Florida TMDL Rulemaking Efforts
 
October 11, 2000
 

Florida is in the process of implementing its TMDL program pursuant to the Clean Water Act (see related article on page 2).

Impaired Waters Rulemaking

The Impaired Waters TAC has been meeting on a monthly basis to develop the methodology DEP will use in determining which water bodies are “impaired” and require TMDL development. The TAC’s efforts have produced a draft rule, which was the subject of a public rule development workshop held in Tallahassee on September 7. Another workshop was held on September 11 in Orlando. Once adopted, the rule will establish which water segments are listed as “impaired” by a particular pollutant. The draft rule focuses on impairment of designated uses as the critical element to determining whether a water is “impaired.” Only waters whose designated uses are impaired due to point source or nonpoint source pollutant discharges will be identified as “impaired” under the rule. Much debate is expected concerning this rulemaking, particularly concerning criteria used to establish biological impairment and toxicity, preparation of unverified “planning lists” of waters, and the method for de-listing a listed water. DEP hopes to present the rule to the Environmental Regulation Commission in December, but skeptics doubt that this schedule is feasible. The Impaired Waters TAC last met on August 28, 2000. The first Rule Development Workshop for the draft rule was on September 7, 2000, in Tallahassee. A copy of the latest draft Chapter 62-303 is available at: http://www.dep.state.fl.us/water/division/tmdl/tac.htm.

TMDL Allocation TAC

As stated above, the TMDL Allocation TAC was convened to help DEP prepare a report to go to the Legislature by February 1, 2001, to describe the process for allocating TMDLs. Issues the TMDL Allocation TAC are considering include:

• What level of detail of allocation will be adopted with a TMDL? For nonpoint sources, DEP is considering whether to allocate to a level of categories in the TMDL, with a more detailed allocation in the TMDL implementation plan established on a basin-specific basis. At the latest TAC, the TAC agreed that, in the TMDL rule, allocations should be more general, to specific sources if those sources are individually permitted, but otherwise to more general categories of sources, such as the storm water general permit category, agricultural runoff category, or silvicultural runoff category.

• What is a “reasonable and equitable” TMDL allocation? Should DEP first seek participation from nonpoint sources to “level the playing field” with point sources, since point sources are already required to treat their discharges? How should TMDLs be allocated between nonpoint sources with differing levels of Best Management Practices (BMPs) already in place?

• What level of voluntary participation from nonpoint sources can be expected for a first-round allocation? DEP is anticipating 80% participation from such sources, with 100% participation mandated from permitted point sources.

• How do we equate treatment effort between domestic and industrial point sources, between point sources and nonpoint sources, etc?

• How should we allocate reductions for sources outside Florida?

• Should allocation be established with an explicit or implicit “margin of safety?” Rather than recommend a generic 10% margin of safety, the TAC is currently recommending an implicit, case-by-case margin.

• How should allocations address future growth? Should future dischargers be required to purchase allocations, or should a “pot” of allocations be reserved for future growth? The TAC agreed that a five-year planning horizon is appropriate.

• For nonpoint sources, how do we take into account location of the activity in proximity to the impaired water?

• Who receives the allocation? For point sources, permit holders will receive allocation. For nonpoint sources, should allocation go to the local government? For rural nonpoint sources, should a given activity or commodity group receive the allocation?

• How should atmospheric deposition of pollutants to a surface water be allocated? DEP currently does not plan to address atmospheric deposition absent new direction from either Congress or the Legislature.

• Does allocation establish long-term rights to pollutant loading? Should these rights be tradeable? DEP is considering using the Air Program as a model.

The last TMDL Allocation TAC was held on September 11th in Jacksonville. The TAC has not yet prepared a draft report for the Legislature.