Modernization of Stormwater Quality Rules
In 2020, the Florida Legislature passed Senate Bill 712, the Clean Waterways Act,[1] requiring the Department of Environmental Protection (DEP) and the state’s five water management districts[2] (collectively “the agencies”) to initiate rulemaking to update stormwater design and operation regulations. This legislation passed with unanimous, bipartisan support and carries a wide range of water-quality protection provisions aimed at minimizing the impact of known sources of nutrient pollution and strengthening regulatory requirements.[3] The bill requires the agencies to revise the environmental resource permit (ERP) rules to include the most recent scientific information available, including low-impact designs, best management practices (BMPs), and design criteria that increase nutrient removal from stormwater discharges. The revised rules must also include measures for the consistent application of the net improvement performance standard to ensure significant pollutant loading reductions[4] from stormwater management systems.[5]
Background
Managing stormwater and its effects on surface and ground water is critically important to protecting Florida’s water quality and the general environment. Stormwater management is especially important in urban areas because urbanization leads to soil compaction; alteration of natural landscapes, floodplains, and wetlands; and the addition of pollutants from everyday human activities. Construction of impervious surfaces, including roads and parking lots, decreases the amount of rainwater that seeps into the soil to recharge aquifers, maintain lake and wetland water levels, and maintain spring and stream flows. Without proper management, the volume, speed, and pollutant load in stormwater that runs off developed areas increases, leading to flooding, water-quality problems, and loss of habitat.[6]
Florida has long recognized the importance of managing stormwater and was in fact the first state in the nation to adopt a rule requiring all new development treat stormwater to a specified pollutant load reduction level.[7] Stormwater rules were first adopted by the Environmental Regulation Commission in October 1981 and became effective in February 1982.[8] The rules included an 80% annual load reduction of total suspended solids as the stormwater treatment performance standard and included BMP design criteria. The rules also adopted a rebuttable presumption that discharges complying with the rules would not harm water resources.
DEP is the lead agency responsible for coordinating the statewide stormwater management program and is responsible for establishing goals, objectives, and guidance for development and implementation of the stormwater management program by water management districts and local governments. DEP delegated the implementation of the stormwater management program to the water management districts, which have implemented a comprehensive surface water management program under F.S. Ch. 373, Part IV. The water management districts are the chief administrators of the state stormwater management program within their geographic boundaries. Each water management district developed stormwater design criteria, modeled after the minimum design criteria outlined in F.A.C. Ch. 62-25 to achieve the minimum stormwater treatment standards specified in F.A.C. Ch. 62-40, the water resource implementation rule.[9]
F.S. Ch. 373, Part IV, provides the authority for the agencies to require a permit for the construction or alteration of a stormwater management system, dam, impoundment, reservoir, appurtenant work or works. F.A.C. Rule 62-330.010(2) states:
The ERP program governs the following: construction, alteration, operation, maintenance, repair, abandonment and removal of stormwater management systems, dams, impoundments, reservoirs, appurtenant works, and works[10] (including docks, piers, structures, dredging, and filling located in, on or over wetlands or other surface waters, as defined and delineated in chapter 62-340, F.A.C.)….
The three main criteria the ERP rules provide to protect the state’s water resources are 1) water quality criteria to ensure compliance with state water quality standards; 2) water quantity criteria to prevent adverse flooding and maintain drainage; and 3) environmental criteria for the protection of wetlands and other surface waters, and the preservation and protection of habitat for fish and wildlife.[11]
Most current substantive ERP water quality and quantity rules are based on rules originally developed in the 1980s. This continuity of regulation has benefited stakeholders by providing consistency and certainty in permitting. However, the disadvantage to the state’s water resources is that the rules are not based on the current state of scientific and engineering knowledge.
The Florida Environmental Reorganization Act of 1993 directed DEP and the water management districts to adopt rules consolidating the provisions of the DEP dredge and fill program under F.S. §§403.91-403.929 into the water management districts’ rules governing water resource management and storage of surface waters program.[12] The legislature directed that the rules be based primarily on existing rules, meaning that rules from the 1980s were carried forward into the 1990s.
After a contentious rule challenge and settlement,[13] the agencies adopted uniform environmental criteria, applicable throughout the state. However, the existing water quality and quantity rules were not updated or made uniform. Each water management district continued to maintain its own chapter of rules set forth in F.A.C. Ch. 40, and its own separate technical volume setting forth water quality criteria, quantity criteria, and the uniform environmental criteria. These technical volumes were known as the water management district basis of review or applicant’s handbook (technical water quality and quantity criteria) and were incorporated by reference in the Florida Administrative Code. To avoid unnecessary duplication and increase efficiency and consistency in permitting, DEP and each water management district adopted operating agreements that specified the division of ERP permitting responsibilities between them. To ensure uniform application of the rules, DEP adopted each water management district’s rules and technical water quality and quantity criteria. DEP then applied those rules within the geographic boundary of the applicable water management district when it issued permits.
The environmental resource permitting rules became effective in October 1995 and provided consistent statewide environmental regulations. However, variations continued to exist in water quality and quantity criteria and procedural requirements.
Current Rules
In 2012, the legislature, recognizing the need for even greater statewide consistency, adopted F.S. §373.4131, requiring DEP and the water management districts to adopt statewide environmental resource permit rules, commonly referred to as SWERP. Again, the legislature sought greater consistency and stated:
The rules must rely primarily on the rules of the department and water management districts in effect immediately prior to the effective date of the section except that the department may:
1. Reconcile differences and conflicts to achieve a consistent statewide approach.
2. Account for different physical or natural characteristics, including special basin considerations, of individual water management districts.
3. Implement additional permit streamlining measures.[14]
The SWERP rules had two main purposes. First, to streamline and promote statewide consistency while reducing regulatory costs and burdens for the public. The second purpose was to preserve environmental standards and protect the state’s water resources. The SWERP rules were set forth in new F.A.C. Ch. 62-330 and became effective in October 2013. SWERP rules include an applicant’s handbook vol. I, incorporated by reference into F.A.C. Ch. 62-330.
Because the legislature required the new rules to “rely primarily on the rules of (DEP) and water management districts in effect immediately prior to the effective date of this section,” the water quality and quantity rules promulgated in the 1980s and 1990s remained in effect. SWERP rules also preserved the existing environmental criteria established in the 1995 rule. The significant changes that SWERP produced were new, consistent permit processing rules on 1) types of permits, permit criteria, and thresholds; 2) standardized fee categories, although fee amounts still vary among the agencies due to differing processing costs; 3) synchronized review and modification procedures, duration, operational requirements, transfer, forms, emergencies, removal, abandonment, and electronic application submittals; and 4) exemptions and general permits that do not allow an individual or cumulative significant adverse impacts and general permit conditions.
The SWERP rules did not create a new regulatory program because the substantive water quality, quantity, and environmental criteria remained consistent. Each water management district continues to have its own rules on water quality, water quantity, and special basins that are set forth in their individual applicant’s handbook, vol. II. Each water management district’s individual applicant’s handbook vol. II is incorporated into the Florida Administrative Code and each water management district’s applicant’s handbook II is different. The differences are based in part on the different hydrologic characteristics of each water management district. For example, hydrologic conditions in the Panhandle are very different from those in the Florida Keys. DEP has adopted each water management district’s applicant’s handbook vol. II and when DEP issues an ERP, it applies the applicant’s handbook II to regulatory decisions within the boundary of each water management district.
While the design and performance criteria in the current applicant’s handbooks vol. II were, for the most part, written prior to 1995, there are important exceptions. For example, the South Florida Water Management District adopted by rule the procedure for environmental resource permit water quality evaluations for applications involving discharges to outstanding Florida waters and water bodies that do not meet state water quality standards.[15] The rule addresses additional source controls, BMPs and other protective measures; treatment efficiency of BMPs in series (treatment train) water quality mitigation and monitoring. The elements of this rule are likely to be considered in the upcoming rulemaking.
Need for Modernization
Stormwater-related pollution represents one of the largest potential contributors of nutrients throughout the state.[16] While the current water quality and quantity rules have provided a stable regulatory framework for more than three decades, they have not kept up with scientific knowledge. DEP, water management districts, the Florida Stormwater Academy, and others, have conducted significant research that can be used to develop more efficient and effective stormwater quality rules. Water quantity criteria is also outdated, as climate conditions in Florida have also changed since the 1980s. For example, rainfall data included in at least one water management district’s applicant’s handbook is based on data from the early 1980s.
DEP has long recognized the need for updated stormwater regulations to better protect water quality. A 2007 DEP report stated that “many stormwater management facilities are selected or designed based upon the ability of the system to function hydraulically rather than with regards to pollutant removal effectiveness.”[17] The report also indicated that vegetation plays a crucial role in the removal of contaminants from stormwater and in stabilization of the soil. The roots from vegetation assist in maintaining the permeability of the basin soils.[18] However, survival of vegetation is not assured. Many homeowners remove vegetation in surface water management ponds behind their homes because of aesthetics. Other times, vegetation does not survive due to climatic and hydrologic factors.
The effectiveness of stormwater management systems greatly varies. The 2007 DEP report stated, “Annual mass removal efficiencies for retention systems vary substantially within the State of Florida between the designated meteorological zones.”[19] The effectiveness of the systems also deteriorate over time. For example, sediment builds in the bottom of stormwater ponds and maintenance activities rarely include sediment removal. The sediment in the bottom of stormwater management ponds is rich with nutrients. Without regular maintenance, other stormwater management features also have reduced functionality.
Can There Be Statewide Uniform Storm Water Quality Criteria?
The agencies have successfully implemented consistent environmental criteria since 1995. Since 2013, the agencies have successfully implemented consistent procedural rules, exemptions, and thresholds. These past successes demonstrate greater consistency can also be achieved in water quality rules.
The legislature mandated consistent application of the net improvement performance standard to ensure a significant reduction of pollutant loading. The agencies are expected to have one set of rules for this purpose. There are many additional opportunities for consistent statewide water quality rules. However, it will be necessary to continue to address the different natural and hydrological terrain throughout the state.[20] There will also likely continue to be a need for special basin criteria to address unique physical and natural characteristics.
Process
The agencies each initiated rulemaking[21] in December 2020. In order to obtain public input for rule language, DEP formed the Clean Waterways Act Stormwater Rulemaking Technical Advisory Committee (TAC).[22] The TAC provides the agencies an additional way to seek and receive public input and recommendations during the rule development process. DEP established the following mission for the TAC:
The mission of the Clean Waterways Act Stormwater Rulemaking Technical Advisory Committee shall be to provide a forum for identifying and constructively outlining recommendations to the department and water management districts for strengthening the stormwater design and operation regulations implemented under Part IV, Chapter 373, F.S., including updates to the Environmental Resource Permit Applicant’s Handbook, based on the most recent scientific information available and the additional directions provided by Section 5, Chapter 2020-150, Laws of Florida. [23]
DEP also set forth goals and charge questions for the TAC. This includes directions to develop and provide consensus stormwater rulemaking recommendations for the agencies through public discussion and constructive deliberation. The following questions will be considered:
1) What are the options for identifying stormwater design criteria and BMPs that are effective for increasing the removal of nutrients from stormwater discharges in the state?
2) What measures are recommended for consistent application of the net improvement performance standard to ensure significant reductions of any pollutant loadings to a water body thought to be impaired by stormwater discharges?
3) What changes are recommended for improving existing stormwater operation regulations to ensure water resources are protected under the rulemaking directed under the Clean Waterways Act?[24]
TACs have proved valuable in past rulemaking by allowing the public additional input and providing an additional information source for the agencies. Not only can the public provide information and innovative ideas to address water quality to DEP and the water management districts, but also to the TAC. Members of the public have already suggested that the tools to address stormwater quality not only be updated, but also expanded beyond those included in past rules. For example, members of the public have suggested water quality banks and the expansion of water quality credit trading for non-point to non-point source trades to satisfy ERP water quality requirements.
The agencies will draft and publish proposed rule language. It is anticipated that workshops will be held after proposed rule language is published to receive additional public input. Future formal steps include the initiation of rulemaking, additional publications, and a rule adoption hearing. The need for legislative ratification is likely.
[1] Act effective July 1, 2020, Laws of Fla. Ch. 20-150 (2020).
[2] Florida has five water management districts, established in Laws of Fla. Ch. 373, based on hydrologic boundaries. The five water management districts are Northwest Florida, Suwannee River, St. Johns River, Southwest Florida, and South Florida.
[3] Florida Department of Environmental Protection (DEP), Clean Waterways Act Stormwater Rulemaking Technical Advisory Committee (TAC) (Jan. 3, 2020), https://bit.ly/3qPPo7V.
[4] Fla. Stat. §373.4131(6)(a) (2020).
[5] A stormwater management system is a system of vegetative, structural, and other facilities or measures that control the volume, conveyance, and rate of stormwater runoff, and manage water quality impacts of stormwater runoff caused by land disturbing and development activities.
[6] Florida DEP, ERP Stormwater (Jan. 4, 2020), https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/erp-stormwater.
[7] The State Water Resource Implementation Rule (originally known as the State Water Policy Rule) was adopted in 1981 and became effective in February 1982. This technology-based rule relies on four key components: A performance standard or goal for the minimum level of treatment; design criteria for best management practices (BMPs) to achieve the performance standard; a rebuttable presumption that discharges from a stormwater management system designed in accordance with the BMP design criteria will not cause harm to water resources; and periodic review and updating of BMP design criteria as more information becomes available to increase their effectiveness in removing pollutants. These rules were developed to meet a performance standard of reducing the average annual post-development stormwater pollutant loading of total suspended solids (TSS) by 80%, or by 95% for stormwater discharges directly into outstanding Florida waters. See note 6; Florida DEP, Submerged Lands and Environmental Resource Coordination Program (Jan. 4, 2020), https://floridadep.gov/water/submerged-lands-environmental-resources-coordination; see also F.A.C.R. 62-40 (2020).
[8] F.A.C. Ch. 17-25 (1982).
[9] Harvey H. Harper & David M. Baker, Evaluation of Current Stormwater Design Criteria within the State of Florida: Final Report, Florida DEP (June 2007), available at http://www.erd.org/ERD%20Publications/EVAL%20OF%20CURRENT%20SW%20DESIGN%20CRITERIA%20WITHIN%20THE%20STATE%20OF%20FLA-2007.pdf.
[10] Works is a broad term that includes “all artificial structures, ditches, canals, culverts, pipes, and other construction that connects to, draws water from, drains water into, or is placed across waters in the state.” Fla. Stat. §373.403(5) (2020).
[11] Fla. Stat. §373.413 (2020).
[12] Act effective May 12, 1993, Ch. 93-213, 1993 Laws of Fla. 2129. The legislature provided additional direction and authority for the ERP program in the Wetlands Act of 1994, Ch. 94-122, 1994 Laws of Fla. 661.
[13] Florida Electric Power Coordinating Group, Inc., et al. v. Suwannee River Water Management District, et al., Final Order July 24, 2995. The final order, addressing environmental issues, was issued after a two-week trial in 1994 and a settlement agreement among the parties. The issues not settled were ruled upon by the hearing officer in the final order.
[14] Fla. Stat. §373.4131(1)(c) (2012).
[15] Environmental Resource Permit Applicant’s Handbook Vol. II, Appendix E, Procedure for Environmental Resource Permit Water Quality Evaluations for Applications Involving Discharges to Outstanding Florida Waters and Water Bodies that Do Not Meet State Water Quality Standards (Aug. 10, 2014), F.A.C.R. 40E-4.091(1)(a).
[16] Florida DEP, Submerged Lands and Environmental Resource Coordination Program.
[17] Harper & Baker, Evaluation of Current Stormwater Design Criteria Within the State of Florida.
[18] Id.
[19] Id. at 26.
[20] The declaration of policy set forth in F.S. §373.016(5) states: “The [l]egislature recognizes that the water resource problems of the state vary from region to region, both in magnitude and complexity.”
[21] The Clean Waterways Act directed the agencies to initiate rulemaking by January 1, 2021. The agencies instead initiated rule development, which is the formal official step in the rule process. Rulemaking is a step later in the formal process.
[22] The members of the TAC include representatives from academia, Florida public or private research university; agricultural; an at-large technical expert; city government; county government; development interest; homebuilders; environmental interest, general; environmental interest, water resource protection; Florida stormwater association; low-impact design and green infrastructure; stormwater design engineering and consultants; stormwater utilities; urban redevelopment.
[23] See note 3.
[24] Id.
Susan Roeder Martin is a partner with Nason, Yeager, Gerson & Fumero, P.A. She is board certified in state and federal government and administrative practice and is a Supreme Court-certified mediator and a LEED-accredited professional. She has practiced law for more than 35 years, formerly as a practice expert attorney with the South Florida Water Management District and earlier as a corporate attorney and congressional lobbyist with Florida Power and Light Company. She is chair-elect of the Environmental and Land Use Law Section of The Florida Bar and is a frequent speaker and author, having written six previous articles in The Florida Bar Journal and six ELULS treatises.
Karen West is general counsel for the Southwest Florida Water Management District. She has an undergraduate degree in zoology and her J.D. from the University of Florida. West joined the district in 1995 following four years of private practice in Gainesville. She has been general counsel since 2015.
This column is submitted on behalf of the Environmental and Land Use Law Section, Rachael Bruce Santana, chair, and Felicia Kitzmiller, guest editor.
