## Florida’s Total Maximum Daily L oad Program: the First 5 Years
A Report to the Legislature and Governor

Division of Water Resource Management
Mimi Drew, Director

February 20052 Florida’s Total Maximum Daily Load Program: The First Five Years A Report to the Legislature and Governor

Executive Summary

The Watershed Restoration Act of 1999 (s. 403.067, F. S.) directs the Department of Environmental Protection to scientifically evaluate the quality of Florida’s surface wa ters and promote the mechanis ms necessary to clean up pollution. The Act was created specifically to implement the federal Total Maximum Daily Load (TMDL) program, which is a systematic approach to establishing how much pollution water bodies can assimilate while still meeting water quality standards. The Act directs the DEP to report to the Governor and legislature after five years on the implementation of the TMDL program and recommend statutory changes necessary to improve it.

To streamline the TMDL program, DEP adopted a five-year cycle that divides Florida into five groups of surface water basins in which different activities take place each ye ar; the cycle is reiterated co ntinuously to evaluate the success of clean-up efforts, refine water quality protectio n strategies, and account for the changes br ought about by Florida’s rapid growth and development. Activities in clude preliminary basin assessments; identification of pollutant-impaired waters; targeted water quality monitoring and data analysis; TMDL development and adoption; basin planning with local stakeholders to establish the actions necessary to reduce pollution; and implementation through regulatory actions, funding, pollution prevention strategies, and other measures.

Since passage of the Watershed Restoration Act, DEP has adopted an Impaired Waters Rule, which establishes the methods by which surface waters are evaluated and the need for TMDLs is determined. The principles established in that rule were endorsed by the National Academy of Sc iences in 2001 after its re view of the nationwide TMDL program. The agency has publicly adop ted verified lists of impaired waters for two of the five groups of surface water basins in Florida and is now developing the list for Group 3.

DEP has developed and adopted, by ru le, 52 TMDLs as of December 2004; anot her 61 TMDLs have been proposed or are in draft (see Attachment 1), all of which must also be adopted by rule. More than 1,000 additional TMDLs are anticipated. Across the state, DEP has held 136 formal public meetings to introduce local stakeholders to the TMDL program, the watershed management cycle, the way wate r bodies are evaluated, and what they can do to help protect their local water resources. Another 150 basin “f ocus meetings” and presentations to local governments along with innumerable individual contacts and small-group gatherings have been conducted to broadcast the benefits of the TMDL program, solicit information and idea s from local stakeholders, an d identify local leaders who will motivate others to act in cleaning up impaired waterways.

At the same time, DEP has worked with the Florida Depa rtment of Agriculture and Consumer Services and the state’s five water management districts to improve the mechanisms local governments, utilities, industries, and agricultural operations can use to implement pollution reductions and improve water quality. Perhaps most significantly, these efforts are leading to the developm ent and adoption of a full range of agricultural and nonagricultural best management practices to prevent the polluti on that historically has come from these “nonpoint” and generally unregulated sources. DEP has instituted verifi cation methods by which to dete rmine the effectiveness of these practices in reducing pollutant loading and protec ting water quality. The Department of Agriculture and Consumer Services has invested significant resources in this effort and is making real progress in targeting bestmanagement practices to particular agricultural commodity groups and demonstrating why it is in their best longterm economic and social interests to implement them.

DEP has invested approximately $17.5 million to date on research and development of non-agricultural best management practices and implementation of targeted moni toring expressly for the TMDL program. The bulk of this funding has come from Documentary Stamp revenues that DEP splits with the Department of Agriculture and Consumer Services, which uses its split to develop and implement agricultural best management practices. DEP has awarded another $26 million in federal section 319 grants to local governments to implement better urban stormwater treatment projects and practices, which can be exploited by other local governments across Florida. The investments DEP has made in other water quality monitoring efforts, its implementation of more traditional regulatory programs, and the more than $120 million th e agency awards in State Revolving Fund loans to local3 governments each year have also foster ed early successes in the TMDL progra m, as have the critical surface water restoration efforts of the region al water management districts.

The first five years of TMDL implementation also have fleshed out issues that could not have been fully anticipated when the Watershed Restoration Act of 1999 was adopted. This report sets forth those issues in some detail, identifies the solutions DEP has implemented under existing authority, and offers for consideration a few modifications to the Act that would improve the TMDL program. Those considerations include:

• Formally recognizing basin planni ng and making adopted basin pl ans enforceable to promote the “reasonable and equitable” allocation of pollutant load reductions among all pollutant sources that already is required by law.

• Authorizing the refinement of TMDLs in adopted basin plans, where necessary.

• Clearly establishing the legal relationship between basin plans and related permits.

• Modifying the best management practice verification process to make it more flexible and effective.

• Authorizing DEP to adopt pollutant trading rules after reporting to the legislature and Governor the results of its evaluation of pollutant trading.

Finally, the report reviews operational funding for the TMDL program over the last three years and recommends that future funding be considered to promote successful comple tion of the mandates and opportunities created by the

Watershed Restoration Act of 1999.

For more detailed information on the TMDL program, watershed management, and related activities discussed in this report, please visit the DEP website at www.dep.state.fl.us/water/tmdl/index.htm . Specific information on best management practices also is available from the Depa rtment of Agriculture and Consumer Services at www.floridaagwaterpolicy.com and from DEP at www.dep.state.fl.us/water/nonpoint/index.htm

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### Florida’s Total Maximum Daily Load Program: The First Five Years

Introduction

The Florida legislature adopted s. 403.067, F. S., the Watershed Restoration Act of 1999, authorizing the Department of Environmental Prot ection (DEP) to assess the quality of Florida’s surface waters, identify pollutant-impaired waters , develop mechanisms to clean them up, and work with other agencies and lo cal stakeholders to finance an d implement those mechanisms. The law requires DEP to prioritize impaired wate rs for clean-up and develop and adopt by rule scientifically-based pollutant reduction obj ectives—Total Maximum Daily Loads (TMDLs)— that can be accomplished in a reasonable and eq uitable manner. It further directs DEP to promote, in conjunction with Florida’s water management districts, the Department of Agriculture and Consumer Servi ces, local governments, and other affected parties, the specific mechanisms to accomplish the pollutant reductions necessary to meet the TMDL.

Each TMDL represents the capac ity of a surface water body or water body segment to assimilate a specific pollutant or pollutants while still m eeting water quality stan dards; it identifies how many pounds of that pollutant (metal s, nitrogen, bacteria, etc.) can be discharged to the water body without impairing its designated uses, whet her for fishing, swimming, shellfish harvesting, or as a safe source of drinking water. Each TMDL requires the gather ing and analysis of a substantial amount of data, meeting rigorous quality assurance specifications, as well as extensive computer modeling. A nd, as noted, every TMDL must be adopted through Florida’s public rulemaking process and subsequently given meaning through de tailed planning and pragmatic implementation strategies.

Because the TMDL program was, for practic al purposes, new in 1999 and the Watershed

Restoration Act created a variet y of complicated requirements a nd administrative processes, the legislature required DEP to report to the Governor and legislature after five years, as follows:

The department, coordinating with th e water management districts and the Department of Agriculture and Consum er Services, shall evaluate the effectiveness of the implementation of total maximum daily loads for a period of 5 years from the effective date of this act. The depart ment shall document that effectiveness, using all data and informa tion at its disposal, in a report to the Governor, the President of the Senate , and the Speaker of the House of Representatives by January 1, 2005. The report shall provide specific recommendations for statutory changes n ecessary to implement total maximum daily loads more effectively, including the development or expansion of pollution prevention and pollutant trading opportuni ties, and best management practices. The report shall also provide recommenda tions for statutory changes relating to pollutant sources which are not subject to permitting under chapter 403, Florida Statutes, or chapter 373, Florida St atutes, and which do not implement the nonregulatory practices or other measures outlined in the basin plan prepared
under s. 403.067, Florida Statutes, in accor dance with the schedul e of the plan, or fail to implement them as designed. [Section 6 of Chapter 99-223, Laws of Florida.]5 This report provides background information along with a summary of the fundamental actions taken to date to assess impair ed rivers, lakes, and estuaries; develop and adopt TMDLs; and begin the local planning efforts and follow-throu gh necessary to clean up polluted waterways. The TMDL program has been successful in fulf illing the initial objectives of the Watershed

Restoration Act. Because of the extensive ti me and effort necessary to accomplish these objectives, however, actual on-the-ground local imp lementation of TMDLs lies largely in the

future. DEP’s efforts to date have allowed the agency to identify several problems in implementing the law that were not apparent at the time of its adoption. The report documents those problems and sets forth recommendations to improve the TMDL program’s effectiveness at restoring Florida’s impaired surface wa ters and protecting them for the future.



### The Watershed Approach

The Watershed Restoration Act and the rules DE P has subsequently adopted are intended to identify Florida’s surface waters impaired by pollutants; establish scientifically-based pollutant reduction objectives (TMDLs); develop locally-bas ed plans to reduce pollutants as determined necessary by the TMDL; and promote the physical and financial mechanisms necessary to implement those plans. The scope of this mandate is both enormous—given 52,000 miles of rivers and streams, nearly 800 lakes, 4,500 square miles of estuaries, more than 700 springs, and 17 million people and growing—and complicated.

Given this challenge, DEP has developed a phase d approach to implementing the law. DEP’s comprehensive “watershed management” strate gy views the state ba sed on its natural boundaries, like river and estuary basins, rather than political boundaries. These naturallybounded areas have been organized into five “groups” of basins (s ee the color-coded map below). In 2000, DEP began addressing the firs t group of basins (Group 1) and continues to initiate activities in a new group (Groups 2 throu gh 5) each year over a fi ve-year cycle to cover the entire state. The five-year cycle will then begin again in the Group 1 basins and continue through Groups 2-5 to re-evaluat e the status of impaired waters, determine the successes and problems associated with ongoing activities, make necessary changes, and consider and address new circumstances associated with growth a nd development. The cycle will be repeated methodically and continuously over time.

Dividing the state this way has allowed DEP effici ently to manage different activities in each of the water body groupings leading to the develo pment and, ultimately, implementation of TMDLs throughout Florida. The general sequence of the five-year cycle is as follows:

1. Preliminary basin assessment focusing on existing data.

2. Strategic water quality monitoring to obtain ad ditional detailed scientific evidence of water quality conditions and adoption of basin- specific verified lists of impaired waters.

3. Data analysis and TMDL development and adoption where impairment exists.

4. Development of a Basin Management Ac tion Plan, in conjun ction with local stakeholders, to allocate, among the local s ources of pollution, re ductions necessary to

meet the TMDL.

5. Implementation of the TMDL.6 As noted, the sequence illustrated below generall y will take five years and will be repeated continuously to refine what is known about the ba sin and evaluate success in restoring impaired

waters.

DEP
District Group 1

Basins Group 2

Basins Group 3

Basins Group 4

Basins Group 5

Basins

NW OchlockoneeSt. Marks Apalachicola-Chipola ChoctawhatcheeSt.Andrews Bay Pensacola Bay Perdido Bay

NE Suwannee Lower St. Johns N/A Nassau-St. Marys Upper East Coast

Central Ocklawaha Middle St. Johns Upper St. Johns Kissimmee Indian River Lagoon

SW Tampa Bay Tampa Bay Tributaries Sarasota Bay-PeaceMyakka Withlacoochee Springs Coast

S Everglades West

Coast Charlotte Harbor Caloosahatchee Fisheating Creek Florida Keys

SE Lake Okeechobee St.Lucie-Loxahatchee Lake Worth LagoonPalm Beach Coast Southeast Coast Biscayne Bay Everglades7 To date, DEP has held formal public meetings in each of these basins, with the exception of Perdido Bay, the Florida Keys, and the Everglades , which are yet to come. There have so far been 136 public meetings in these basins de signed to introduce local citizens and other stakeholders to the TMDL program, the watershe d management cycle, the way water bodies are evaluated, and what they can do to help protect their local water resources. Some of these meetings, in areas where watershed activities have progressed further, have addressed the results of water quality monitoring and which waters appear to be impaired. Public meetings also have taken place when information to prepare a draft TMDL has been compiled and is ready for discussion. Every TMDL is subjec t to public hearing before it is adopted. During the long-term (sometimes one to two years) expected to de velop the basin plan after adoption of a TMDL, more public meetings will be conducted to keep watershed stakeholders and interested parties

informed and involved.



### Listing of Impaired Waters

Water Body Classifications and Water Quality Criteria

The foundation for identifying and prioritizing impaired surface waters is Florida’s water body classification and water quality st andards system. “Impaired wate rs” are those that do not meet

standards as a result of human- created pollutants. The state’s water quality standards system was initiated in the early 1970s in re sponse to passage of the federa l Clean Water Act and, generally, was developed to safely authorize discharges from obvious “point sources” of pollution like

domestic and industrial wastew ater facilities. In the ea rly 1970s, there was no clear understanding of how, comprehensively, to eval uate overall water qua lity or protect whole aquatic ecosystems from all sources of pollution, which are the exact objectives of the Watershed

Restoration Act of 1999. This c ontradiction of older standards and newer mandates has led to a number of dilemmas, among them:

• Most Florida waterways are identified as Cl ass III, “fishable and swimmable.” It has become clear in recent years that this classification, which includes rivers, streams, lakes

and estuaries as well as wetlands , urban drainage ditches, urba n lakes, and canal systems,

is too broad. Some of these water bodi es or water body types never did and indeed should not be expected to provide the same quality of “swimmable or fishable” recreation

as others.

• Florida’s freshwater dissol ved oxygen (DO) criterion requ ires oxygen levels in surface waters to be at or above five milligrams per liter (5 mg/l) at all times at all places

, ostensibly in an effort to protect water quality. In fact , wetlands, springs, drainage ditches, and canals do not typical ly exist, whether naturally or as artificially created, with DO levels as high as 5 mg/l, often because of the significant inflow of low-oxygen ground water into surface waters. In effect, some water bodie s are being required to meet

unnatural conditions or conditions that ar e not otherwise caused by pollutants.

• The state’s criteria for nutri ents (nitrogen and phosphorous, for example) are narrative rather than numeric, which on occasion has le d to differing interpretations by third parties

on DEP’s determination as to whether a wate r body is impaired by excessive nutrients.

• As noted in the introduction to this section, water quality standards were developed primarily to address regulation of point sources of pollution and they are applied,8 typically, at the end of the disc harge pipe, to be met at all times. It is not possible to apply this same logic to entire rivers, lakes, streams, estuaries, and other surface waters, the conditions of which vary naturally over distance and time, and which simply will not meet every water quality criterion at every moment in every location.

Florida’s existing surface wate r quality standards ar e the benchmark against which DEP must measure water body impairment and determine whether TMDLs, and subsequent clean-up actions, are necessary. The circumstances just outlined have required DEP to list as impaired some water bodies that likely are not, in fact, impaired. The result is that DEP may have to develop and adopt unnecessary TMDLs, which others will have to expend significant money to implement, wasting limited resources and diverti ng attention from real water quality problems.

This dilemma is further compounded by the fact that the initial (1998) impa ired waters listing for

Florida was based on the state’s 1996 Florida Wa ter Quality Assessment [or 305(b) Report]. That federally required report was prepared usin g the best information available at the time to generally characterize the quality of Florida’s waters; it was not designed to establish TMDL priorities and some of the older data are clearly inadequate for this purpose. Nevertheless, the 1998 list was incorporated into a 1999 Consent Decree between the Envi ronmental Protection Agency and Earthjustice—to which Florida was not a party—that impo sed a 13-year schedule for development of more than 2,000 specific TMDLs in Florida.

In passing the Florida Watershed Restoration Act of 1999, the legi slature prohibited use of the 1998 impaired waters list for any regulatory purpo se and further required DEP to develop and adopt by rule a scientific methodol ogy for developing future impaired waters lists. These were reasonable and defensible requirements; however , DEP must cope with the legacy of the 1998

list and the fact that the EPA bases its review of and challenges to Florida’s subsequent impaired waters lists on that original list and on its posture with re spect to the Consent Decree.

Florida’s Impaired Waters Rule

On April 16, 2001 Florida’s Environmental Re gulation Commission approved chapter 62-303, F.A.C., Identification of Impaired Surface Wate rs. The rule was developed after extensive consultation with a wide range of expert outs ide advisors and vetted in a variety of public workshops and hearings and coordinated with EP A Region 4 to assure it would be consistent with federal law. The rule has been under litig ation since adoption, having survived intact all legal challenges and appeals at the state level. (These challenges have all come from the same entity, the Clean Water Network.) One federa l case remains pending. Beyond this legal support, the rule’s scientific approach to identifying and listing impaired waters was conceptually endorsed by the National Academy of Sciences in 2001 after its review of the nationwide TMDL program required by Congress. [See Assessing the TMDL Approach to Water Quality Management (2001), available at http://books.nap.e du/catalog/10146.html .]

The rule provides for developing a planning list , to include those waters that may not be meeting water quality standards but for which suffici ent scientific data are not available to judge;

and a verified list , to include waters determined based on sufficient, reliable data to be failing water quality standards because of specific pollutants from human sources. The verified lists are9 publicly adopted, subject to admi nistrative challenge, for each of the 29 basins into which DEP has divided the state as part of its watershed ma nagement cycle. TMDLs must be developed and adopted for each instance of impairment identif ied on the verified lists. DEP must submit the verified lists to EPA for approval. Each water body on the planning list is further monitored to establish whether it truly is impaired. As suggested above, the planning list includes many remnants of the original ( 1998) impaired waters list.

The fundamental distinction betwee n the planning and verified lists is the availability of reliable water quality data to determine impairment. Wh ere data are absent or unreliable, DEP cannot, by law, list the water as verifiably impaired and must secure additional data. DEP works with Florida’s five water management districts a nd some 70 local governments and other entities throughout Florida that routinely co llect ambient water quality data. It is difficult to capture and qualify such a massive amount of information, and DEP is continually working on database improvements to streamline the process and enco urage more data collectors to timely upload

their data.

Environmental Protection Agency Oversight

As noted in the preceding section, DEP coordina ted development of the Impaired Waters Rule with EPA and, in fact, secured EPA’s written suppor t. However, in the more than three years of impaired waters list development since then, EP A has repeatedly added waters to the state’s verified list, for which TMDLs must then be completed. EPA has added waters to Florida’s verified list, among other instances, when:

• DEP has been unable to identify a causativ e (man-induced) pollutant and for which the water quality condition may be natural;

• When DEP has determined data to be insufficient to warrant a conclusive determination but EPA has concluded otherwise; and

• Based on EPA’s interpretation of inform ation from the federal Food and Drug

Administration’s shellfish sa nitation program that is in consistent with Florida’s interpretation of the causes of impairment.

DEP has been negotiating these complicated issues with EPA for three years, with incremental progress to date, but negotiations continue in good faith. On a hope ful note, Florida is evaluating potential changes to its water qua lity standards, relate d to the issues iden tified in “Water Body Classifications and Water Quality Criteria,” a bove, to better distinguish naturally occurring conditions from true pollution likely, which should resolve some of the disagreements.

In the meantime, it must be acknowledged that the differences between DEP and EPA over the listing process will confuse the public and regulated entities because of its occasional, but not insignificant, inconsistency. When EPA adds wate rs to Florida’s list, it creates an expectation that specific water quality improveme nts will have to be financed and undertaken in those areas when, in fact, the data may not support that conclusion. The whole purpose of DEP’s planning list is to avoid this circumstance, to create conti ngent waters in need of further data gathering and investigation to resolve uncertainti es, and to avoid diverting atten tion away from waters that are demonstrably impaired and in need of restoration.10 

### Development of TMDLs

Impaired Waters Listing

DEP divided the state into 29 basins to mana ge the evaluation of water body impairment, the development and implementation of TMDLs, and th e assessment of progress. To date, DEP has adopted Verified Lists of Impaired Waters for Groups 1 and 2, with Group 3 now in development. The primary pollutants that are cau sing the impairment of Florida’s surface waters

include:

• Nutrients , such as nitrogen and phosphorus, which pr omote the growth of algae and other aquatic plants that cause wide swings in oxyge n levels and lead to fish kills and damaged

habitat.

• Bacteria , which may threaten public health and ca n close waters to swimming or shellfish harvesting.

• Metals , such as iron, silver, copper, cadmium, an d zinc that adversel y affect the health and reproduction of aquatic organisms.

• Mercury , based largely on the existence of De partment of Health fish consumption advisories. (It generally is ag reed that mercury is predomin ately the result of atmospheric deposition, but the relative contributions of local, regional and even global sources remains the subject of debate.)

The table below lists the pollutants most ofte n identified as responsible for causing water body impairment during the development of the Groups 1 and 2 lists.

Pollutants Number of Water Body Segments Impaired Nutrients 373 segments Bacteria 236 segments Metals 61 segments Mercury (fish tissue) 40 segments

There is no reason to expect a si gnificant difference in the relati ve relationships among pollutants after DEP completes evaluation of the basins in Groups 3, 4 and 5.

TMDLs Adopted to Date

DEP has adopted, by rule, 52 TMDLs as of December 2004. Another 61 TMDLs have been proposed or are in draft. The status of these TM DLs is identified in Attachment 1. As outlined earlier, Florida law authorizes DEP to adopt TMDL s only for waters verified as impaired based on specific scientific evidence. However, th e Consent Decree between EPA and Earthjustice requires EPA to ensure timely development of all TMDLs identified in the decree, including many that Florida would not adopt under state law because documentation is problematic or inconclusive. For these waters, in cluding any waters that EPA adds to Florida’s impaired waters list, the federal agency must pr opose (if not necessarily adopt) TMDLs. As suggested during the specific discussion of impaired wa ters listing, this complicated re lationship creates confusion for the public and regulated entitie s and makes implementation of the TMDL program difficult.11 TMDL Development Problems

Beyond the conundrum just outlined, with EPA requiri ng waters to be listed as impaired that DEP cannot list pursuant to Florid a law, several other problems ha ve arisen associated with the development and adoption of TMDLs. These include:

• The EPA-Earthjustice Consent Decree’s bind ing schedule for TMDL development makes it difficult to conduct the comprehensive wate rshed assessments necessary to establish TMDLs, even for some water bodies DEP has identified as impaired. Consequently, DEP must sometimes choose to adopt premature TMDLs to enable EPA to comport with

the Consent Decree or defer to EPA to develop these TMDLs—which DEP will later have to redo and adopt pursuant to the requirements of Florida law.

• On a related note, even when sufficient time exists to establish the assimilative capacity of a water body, the timeframes in the federa l Consent Decree often preclude developing an appropriate allocation of po llutant load reductions as part of the TMDL, as required by

EPA. More time often is needed to accura tely determine loadings from all point and nonpoint sources of pollution within a watershe d and work with basin stakeholders to develop and allocate the reasonable and e quitable reductions re quired by state law.

• TMDLs are required only to abate pollutants fr om anthropogenic (man-made) activities. Bacteria and dissolved oxygen le vels in certain Florida wate rways may appear to reflect impairment upon superficial consideration but, in fact, represent naturally occurring conditions. Ideally, a water body w ould not be listed as impair ed until after the apparent “pollution” has been determined to be ma n-made. The Consent Decree deadlines once again make it impossible in some instances to conduct this necessary level of evaluation

until after a TMDL has been a dopted, whether by EPA or DEP.

The State of Florida cannot, of course, change th e federal Consent Decree to make its schedule comport with the Florida Watershe d Restoration Act. However, re visions DEP is considering to Florida’s water quality standard s, through rulemaking, should relieve some of the complications just identified

. DEP also recommends that consideration be given to authorizing DEP to adopt all or part of a Basin Management Action Plan (d iscussed in more detail, below) to allow a final TMDL allocation to be developed as part of the basin plan rath er than at the time of initial TMDL adoption, when adequate time may not be available.



### TMDL Allocations

Once a TMDL for an impaired water body has been developed, the allowabl e pollutant loads and necessary load reductions from point and nonpoint s ource dischargers must be determined so that their implementation, in conjunction with othe r management and restoration activities, will enable attainment of water quality standards. Many factors must, by law, be considered in these allocations, among them: existing treatment and management practices; available treatment technologies and other pollution reduction measur es; economic factors, in cluding cost-benefit considerations; and reasonabl e timeframes necessary to implement pollution reductions.12 Pollutant Load Allocations

Because a TMDL represents the assimilative capacity of a surface water body to withstand pollutants, it must identify how many pounds of specific pollutants can be “discharged” while still allowing the water body to meet its designated uses. In concep t, at least, the reasonable and equitable allocation of the polluta nt load reductions required to m eet the TMDL is part of its implementation phase. However, because EPA requires the initial TMDL to include such allocations, DEP must sometimes establish a pre liminary (and often premature) allocation when the TMDL is first adopted, refining it later through the development of a local Basin Management Action Plan.

The preliminary allocation, the n, is typically broad, addressi ng individual point sources (wastewater treatment facilities , for example) but treating nonpoi nt sources (agriculture, urban stormwater, septic tanks, etc.) as a whole, with no distinction among these nonpoint sources. In some cases, the initial allocation will be too broad to be useful. The final allocation arrived at through the local Basin Management Action Planning process is nece ssary to establish the fair and equitable allocation of polluta nt load reductions and must identify individua l point source dischargers and each nonpoint source discha rger or category of dischargers.

Through this basin planning process, DEP and lo cal stakeholders collect the additional data necessary to refining pollutant lo ading estimates. Better information allows full consideration of the reasonable and equitable fact ors for allocating pollutant load reductions specified in the

Watershed Restoration Act. Because the fina l allocation developed as part of the Basin Management Action Plan may differ from the pr eliminary allocation included in the initially adopted TMDL, consideration should be given to modifying the Watershed Restoration Act to allow formal adoption of all or part of a Basin Management Action Plan in the event substantive changes to an initial TMDL or its allocation are necessary.

Allocation Report to the Legislature

The approach DEP is taking in the pollutant load allocation process is based largely on the issues summarized in the agency’s January 2001 “Report to the Governor and Legislature on the Allocation of Total Maximum Daily Loads in Florida .” The report outlined several critical considerations that the agency has been implementing to the ex tent possible under current law:

• Level the playing field between point and nonpoint source s of pollution. Point sources have spent billions of dollars over the past 25 years to provide high levels of treatment or eliminate their discharges to surface waters and reuse (reclaim) the water. There is no equivalent record of success with nonpoint s ources. Therefore, DEP has focused initial pollutant load reduction stra tegies on nonpoint sources.

• Pollutant sources generally should reduce in proportion to what they contribute

.

• Pollutant loadings should be reduced in the most cost-effective manner

.

In order to promote the most cost-effectiv e opportunities to accomp lish necessary pollution reductions in a basin, consideration must be give n to pollutant trading. Trading is based on the

fact that sources in a watershed may confront very different costs to control the same pollutant.13 Trading programs allow facilities facing highe r pollution control cost s to meet pollution reduction obligations by purchasing environmentally equivalent (o r superior) reductions from other sources at lower cost, thus achieving equa l or better water quality protection at a lower overall cost. Given the disparities between point and nonpoint sources of pollution, both in characteristics and resources, it is unlikely th at the Watershed Restor ation Act can be fully realized without an equitable a nd rational system of pollutant trading. Such trading is not currently authorized by Florid a law although it is envisioned. DEP has engaged a Pollutant Trading Policy Advisory Committee to evaluate the opportunities and pitfalls of trading. Consideration should be given to amending the la w to authorize DEP to adopt pollutant trading requirements, by rule, after reporting to the legislat ure and Governor the resu lts of its evaluation.

Basin Management Action Plans

A Basin Management Action Plan, like the impl ementation plan developed for Lake Okeechobee discussed below (“TMDL Implementation”), sets forth the various projects, programs, and other

activities to be undertak en by basin stakeholders to reduce pollutant loading and restore the beneficial uses of an impaired water body. It re fines the pollutant load allocations that may only generally have been addressed in the TMDL and equitably allocates the reductions among the maximum possible number of pollutant sources in the basin. The plan attempts to integrate appropriate management strategies and provide for phased implement ation of these strategies to promote timely, cost-effective actions.

Plans must be developed with the active particip ation of basin stakeholde rs, including affected point and nonpoint source dischargers, represen tatives from local governments, the Department of Agriculture and Consumer Services, agricultural commodity groups, the local water management district, area businesses and i ndustries, homeowner groups, and environmental groups. It is this stakeholder involvement that must achieve buy-in for the often extensive, expensive actions that will have to be undertaken to reduce pollutant loadings and restore water quality. Because stakeholder involvement—and commitment to act—is essential, DEP already

has devoted considerable staff and time and re sources in conducting nearly 300 formal basin meetings and presentations along with hundreds of other contacts with individuals, elected officials, utility managers, farmers, environm ental groups, and professi onal organizations. Beyond laying out specific actions that are nece ssary to improve water quality and agreeing on responsibilities, these meetings are designed to identify and energize local leaders who will

motivate others to act.



### TMDL Implementation

Regulated vs. Unregulated Sources of Pollution

In using the Basin Management Action Planning process to establish re fined pollutant load allocations and identify the res ponsible parties for br inging about reductions, it is critical to distinguish between regulated and unregulated sources of those po llutants. Regulated sources, which are subject to permitting or other similar authorizations, typically are “point sources,” those discharges to surface waters typically havi ng a continuous flow via a discrete conveyance, such as a pipe—domestic and industrial wastewater treatment facilities, as examples. On the14 other hand, “nonpoint sources” of pollutants are char acterized as intermittent, rainfall driven, and diffuse, associated with everyday activities, including runoff from urban areas, agriculture, forestry, mining, septic tanks, and atmospheric deposition. Historically, these nonpoint source activities have not been regulat ed. Nonpoint sources also incl ude pollution resulting from the things people do every day, often without th inking, like mismanaging household pesticides, fertilizers, and yard trash, and wasting water.

More recently, some formerly nonpoint pollution sources have been redefined by Congress as point sources, subject to regul ation under the EPA’s National Pollutant Discharge Elimination System (NPDES) Program, the same federal progra m that regulates wastewater treatment facility discharges to surface waters. These sources incl ude urban stormwater discharges from larger local government master drainage systems, stormw ater from construction s ites over one acre and certain industry sectors, and vari ous animal feeding operations.

Wastewater Permits

Implementation of TMDLs for wastewater facili ties should be fairly straightforward, with specific permit effluent limits based on the pollutant loadings established in the TMDL or Basin Management Action Plan. Whether to impose these limits immediately or wait until the facility’s permit comes up for renewal will require case-by-case decisions. In general, permits would be “re-opened” to include these new limits if they have more than three years before expiration or at any time public health issues are at stake.

Regardless of when the facility-specific load allocations are incorporated into wastewater permits, DEP recognizes that permittees will ne ed reasonable amounts of time to come into compliance with new requirements. The time needed for design, financing, and construction will be negotiated with permittees as part of the permitting process and in conjunction with development of the Basin Management Action Pla n. Compliance will be required according to a prescribed schedule.

As noted above, facility-specific load alloca tions in a Basin Management Action Plan (or TMDL) likely will be incorporated directly into wastewater permits. Where the exact same effluent limits are imposed in the different documen ts (basin plan and perm it, for example), it is inappropriate to make the limits subject to administrative challenge both times. DEP recommends consideration be given to clearly establishing the legal relationship between the basin plan and permits, specifica lly to prevent third party admi nistrative challenges to permit revisions that implement the exact requirements se t forth in a basin plan that already has been adopted and subject to challenge. (Neither DEP nor regulated en tities should have to defend the exact same action twice.) All other aspects of the permit would, of course, remain subject to challenge under chapter 120, F.S.

Stormwater Permits

Unlike wastewater facilities, muni cipal stormwater discharges do not lend themselves to effluent limits achievable through standa rd treatment processes. In stead, TMDL implementation and compliance with NPDES stormwater permits will depend on the use of stormwater treatment15 best management practices, which will be set fo rth in the Basin Management Action Plan. DEP will require in any related NPDES permit that mu nicipal stormwater dischargers undertake the activities specified in the releva nt basin plan. As with wastew ater facilities, where the exact same requirements are imposed in a stormwater permit and Basin Management Action Plan, they should be subject to challenge only once.

Nonpoint, Non-Regulated Sources

Nonpoint sources of pollution generally are agreed to be the largest contri butor of pollutants to Florida’s surface and ground waters. Nonpoint so urce pollution is created either by rainfall flushing the pollutants from the landscape (stormwa ter runoff) or by the leaching of pollutants through the soil into the ground water. Typica l sources include agricu ltural and silvicultural lands; erosion and sedimentati on from unvegetated lands, construction sites and unpaved roads; onsite sewage treatment and disposal systems, such as septic tanks; and uncontrolled urban

stormwater runoff.

Florida has been a national le ader in addressing nonpoint sources of pollution for more than 20 years, through both non-regulatory and a limited repertoire of regul atory mechanisms. As noted above, certain municipal stormwater systems, ag ricultural sites, and industry sectors now are subject to permitting. However, most agricultur al and forestry operations, older developments, and many urban areas remain exempt from e ffective stormwater treatment regulation. Traditional regulation of some or all of thes e remaining areas is not necessarily the most effective approach to pollution control, which ha s led to the development of an ever-increasing catalog of best management practices and mechan isms for applying them, which are discussed in

some detail below.

The Lake Okeechobee Protection Plan

The Lake Okeechobee Protection Plan is the first TMDL implementation plan to be developed in full and where large-scale implem entation is underway; it is a c ooperative effort among DEP, the Department of Agriculture and Consumer Se rvices, the South Florida Water Management District, the Natural Resources Conservation Services, and stake holders in the Lake Okeechobee

watershed. The Lake Okeechobee Protection Plan se ts forth the myriad projects (public works, best management practices, and others) needed to reduce phosphorus loadi ngs to the lake and addresses a watershed covering more than 3.4 m illion acres of citrus, sugar cane, dairy, row crops, pastureland, sod farms, woodlands, and urba n environment. The total estimated cost of the plan is well over $800 million, with a little more than half that amount anticipated to be funded through the Comprehensive Everglades Restoration Plan.



### Development of Best Management Practices

The Watershed Restoration Act pr ovides authority and guidance to DEP, the Department of Agriculture and Consumer Services and the wate r management districts to develop and adopt, by rule, best management practices to address both agricultural and non-ag ricultural sources of surface water pollution. Best management practices —generally, site-specific or activity-specific designs, technique, or other measures that reduc e runoff of specific pollutants—are essential to16 effective implementation of TMDL s, especially for non-point sources of pollution. There are many different types of best management practices , both structural and n on-structural, and they are developed alone or in combination to deal with specific circumstances.

The Act also requires DEP to verify the adequ acy of these best mana gement practices at achieving water quality standards. In excha nge for appropriately implementing adopted and verified practices, agricultural operations are granted a “presumption of compliance” with water quality standards for the specific “pollutant(s) of concern” along with a limited “waiver of liability” for any practices that unexpectedly prov e not to be effective in protecting water quality with respect to that pollutant(s ). And, where the measures, in fact, prove ineffective, the Act requires the state agencies to re-evaluate and improve the best management practices.

Agricultural Activities

The Florida Department of Agriculture and Cons umer Services, in coordination with DEP, has

concentrated its extensive effort s on developing agricultural best management practices in areas where waters are impaired and for priority agri cultural sectors, like citrus, cow/calf operations,

and containerized nurseries. It has worked w ith producers and experts at the University of Florida’s Institute of Food and Agricultural Sciences (IFAS) to identify practices or combinations of practices that ar e likely to have the biggest wate r quality benefit while balancing technological and economical feasibility.

Working with the affected agricultural sectors to determine which measures are practical and economical increases the likelihood that agricult ural operations will buy into the process and implement the practices—the nature of the water quality problems mu st be clear as must the fact that it is in operators’ best long-term interests, bot h economic and social, to reduce pollution.

Federal and state cost-share assistance is also critical to defraying the significant capital costs associated with some measures. Buy-in is esse ntial given that agricultu ral operations are largely unregulated at this time and success is dependent on cooperative implementation.

This strategy to address pollution from agricu ltural sources has made tremendous progress over the last five years. The Department of Agri culture and Consumer Serv ices has successfully developed a broad range of best management pr actices and, working with the various commodity groups, is securing commitments to implement them. Funding the implementation of these practices—leveraging private and state resources to secure federal money—remains a significant challenge although, here again, progress is being made and the Department of Agriculture and

Consumer Services has invested m illions of dollars in these efforts. In the end, the key will be whether, over the long term, agri cultural operators su ccessfully operate and maintain verified best management established in ea ch Basin Management Action Plan.

Non-Agricultural Activities

DEP has been working with the water management districts, local govern ments, the development community, the landscaping and golf course commun ities, and the state’s universities to improve existing urban stormwater treatment best manage ment practices and develop new ones. Indeed, over the last five years, DEP has funded nearly $26 million in stormwater treatment projects in17 an effort to develop better practices that can be deployed statewide; the total cost of these projects has been more than $65 million. Research is ongoing to improve the treatment removal efficiency of traditional urban stormwater practices such as wet detention ponds, especially for nutrients. Other research is investigating the environmental and economic benefits of “green roofs,” which involve more or less complicated soil and vegetation covers to reduce the volume and pollutant loading of runoff, particularly cr ucial for large footprint developments, industrial warehouses and other large structur es. Similarly, research on perv ious (permeable) concrete and stormwater reuse is demonstrating the potential for use in more urbanized areas to reduce stormwater volume and pollutants. Research by the Institute of Food and Agricultural Sciences is generating critical data on optimal fertiliz ation and irrigation to maintain turf grass and ornamental landscaping, which currently ar e major sources of nutrient pollution.

Detailed best management practices for non-agri cultural situations have been under development longer than they have in the agri cultural arena, at least in term s of their deployment for pollution control. In some instances, they have been incorporated into permitting and other regulatory

programs.

Verifying the Effectiveness of Best Management Practices

Best management practices may be as much art as science. That is, given the complexities and varying character of nonpoint s ources of pollution, the many diffe rent and changing land uses, the range of pollutants involved, a nd the different types of resour ces of owners and operators, one size definitely does not fit all. Furthermore, it may take multiple iterations of some measures to achieve success in protecting water quality. Fo r these reasons, verifyin g the effectiveness of best management practices is critical—both to protect water quality and to avoid unwarranted granting of the presumptions of compliance a nd waivers of liability contemplated in the

Watershed Restoration Act discus sed above. Under the law, DEP is responsible for verifying that best management practices protect water quality.

For agricultural best management practices , DEP’s verification process is undertaken in conjunction with the Department of Agricultur e and Consumer Servi ces. Because of the diversity of Florida’s agricultural industry, there is a wide range of available and evolving best management practices to account for local, regi onal, and watershed diffe rences as well as commodity differences. Verifying each specific practice in each specific area, or on every farm, simply is not practical or affordable. DEP mu st be able to employ a generalized verification process using expert assistan ce to extrapolate from representative circumstances the implications, in terms of effectiveness and f easibility, for deployment of best management practices on a watershed scale. This approach is bolstered by water quality monitoring data gathered before and after implementation to va lidate success. Any best management practice that proves deficient over time will be reevaluated and modified or replaced.

Unlike agricultural operations, many other nonpoint sources of pollution ar e at least partially regulated, with non-agricultural best management practices being an integral component of that regulation. Data and experience from im plementing stormwater treatment regulations for new development over the last 20 years has led to the verification of a number of long-standing stormwater treatment best management practices. However, verifying the effectiveness of some18 non-agricultural best management practices has si milar limitations to verification of agricultural practices, requiring a generalized rather than site-by-site approach. And, as with all best management practices, appropriate monitoring is critical to evaluati ng long-term success.

Improving the Implementation of Best Management Practices

As just outlined, best management practices are in various stages of development. A number have been adopted or are nearing adoption. Verification is a complicated and sometimes iterative process. In order to assure that it will be as meaningful as possible, DEP believes changes to the Watershed Restoration Act should be considered to promote a more flexible and effective verification strategy. Furthermore, best management practices must meet the environmental objectives of the TMDL and th ere must be broad participation among the agricultural community and others to implement them or they will be worthless. For that reason, DEP also believes consideration should be give n to making the best management practices and other pollutant loading reducti ons for non-regulated entities in adopted basin plans legally binding. Entities that fail to live up to commit ments in the basin plan should be subject to appropriate sanctions. These changes would help assure that the statut orily required “reasonable and equitable” allocation of pollutant load redu ctions among all parties, point and non-point source alike, in a given basin ha s a realistic chance of being ac hieved. The changes also are necessary to assure EPA that nonpoint sources will be held accountable for their fair share of pollutant load reductions in a basin—without that assurance, it has become clear that EPA will step in and force regulated enti ties (public utilities, local governments, indus trial facilities) to bear the burden of achieving all reductions, no matter how disproportionate that burden.



### Summary of Progress and Potential Statutory Changes

The Florida Watershed Restora tion Act requires DEP to undertak e many actions before on-theground implementation of TMDLs can occur: assessments of the state’s waterways; determination and documentation of impairment; a doption of priority lists of impaired waters; development and adoption, by rule, of TMDLs; a nd negotiation of basin pl ans to establish and promote the specific actions necessary to achieve the TMDL-based pollution reductions. It is

these actions that have consumed DEP’s attenti on since adoption of the Act in 1999. For that reason, full-scale implementation of the 52 TMDL s adopted to date is just beginning.

As noted in the report, the Lake Okeechobee Prot ection Plan is the first TMDL implementation plan to be developed in full and where large-s cale implementation is underway. While the Lake Okeechobee plan cannot be considered a “typi cal” TMDL, most TMDLs and their subsequent implementation plans will have a similar, if ge nerally less expensive, flavor. Other large implementation plans that are we ll on their way to completion i nvolve the Oklawaha and Lower

St. Johns River basins. The Lake Okeec hobee Protection Plan is available at http://www.sfwmd.gov/org/wrp/wrp_ok ee/projects/protection_plan.html and offers an example

of the kinds of issues that will be addr essed in basin plans throughout the state.

It is too early, then, to evalua te in general terms the success of TMDL implementation to date. Demonstrable water quality improvements associated with even the simplest TMDL in the least complicated basin with the fewest sources of pol lutants may take years to materialize—a fact19 that is not formally recognized in the Waters hed Restoration Act. The cyclical watershed management process was established, in part , to account for the long-term—to set TMDL objectives, implement programs to meet them, an d evaluate the outcomes on a continual basis.

Statutory Changes for Consideration

This report has summarized implementation of the Watershed Restoratio n Act of 1999 to date, identifying the difficult but successful beginnings of the TMDL program along with a number of implementation problems encountered along the wa y. One specific purpose of the report, set forth in the law creating the Watershed Restor ation Act, is to make recommendations for statutory changes that would improve the impl ementation of TMDLs. Various recommendations have been suggested in the report and are summar ized below. Consideration should be given to the following:

• Formally recognize the Basin Management Ac tion Plan, set forth the requirements of such a plan, and authorize DEP to adopt all or part of the plan, when appropriate, to make it enforceable and afford affected pa rties an opportunity to challenge it.

• Authorize the development of a preliminary allocation at the time of TMDL adoption with its refinement in the Basin Manageme nt Action Plan, when adequate data have become available, and address the situa tion where substantive changes take place between the initial TMDL and the necessary final allocations.

• Formally recognize that reducing pollutant lo adings to achieve wa ter quality standards may require phased implementation over many years, including multiple permitting cycles, because of the cost s and physical requirements to implement wastewater and stormwater treatment infrastructure pr ojects and best management practices.

• Clearly establish the legal relationship between the basin plan and permits, specifically to prevent third party challenges to permit revisi ons that implement the exact requirements set forth in a basin plan that already has b een adopted and subject to challenge; all other aspects of the permit would be subject to challenge. The obj ective is not to reduce public participation but to pre-empt frivolous chal lenges to actions that already have been documented and previously subject to challenge.

• Slightly modify the best management prac tice verification process to make it more

flexible and effective.

• Preclude a non-regulated entity that does not appropriately implem ent best management practices adopted in a basin plan from any presumption of compliance with state water quality standards or a waiver of liability; establish that adopted basin plans are legally binding and any entity that fails to implemen t its commitments is subject to appropriate sanctions. These changes would promote th e “reasonable and equitable” allocation of pollutant load reductions among all parties in a given basin already required in the law.

• Authorize DEP to adopt pollutant trading ru les after reporting to the legislature and

Governor the results of its ev aluation of pollutant trading.



### Funding

The last issue to be consider ed in this report is funding, in cluding operational moneys. The report recommends consideration of statutory ch anges that would improve the TMDL program;20 make implementation more efficient and effective; and reduce the costs regulated entities, local governments, agriculture, other bus inesses and industries, and Flor ida’s citizens would have to bear to improve water quality in this state. At the same time, those changes would increase DEP’s responsibilities, workload and corresponding costs. DEP will be unable to absorb these additional costs within its existing budget. To date, DEP has received non-recurring appropriations in each of three years, as follows:

• 2002-03 - $2.2 million (no FTE), for impaired waters listing, TMDL development, TDML rule adoption, basin management planning, legal assistance, etc.

• 2003-04 - $2.2 million (no FTE), for the same responsibilities.

• 2004-05 - $6.6 million (no FTE), for the same re sponsibilities plus one-time research and development projects to evaluate Florida’s ex isting water quality standards for bacteria, dissolved oxygen, and nutrients.

• 2005-06 – Pending.

In order to more successfully discharge these obligations, implement the additional recommendations in this report, and fulfill the ov erall mandates set forth in federal law and the Florida Watershed Restoration Act, consideration should be given to funding beyond Fiscal Year 2005-06. DEP recommends consideration of the following:

• Annual appropriations of $2.5 million to $4 m illion. This amount is substantially less than EPA’s estimate of the resources required to implement a Florida-equivalent program

but would be sufficient to run a successful baseline program. In general, making such funding available for the progr am would increase the timeliness of TMDL development and adoption, completion of basin manageme nt planning, and implementation of on-theground projects to clean up Fl orida’s impaired waters.

• Program funding could continue to come from historical sources (the Water Quality Assurance Trust Fund or Land Acquisition Trus t Fund), when moneys are available. General Revenues also could be an appropriate source as this program is statewide, broad in scope, and is intended to achieve a pub lic good (water quality and public health protection).

o Consideration also could be given to generating new revenues through limited water quality protection fees on materials that lead to pollution and the increased use of which is driven by growth, such as fertilizers, cement, asphalt, and pesticides. Depending on the scope of th ese fees, funds could be generated not simply for program operation, which is re latively inexpensive, but to finance restoration projects across the state, supplementing the hundreds of millions of dollars of local government and private-s ector resources that will be required over time to restore and protect Florida’s surface waters.

More information on TMDL funding, includi ng project and operational funding as well as information on potential revenue sour ces, is included in Attachment 2GROUP NAME BASIN LISTED IMPAIRMENTCAUSATIVEPOLLUTANT% REDUCTION ORWATER QUALITYTARGET STATUSOCKLAWAHA TROUT LAKE NUTRIENTS TOTAL PHOSPHORUS 80.0% AdoptedSUWANNEE FENHOLLOWAY RIVER AT MOUTH COLIFORMS TOTAL COLIFORMS 61.0% AdoptedLOWER ST. JOHNS LOWER ST. JOHNS RIVER / FRESH NUTRIENTS TOTAL NITROGEN 8,570,260 KG/YR AdoptedLOWER ST. JOHNS LOWER ST. JOHNS RIVER / FRESH NUTRIENTS TOTAL PHOSPHORUS 500,325 KG/YR AdoptedLOWER ST. JOHNS LOWER ST. JOHNS RIVER / MARINE NUTRIENTS TOTAL NITROGEN 1,472,984 KG/YR AdoptedOCKLAWAHA HATCHET CREEK IRON IRON 30.8% AdoptedOCKLAWAHA HATCHET CREEK COLIFORMS TOTAL COLIFORMS 62.0% AdoptedOCKLAWAHA LAKE YALE NUTRIENTS TOTAL PHOSPHORUS 10.0% AdoptedOCKLAWAHA LAKE YALE CANAL NUTRIENTS TOTAL PHOSPHORUS 10.0% AdoptedOCKLAWAHA NEWNANS LAKE NUTRIENTS TOTAL NITROGEN 74.0% AdoptedOCKLAWAHA NEWNANS LAKE NUTRIENTS TOTAL PHOSPHORUS 59.0% AdoptedOCKLAWAHA ORANGE LAKE NUTRIENTS TOTAL PHOSPHORUS 45.0% AdoptedOCKLAWAHA PALATLAKAHA RIVER DISSOLVED OXYGEN BOD 12.8% AdoptedOCKLAWAHA PALATLAKAHA RIVER DISSOLVED OXYGEN TOTAL NITROGEN 5.2% AdoptedOCKLAWAHA PALATLAKAHA RIVER DISSOLVED OXYGEN TOTAL PHOSPHORUS 7.2% AdoptedOCKLAWAHA SWEETWATER BRANCH COLIFORMS FECAL COLIFORMS 70.0% AdoptedOCKLAWAHA TROUT LAKE NUTRIENTS TOTAL NITROGEN 60.0% AdoptedOCKLAWAHA TUMBLING CREEK COLIFORMS FECAL COLIFORMS 74.0% AdoptedOCKLAWAHA TUMBLING CREEK COLIFORMS TOTAL COLIFORMS 91.0% AdoptedOCKLAWAHA LAKE CARLTON NUTRIENTS TOTAL PHOSPHORUS 59.0% AdoptedOCKLAWAHA OCKLAWAHA RIVER ABOVE DAISY COLIFORMS TOTAL COLIFORMS 43.6% AdoptedOCKLAWAHA HOGTOWN CREEK COLIFORMS FECAL COLIFORMS 51.0% AdoptedOCKLAWAHA LAKE APOPKA DISSOLVED OXYGEN TOTAL PHOSPHORUS 15.9 METRIC TONS/YR AdoptedOCKLAWAHA LAKE APOPKA NUTRIENTS TOTAL PHOSPHORUS 15.9 METRIC TONS/YR AdoptedOCKLAWAHA LAKE BEAUCLAIR NUTRIENTS TOTAL PHOSPHORUS 85.0% AdoptedOCKLAWAHA LAKE DORA NUTRIENTS TOTAL PHOSPHORUS 67.0% AdoptedOCKLAWAHA LAKE EUSTIS NUTRIENTS TOTAL PHOSPHORUS 43.0% AdoptedTMDLs: Adopted and Proposed as of December 2004Attachment 11GROUP NAME BASIN LISTED IMPAIRMENTCAUSATIVEPOLLUTANT% REDUCTION ORWATER QUALITYTARGET STATUSTMDLs: Adopted and Proposed as of December 2004Attachment 1OCKLAWAHA LAKE GRIFFIN NUTRIENTS TOTAL PHOSPHORUS 66.0% AdoptedOCKLAWAHA HELENA RUN NUTRIENTS TOTAL PHOSPHORUS 32.0% AdoptedOCKLAWAHA LAKE HARRIS NUTRIENTS TOTAL PHOSPHORUS 32.0% AdoptedOCKLAWAHA LITTLE LAKE HARRIS NUTRIENTS TOTAL PHOSPHORUS 32.0% AdoptedOCKLAWAHA LAKE WAUBERG NUTRIENTS TOTAL NITROGEN 2062 LBS/YR AdoptedOCKLAWAHA LAKE WAUBERG NUTRIENTS TOTAL PHOSPHORUS 374 LBS/YR AdoptedTAMPA BAY TRIBUTARIES SPARKMAN BRANCH COLIFORMS FECAL COLIFORMS 59.3% AdoptedTAMPA BAY TRIBUTARIES SPARKMAN BRANCH COLIFORMS TOTAL COLIFORMS 86.1% AdoptedTAMPA BAY TRIBUTARIES HILLSBOROUGH RIVER COLIFORMS TOTAL COLIFORMS 62.3% (WET) AdoptedTAMPA BAY TRIBUTARIES HILLSBOROUGH RIVER COLIFORMS TOTAL COLIFORMS 26.5% (DRY) AdoptedTAMPA BAY TRIBUTARIES HILLSBOROUGH RIVER COLIFORMS FECAL COLIFORMS 51.2% AdoptedTAMPA BAY TRIBUTARIES HILLSBOROUGH RIVER COLIFORMS TOTAL COLIFORMS 52.9% AdoptedTAMPA BAY TRIBUTARIES LAKE HUNTER NUTRIENTS TOTAL NITROGEN 80.0% AdoptedTAMPA BAY TRIBUTARIES LAKE HUNTER NUTRIENTS TOTAL PHOSPHORUS 80.0% AdoptedTAMPA BAY TRIBUTARIES BAKER CREEK COLIFORMS FECAL COLIFORMS 44.4% AdoptedTAMPA BAY TRIBUTARIES BAKER CREEK COLIFORMS TOTAL COLIFORMS 41.5% AdoptedTAMPA BAY TRIBUTARIES FLINT CREEK COLIFORMS FECAL COLIFORMS 51.2% AdoptedTAMPA BAY TRIBUTARIES FLINT CREEK COLIFORMS TOTAL COLIFORMS 41.5% AdoptedTAMPA BAY TRIBUTARIES BLACKWATER CREEK COLIFORMS FECAL COLIFORMS 71.6% (WET) AdoptedTAMPA BAY TRIBUTARIES BLACKWATER CREEK COLIFORMS FECAL COLIFORMS 58.1% (DRY) AdoptedTAMPA BAY TRIBUTARIES BLACKWATER CREEK COLIFORMS TOTAL COLIFORMS 62.6% (WET) AdoptedTAMPA BAY TRIBUTARIES BLACKWATER CREEK COLIFORMS TOTAL COLIFORMS 48% (DRY) AdoptedTAMPA BAY TRIBUTARIES CYPRESS CREEK COLIFORMS TOTAL COLIFORMS 57.0% AdoptedTAMPA BAY TRIBUTARIES NEW RIVER COLIFORMS FECAL COLIFORMS 35.3% AdoptedTAMPA BAY TRIBUTARIES NEW RIVER COLIFORMS TOTAL COLIFORMS 43.6% AdoptedOCKLAWAHA ALACHUA SINK NUTRIENTS TOTAL NITROGEN NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER AB LAKE OCK. DISSOLVED OXYGEN TOTAL PHOSPHORUS NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER AB LAKE OCK. NUTRIENTS TOTAL PHOSPHORUS NO TMDL SET NEW DRAFT 1/052GROUP NAME BASIN LISTED IMPAIRMENTCAUSATIVEPOLLUTANT% REDUCTION ORWATER QUALITYTARGET STATUSTMDLs: Adopted and Proposed as of December 2004Attachment 1OCKLAWAHA OCKLAWAHA RIVER ABOVE DAISY BOD BOD NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER ABOVE DAISY DISSOLVED OXYGEN TOTAL PHOSPHORUS NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER ABOVE DAISY NUTRIENTS TOTAL PHOSPHORUS NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER/SUNNYHILL BOD BOD NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER/SUNNYHILL DISSOLVED OXYGEN TOTAL PHOSPHORUS NO TMDL SET NEW DRAFT 1/05OCKLAWAHA OCKLAWAHA RIVER/SUNNYHILL NUTRIENTS TOTAL PHOSPHORUS NO TMDL SET NEW DRAFT 1/05LAKE OKEECHOBEE CHANDLER HAMMOCK SLOUGH DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE CHANDLER HAMMOCK SLOUGH NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDOCKLAWAHA CROSS CREEK BOD TOTAL NITROGEN SEE LOCHLOOSA PROPOSEDOCKLAWAHA CROSS CREEK DISSOLVED OXYGEN TOTAL NITROGEN SEE LOCHLOOSA PROPOSEDOCKLAWAHA CROSS CREEK NUTRIENTS TOTAL NITROGEN SEE LOCHLOOSA PROPOSEDOCKLAWAHA CROSS CREEK BOD TOTAL PHOSPHORUS SEE LOCHLOOSA PROPOSEDOCKLAWAHA CROSS CREEK DISSOLVED OXYGEN TOTAL PHOSPHORUS SEE LOCHLOOSA PROPOSEDOCKLAWAHA CROSS CREEK NUTRIENTS TOTAL PHOSPHORUS SEE LOCHLOOSA PROPOSEDTAMPA BAY DELANEY CREEK COLIFORMS TOTAL COLIFORMS 56.6% PROPOSEDTAMPA BAY DELANEY CREEK COLIFORMS FECAL COLIFORMS 60.8% PROPOSEDTAMPA BAY DELANEY CREEK DISSOLVED OXYGEN BOD 72.0% PROPOSEDTAMPA BAY DELANEY CREEK DISSOLVED OXYGEN TOTAL NITROGEN 72.0% PROPOSEDTAMPA BAY TRIBUTARIES GAMBLE CREEK COLIFORMS FECAL COLIFORMS 31.2% PROPOSEDTAMPA BAY TRIBUTARIES GAMBLE CREEK COLIFORMS TOTAL COLIFORMS 29.0% PROPOSEDTAMPA BAY TRIBUTARIES GAP CREEK COLIFORMS FECAL COLIFORMS 43.3% PROPOSEDLAKE OKEECHOBEE HENRY CREEK DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE HENRY CREEK NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDAPALACHICOLA - CHIPOLA HUCKLEBERRY CREEK COLIFORMS FECAL COLIFORMS 68.3% PROPOSEDTAMPA BAY TRIBUTARIES LAKE THONOTOSASSA UN-IONIZED AMMONIA TOTAL NITROGEN 65,596 KG/YEAR PROPOSEDLAKE OKEECHOBEE LETTUCE CREEK DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE LETTUCE CREEK NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDOCKLAWAHA LOCHLOOSA LAKE OUTLET NUTRIENTS TOTAL NITROGEN 38.8% PROPOSEDOCKLAWAHA LOCHLOOSA LAKE OUTLET NUTRIENTS TOTAL PHOSPHORUS 60.0% PROPOSED3GROUP NAME BASIN LISTED IMPAIRMENTCAUSATIVEPOLLUTANT% REDUCTION ORWATER QUALITYTARGET STATUSTMDLs: Adopted and Proposed as of December 2004Attachment 1TAMPA BAY LONG BRANCH COLIFORMS FECAL COLIFORMS 56.5% PROPOSEDTAMPA BAY LONG BRANCH COLIFORMS TOTAL COLIFORMS 44.2% PROPOSEDTAMPA BAY LONG BRANCH DISSOLVED OXYGEN BOD 70.0% PROPOSEDTAMPA BAY LONG BRANCH DISSOLVED OXYGEN TOTAL NITROGEN 70.0% PROPOSEDTAMPA BAY TRIBUTARIES LOWER SWEETWATER CREEK COLIFORMS FECAL COLIFORMS 62.3% PROPOSEDTAMPA BAY TRIBUTARIES LOWER SWEETWATER CREEK COLIFORMS TOTAL COLIFORMS 62.4% PROPOSEDTAMPA BAY TRIBUTARIES LOWER SWEETWATER CREEK NUTRIENTS TOTAL NITROGEN 20.0% PROPOSEDTAMPA BAY TRIBUTARIES LOWER SWEETWATER CREEK DISSOLVED OXYGEN TOTAL NITROGEN 20.0% PROPOSEDTAMPA BAY MCKAY BAY DISSOLVED OXYGEN TOTAL NITROGEN 5.7% PROPOSEDTAMPA BAY MCKAY BAY NUTRIENTS TOTAL NITROGEN 5.7% PROPOSEDLAKE OKEECHOBEE MOSQUITO CREEK DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE MOSQUITO CREEK NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE MYRTLE SLOUGH DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE MYRTLE SLOUGH NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE NUBBIN SLOUGH DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE NUBBIN SLOUGH NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE OTTER CREEK DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE OTTER CREEK NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDTAMPA BAY ROOSEVELT DRAIN COLIFORMS FECAL COLIFORMS 66.7% PROPOSEDLAKE OKEECHOBEE S-135 DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE S-135 NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE TAYLOR CREEK DISSOLVED OXYGEN TOTAL PHOSPHORUS 0.159MG/L PROPOSEDLAKE OKEECHOBEE TAYLOR CREEK NUTRIENTS TOTAL PHOSPHORUS 0.159MG/L PROPOSEDTAMPA BAY TRIBUTARIES THIRTYMILE CREEK DISSOLVED OXYGEN TOTAL NITROGEN 3.0 MG/L PROPOSEDTAMPA BAY TRIBUTARIES THIRTYMILE CREEK NUTRIENTS TOTAL NITROGEN 3.0 MG/L PROPOSEDTAMPA BAY TRIBUTARIES WARES CREEK COLIFORMS FECAL COLIFORMS 72.3% PROPOSEDTAMPA BAY TRIBUTARIES WARES CREEK COLIFORMS TOTAL COLIFORMS 20.0% PROPOSEDTAMPA BAY TRIBUTARIES WILLIAMS CREEK COLIFORMS FECAL COLIFORMS 56.8% PROPOSEDTAMPA BAY TRIBUTARIES WILLIAMS CREEK COLIFORMS TOTAL COLIFORMS 35.0% PROPOSED41 Attachment 2 TMDL Funding

Program Operational Funding: As noted in the report, the le gislature has appropriated the following amounts to DEP to operate the TMDL program:

Fiscal Year Amount Funding Source 2002-03 $2,200,000 Permit Fee Trust Fund 2003-04 $2,200,000 Land Acquisition Trust Fund 2004-05 $6,600,000 Land Acquisition 2005-06 Pending Pending

For FYs 2002-03 and 2003-04, funds were used to conduct monitoring; develop scientific water quality computer models and databases; asse ss impaired waters; devel op and adopt TMDLs, by rule; begin basin management planning; and prov ide legal assistance. The bulk of the funds (64%) went to outside private c ontractors; 17% went for legal as sistance and 19% for monitoring equipment. DEP received no FTEs to implement the program and funds no FTEs from the appropriations. Program FTEs have b een diverted from other DEP programs.

In the current fiscal year (2004-05), the activit ies outlined above continue. The additional $4.4 million appropriated for the current year is being used to fund one-time (c ontracted) research and development projects to evaluate Florida’s existing water quality standards for bacteria, dissolved oxygen, and nutrients.

Historically, TMDL program operations have been funded from trust funds with available cash. In order to promote long-term wa ter quality clean-up efforts, c onsideration should be given to annual appropriations of $2.5 - $4.0 million. Funding source options include:

• Continued use of appropriate trus t fund moneys, when available.

• General Revenue.

• Generate revenues through limited water quality protection fees on materials that lead to pollution and the increased use of which is driv en by growth, such as fertilizers, cement, asphalt, and pesticides. The table below (1990 data) provides an idea of what such fees could generate:

Revenue Generated at Fee per Pound
Material Annual Production (lbs) $0.01 per pound $0.10 per pound
Fertilizer 412,783,360 $ 4,127,833 $ 41,278,336
Cement 7,910,000,000 79,100,000 791,000,000 Asphalt 2,336,400,000 23,364,000 233,640,000 Pesticides 34,662,012 346,620 3,466,201
TOTALS 10,693,845,372 $106,938,453 $1,069,384,537

Depending on the level of fees, revenues c ould be generated not only for program operations but also to subsidize the kinds of local government projects that will be needed to restore water quality and protect it into the future.2 Project Funding: The legislature authorized DEP and the Department of Agriculture and Consumer Services each year to split 0.5% of remaining Documentary Stamp revenues (after multiple large distributions to ot her purposes) to conduct research and demonstration projects for urban and agricultural best management practices and to implement best management practices or urban stormwater projects thr ough cost-sharing with project s ponsors. DEP also has used EPA grants to fund supplemental water quality m onitoring. Since 2000, DEP has expended nearly $17,500,000 on these efforts. DEP also has dir ected $26 million in other federal 319 grant funding to TMDL-related stormwater treatment proj ects over the last five years, including:

• Wetland treatment processes in the Lake Okeechobee basin.

• Evaluating the health effects of stormwater reuse.

• Implementation of “green roof” design and installation projects.

• Evaluating turf grass nutrient requirements.

• Stormwater infrastructure (re trofit) projects for Sanford (River Walk), Maitland, Lake Worth, Seminole County, Lee County, Titusvi lle, Ocoee, Lake County, Bayou Chico, and Choctawhatchee Bay.

The total cost of the 319-funded projects, considering local contributions, is more than $65

million.

It also should be noted that DEP’s Clean Water State Revolving Fund (SRF) loan program provides financial assistance every year (in the form of low-interest loans) to local governments and some private entities to bu ild water quality protection proj ects—wastewater and stormwater treatment facilities, reclaimed water projects, and structural agricultural best management practices. While funding for projects is not limite d to impaired waters, the program prioritizes projects that are implemented to address TMDLs and restore impaired waters. The SRF program provides $120-$150 million for projects annually and, since its inception in 1988, has awarded more than $1.7 billion for water quality protection projects.