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Senate Bill 712 Overview Letter for Agricultural Producers

The recently adopted Senate Bill 712 has resulted in many questions.  UF/IFAS Levy County Agriculture Agent, Mark Warren, wrote the following letter to help clarify some of the details.  The letter is available for agents to use with their local growers.  Make sure to copy the local FDACS Office of Ag Water Policy staff when sending out the letter. This letter has been reviewed within UF/IFAS and the FDACS Office of Ag Water Policy. To preserve accuracy, this version should not be altered.

 

Letter written by Mark Warren. 

August 6, 2020

To: (Florida) County Agricultural Producers

RE: Senate Bill 712 Overview

Many of you have already received a letter from FDACS, signed by Christopher Pettit, Director of FDACS, Office of Agricultural Water Policy (OAWP), outlining the newly adopted SB 712. This letter seeks to clarify several aspects of the new requirements and provide additional details about the letter.

SB 712, titled the Clean Waterways Act, was signed into law on June 30th by Gov. Ron DeSantis.

SB 712 Background and Scope

As its name implies, the law is focused on minimizing the effects of nutrient related pollution to protect the state’s critical water resources.

While both the FDACS letter and some industry related media sources might imply that the legislative changes are strictly targeted at Florida’s agricultural producers, it might give you some peace of mind to know that many known potential contributors of nutrient pollution are being addressed by SB 712. This is not to minimize the importance of this law to the agriculture industry but demonstrates that agriculture isn’t being singled out under the new law. The requirements of SB 712 cover both permitted point-source contributors as well as non-point source contributors like agriculture and residential septic systems.

Summary of Major Components

  • Regulation of septic tanks as a source of nutrient pollution and the transferring of regulatory oversight from Dept of Health to the Florida Dept. of Environmental Protection (FDEP).
  • Contingency plans for power outages to minimize discharges of untreated wastewater for all sewage treatment facilities.
  • Provision of financial disclosure from all sanitary sewage disposal facilities so that FDEP can ensure funds are being used to provide infrastructure upgrades, repairs, and maintenance to prevent systems from becoming obsolete.
  • Detailed documentation of fertilizer use by agricultural operations to ensure compliance with Best Management Practices (BMPs) and aid in calculating nutrient applications within a Basin Management Action Plan (BMAP).
  • Updated stormwater rules and design criteria to improve the performance of stormwater systems statewide to specifically address nutrients.

SB 712 is in part a response to requirements under the federal Clean Water Act that Florida must address impaired water bodies within the state. One component of this requirement that Florida must meet TMDLs (Total Maximum Daily Loads) for nutrients to reduce impacts to impaired water bodies from all known contributors.

FDEP establishes BMAPs, within which all contributors or potential contributors have been assigned target load reductions to meet established TMDLs.

For point-source contributors (ones where you can point to the actual point of discharge and requiring permits), water quality is verified by direct monitoring of actual discharge. For “non-point source” contributors (ones where you cannot point at an actual discharge point), like agriculture, compliance with the TMDL is presumed based on the proper implementation of best management practices (BMPs) adopted by FDACS.

SB 712 and Agricultural BMPs

Producers who are enrolled in the FDACS BMP program and properly implement all applicable BMPs are granted a presumption of compliance with state water quality standards. The applicable BMPs for a specific parcel are identified by the producer and OAWP representatives during an enrollment site visit or implementation verification site visit (IV).

Many producers are already enrolled in the OAWP BMP program and benefit from the technical and financial assistance provided by OAWP for BMP implementation. But, a major unseen benefit of this program, in addition to the cost share allowances, is this legal hold-harmless provision that participation provides.

In 2016, changes in Florida law established new requirements for the FDACS BMP program. Most notably was the requirement that OAWP representatives perform audits of enrolled producers to make sure that the applicable BMPs identified during enrollment were being implemented. Successful completion of an audit allows enrolled producers to maintain their presumption of compliance and remain eligible for cost share. In other words, the state needs to show that participants are doing what they said they would do, and to improve efficiencies when possible. BMP participants are required to keep records and to provide evidence that they are implementing the BMPs they enrolled in. For point-source contributors, state prescribed 3rd party monitoring is required to verify that compliance is being achieved.

In SB 712, these “audits” are now being referred to as IVs.

If a producer chooses not to participate in the FDACS BMP program, the alternative is for a producer to conduct water quality monitoring prescribed by FDEP at the landowner’s expense to demonstrate compliance with water quality standards. A landowner that chooses not to participate in the FDACS BMP program and implement BMPs or conduct water quality monitoring could be subject to FDEP actions and possible penalty.

Changes to Agricultural Requirements

SB 712 tightens up the IV process for BMP participants within a BMAP. The bill requires:

  • FDACS to perform IV site visits on enrolled parcels every 2 years
  • During the IV visit, FDACS must confirm that the applicable BMPs identified for an enrolled parcel are being properly implemented and that record keeping requirements for the applicable BMP manual are being met
  • Certain records tied to the application of nitrogen and phosphorus on a parcel will be “retained” by the FDACS representative
  • The retained nitrogen and phosphorus records will be combined with all other retained records within a BMAP, summarized, and the information obtained will be provided to FDEP on a BMAP level

By signing a “Notice of Intent” (NOI) to properly implement the applicable BMPs, a producer has agreed to keep the records required to verify the implementation of BMPs. To meet the new requirements of SB 712, OAWP has created a new Nutrient Application Record Form (NARF) to record the application of nitrogen and phosphorous for an NOI over the required 2 year period. The NARF lets the OAWP representatives conducting an IV retain only one record (the NARF) for the enrolled NOI, which protects other production and compliance records. OAWP is attempting to create flexibility by allowing producers to either use the NARF or a similar form that collects the same information.

Without the NARF, OAWP representatives could be required to retain any nutrient application records identified with a pencil mark in the BMP manual.

The confidentiality and protection from public records requests for agricultural production records that exists in state law was maintained under SB 712. Additionally, the FDEP and Water Management Districts can only have access to the records if the established exemption is preserved.

SB 712– https://www.flsenate.gov/Session/Bill/2020/712

If you have specific questions about the bill or need help with records and reports, contact UF/ IFAS Extension or OAWP representatives.

Best regards,

(Signed UF/IFAS Extension Agent)