  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.

Legislative Ratification

Because of the great cost of this rule, section 120.541(3) of the Florida Statues, required DEP to have the rule ratified by the Legislature. The proposed rule was considered by the Legislature in the 2023 session, but not adopted, primarily due to the costs associated with the proposed rule.  DEP will now need to seek legislative ratification in 2024.  In the meantime, DEP will need to learn what changes to the language are necessary for successful ratification in 2024.  FES will continue to provide input to DEP on necessary changes.  If alternative language is proposed by DEP, it will have to be formalized by the initiation of rule development, prior to the 2024 legislative session.

Water Management District Rulemaking

Early in 2023, each of the water management districts also held workshops to present its proposed amendments to its individual ERP Applicant’s Handbook Volume II (AHII).  Each water management district currently has its own rules on water quality and water quantity in its individual AHII.  Due to the proposed revisions to address the new statewide stormwater requirements in AHI, each water management district proposed the necessary changes within its AHII to be consistent with AHI.  The stated purpose of the rulemaking is to address redundant rule language; obsolete rule language; refinement of rule language; and the expansion of existing rule language for better clarification.

The water quantity or flood control provisions will continue to remain in each water management district’s AHII.  While the Legislature has called for statewide consistency in ERP rules, these differences in AHIIs are acceptable because they are based on the differences in physical and natural characteristics of the geographic areas in each water management district.[iv]

To view the DEP’s Water Resource Management Rules in Development, click here.

[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).

[iii] Statement of Estimated Regulatory Costs [from Revisions to Fla. Admin. Code R. 62-330], Div. of Water Res. Mgmt., Fla. Dep’t of Envtl. Prot. (March 23, 2023), at 3 (available at http://publicfiles.dep.state.fl.us/dwrm/draftruledocs/stormwater/noc/serc-template-updated.pdf).

[iv] See Fla. Stat. § 373.4131(c)2 (2022).