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Bills Ratifying Significantly Lower Nutrient Limits
for Developments Get Closer to Becoming Law
About the Bills:
SPB 7040 and HB 7053 will ratify the Department of Environmental Protection’s (DEP) revisions to the stormwater rules within Chapter 62-330 of the Florida Administrative Code. Most development in the state requires an Environmental Resource Permit (ERP) pursuant to Chapter 62-330 prior to construction of any stormwater management system. Many development projects are required to obtain ERPs to address runoff from roads, sidewalks and other impervious surfaces; these management systems must be operated and maintained in perpetuity. With limited exceptions, these rules significantly reduce the amount of nutrients (specifically, nitrogen and phosphorus) in stormwater leaving new developments. SPB 7040 and HB 7053 clarify provisions relating to grandfathered projects, provide that certain entities implementing best management practices under different laws are not subject to new, duplicative inspection requirements, and allow less restrictive treatment standards for redevelopment projects in areas with impaired waters.
How We Got Here:
DEP amended its stormwater rules to implement the 2020 Clean Waterways Act. Those amendments update the nutrient removal performance standards for stormwater systems, suggest design options to meet the standards, and impose new operation and maintenance requirements. The majority of the changes can be found in Sections 8 and Section 9 of the ERP Applicant’s Handbook. Because of the expected high cost of implementation, the rule cannot be finalized without the ratification.
What’s In, What’s Out:
Projects requiring ERPs are subject to the new standards, but certain grandfathering applies. Existing projects and ERPs are grandfathered unless major changes are made; this grandfathering also includes future phases of projects with an unexpired conceptual ERP under certain circumstances. Redevelopment projects on sites one acre or less in size are exempt, and less stringent nutrient standards apply to redevelopments larger than one acre. The rules also contain what DEP calls a “glide path” for all new activities and projects that provides grandfathering for individual and general ERP applications declared to be “complete” within one year after the effective date of the rule. The bill’s current proposed effective date will be upon signature by the Governor. Conceptual permit applications are not grandfathered, meaning only projects with a conceptual permit issued before the Governor signs the bill are grandfathered. Because applications can easily take more than six months to be deemed complete, the clock is ticking for developments to submit their permit applications to be grandfathered under the glide path.
Current Bill Status:
The House version of the ratification bill passed favorably out of the Water Quality Supply & Treatment Subcommittee on Tuesday, and the Senate version passed favorably out of the Environment and Natural Resources Committee last week. Stearns Weaver Miller has been closely tracking both rule development and the ratification journey in the Legislature, including working with legislators and stakeholders to lessen the economic impact of implementing the rules.
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