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From Senate Bill 712 to the Clean Waterways Act and Agricultural Best Management Practices

Author:  Florida Department of Agriculture and Consumer Services, Office of Agricultural Water Policy

Acronyms

  • BMP – Best Management Practices
  • BMAP – Basin Management Action Plan
  • FDACS – Florida Department of Agriculture and Consumer Services
  • FDEP – Florida Department of Environmental Protection
  • IV – Implementation Verification
  • NARF – Nutrient Application Record Form
  • OAWP – Office of Agricultural Water Policy within FDACS
  • TMDL – Total Maximum Daily Load

What is the new Clean Waterways Act?

On June 30, 2020, Governor Ron DeSantis signed into law Senate Bill (SB) 712, entitled the “Clean Waterways Act.”. This new law requires a wide range of water quality protection provisions aimed at minimizing the impact of point and nonpoint sources of nutrient pollution. It further provides the modification of the Florida Department of Agriculture and Consumer Services (FDACS) best management practices (BMP) program, which is administered by the Office of Agricultural Water Policy (OAWP). The Clean Waterways Act covers both permitted point-source contributors, including National Pollution Discharge Elimination System permitted discharge points, as well as nonpoint, for example, agriculture and urban stormwater runoff.

Those portions of the law that impact agricultural landowners and producers modify the FDACS BMP program implementation verification requirements previously adopted into law during the 2016 legislative session. The new requirements address producers and landowners enrolled in the BMP program who are implementing BMPs and applying nutrients, particularly within areas covered by an adopted Basin Management Action Plan (BMAP).

All known potential contributors of nutrient pollution are being addressed under the provisions of this new law. 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 legal requirements.

What are other stakeholders besides agriculture required to do?

For point-source contributors (ones where you can point to the actual point of discharge and requiring permits), water quality is verified by permitting and direct monitoring of actual discharge.

What are the relationships between best management practices (BMPs), total maximum daily loads (TMDLs) and basin management action plans (BMAPs)?

The Florida Department of Environmental Protection (FDEP) develops TMDLs for waterbodies that have been found to be impaired. The TMDL is a determination of the maximum amount of a pollutant (such as a nutrient) that a waterbody can receive and still meet the water quality standards that protect human health and aquatic life.

To implement a TMDL, FDEP establishes BMAPs, which identify all known contributors or potential contributors of the pollutant within a basin and assigns target load reductions for the pollutant. A BMAP also identifies a comprehensive set of strategies including urban and agricultural BMPs, public education, regional water-quality treatment projects, conservation programs, financial assistance, and others designed to address the pollutant reductions required to achieve the TMDL. BMAPs are developed with extensive stakeholder involvement, including agriculture, and are adopted through Secretarial order by FDEP. “Nonpoint source” contributors (ones where you cannot point at an actual discharge point), like agriculture, are responsible for implementing rule-adopted BMPs to help achieve water quality standards within BMAPs. Compliance with the BMAP is presumed based on the proper implementation of all applicable BMPs.

How did Senate Bill 712 change the best management practices (BMP) program implemented by the Florida Department of Agriculture and Consumer Services (FDACS) Office of Agricultural Water Policy (OAWP)?

The requirements of Senate Bill 712, which went into effect July 1, 2020, impact those agricultural landowners and producers enrolled in the FDACS BMP program administered by OAWP and who are implementing BMPs and applying nutrients to their property. Specifically, FDACS is required to undertake implementation verification (IV) site visits on properties enrolled in the BMP program every two years. During these IV site visits, OAWP representatives will ensure the proper implementation of the applicable BMPs for the enrolled property and review the required records that producers must maintain to demonstrate compliance with the BMPs. The law also requires FDACS to retain records related to the application of nitrogen and phosphorus. To accomplish this retention requirement, FDACS is developing a new nutrient application record form to assist enrolled producers in providing the required information.

When will implementation of the new law start?

The requirements of Senate Bill 712 went into effect July 1, 2020, after it was signed into law. A representative from FDACS OAWP will contact producers to schedule an implementation verification site visit and collect and retain nutrient application records.

What is an implementation verification (IV) site visit?

Legislation passed in 2016 requires FDACS to conduct implementation verification (IV) site visits on properties enrolled in the BMP program every two years During these IV site visits, a representative from the FDACS OAWP will ensure the proper implementation of the applicable BMPs for the enrolled property and review the required records that producers must maintain to demonstrate compliance with the BMPs. Pursuant to Senate Bill 712, certain records regarding the application of nitrogen and phosphorus on the property will be retained by OAWP representatives during the visit. They will also work with producers to identify sensitive water resources located on or impacted by production activities on the subject parcel, as well as opportunities to achieve greater efficiency in nutrient, irrigation, or water resource management.

Why is FDACS collecting nutrient records?

Senate Bill 712 requires FDACS to collect records on the total amount of nitrogen and phosphorus applied on properties enrolled in the best management practices program and provide nutrient use information within basin management action plan areas to the Florida Department of Environmental Protection (FDEP). This information will be provided to FDEP on an aggregate basis for each specific basin or sub-basin.

What is the record keeping requirement specifically? All fertilizer? Bulk purchases? Amount applied to individual fields?

Participants in the FDACS BMP program are required by law to keep records and to provide evidence that they are implementing the BMPs identified on the Notice of Intent to Implement BMPs (NOI). In 2016, changes in Florida law established new requirements for the FDACS BMP program. Most notably was the requirement that FDACS OAWP representatives perform audits of enrolled producers, referred to as IV site visits, to confirm that the applicable BMPs for the enrolled property and commodity production that were identified during enrollment are being implemented.

During a scheduled IV site visit, the OAWP representative will need access to soil tests, tissue tests and fertilizer records to be able to determine compliance. This includes all commercial nitrogen and phosphate, organic fertilizer, and the amount applied for the entire NOI. They will also review the NOI to be sure all information is correct and that all the applicable BMPs are being implemented. If any corrections or changes are needed, they will work with the landowner or producer to get them completed.

Successful completion of IV site visit ensures proper implementation of applicable BMPs and allows enrolled producers to maintain their presumption of compliance with state water quality standards. The presumption of compliance is a legal finding that applies to water quality pollution sources addressed by TMDLs and protects enrolled agricultural producers and landowners from penalties associated with violation of water quality standards addressed by the TMDLs.

How should enrolled producer maintain their records?

FDACS encourages enrolled producers to maintain their required records in an electronic format, which will allow for greater efficiency in verifying compliance with the best management practices program requirements. Receipts, invoices, and recommendations that substantiate those records should be organized and properly maintained. Producers are additionally encouraged to fill out the electronic version of the nutrient application record form provided by a FDACS OAWP representative, or a substantially similar electronic record form providing the same required information. FDACS OAWP is also developing an electronic tool that will aid producers in maintaining the records.

What will be done with the records once they are in the possession of the Florida Department of Agriculture (FDACS) Office of Agricultural Water Policy (OAWP)?

The data from the Nutrient Application Record Form (NARF) will be entered into a data management system that will allow FDACS OAWP to combine all NARF records within a basin management action plan area and provide the aggregate nutrient application information to the Florida Department of Environmental Protection, as required by Senate Bill 712, which went into effect on July 1, 2020. The NARF data are linked to a producer’s Notice of Intent to Implement Best Management Practices within the OAWP data management system.

Will the records be considered public information?

No, the records are confidential and protected under the public records exemption contained within Section 403.067, Florida Statutes. However, FDACS OAWP is required to provide these confidential and exempt records to the Florida Department of Environmental Protection or any water management district as long as the confidentiality specified for the records is maintained.

How do I provide the NARF to FDACS?

The NARF will be collected by a FDACS OAWP representatives during a scheduled implementation verification IV site visit. Producers must maintain the NARF and other required records until the time of the IV site visit and as required by the specific best management practices manual. Producers are not required to and should not transmit the NARF to FDACS OAWP through either electronic or physical mail.

What will the nutrient application record keeping timeline look like? How far back to I need to go?

The BMP manuals require producers to maintain nutrient application records as identified in the manual for five years. This includes the receipts and other documents needed to ensure the proper implementation of the applicable BMPs for the enrolled property to demonstrate compliance with the BMPs. During an implementation verification site visit, OAWP representatives will review the previous two years of nutrient application records and retain the nutrient application record form. All other records will remain with the producer.

How does the 2-year timeline work?

FDACS OAWP representatives will conduct IV site visits every 2 years for enrolled producers and landowners. During the IV site visit, OAWP representatives will review those BMPs determined to be applicable to the subject property and commodity production during enrollment and verify they are being properly implemented. The enrolled producer or landowner is required to produce all records required by the applicable BMP manual for audit to determine BMP compliance by FDACS OAWP representatives, including but not limited to, soil tests, tissue tests and fertilizer records. Non-compliance results in creation of a remedial action plan, and further non-compliance can result in referral to the FDEP for enforcement. The nutrient application records maintained and provided by the enrolled producer that FDACS OAWP is required to retain during the IV site visit must cover the two-year period prior to the visit.

Are BMPs economically and technically feasible for producers to implement?

 For the purposes of the FDACS BMP program, a BMP is defined by law as a means, a practice or combination of practices determined by the coordinating agencies, based on research, field-testing, and expert review, to be the most effective and practicable on-location means, including economic and technological considerations, for improving water quality in agricultural and urban discharges. BMPs for agricultural discharges must reflect a balance between water quality improvements and agricultural productivity (Section 373.0454(2)(a), Florida Statutes). During the development of the BMP manuals, the technical and economic feasibility of a producer to be able to implement practices was considered. BMP enrollment and IV site visits provide opportunities for producers and OAWP representatives to evaluate potential cost-share opportunities on then enrolled property.

Starting with the 2020 editions of the BMP manual, the terms “technically not feasible” and “economically not feasible” were removed from the BMP Checklist. Some BMPs may require cost-share to properly implement, and these are identified in the revised checklist.

What is the difference between the FDACS BMP program and the UF/IFAS Extension BMP program?

FDACS BMPs are defined by law and focus on water quality and water conservation practices intended to address water conservation and nutrient pollution reduction from agricultural operations. These BMPs carry legal implications. Agricultural producers within basin management action plan areas are required by law to either enroll in the FDACS BMP program and implement all applicable BMPs identified or conduct water quality monitoring as prescribed by the Florida Department of Environmental Protection at their own expense to demonstrate compliance with water quality standards. (see section 403.067(7)(b)2.g., Florida Statutes). When a producer enrolls in the FDACS BMP program, they are signing an agreement with FDACS to properly implement the applicable BMPs on the enrolled property.

UF/IFAS has a broader view of the BMP definition. There is no enrollment process or legal implication tied to the UF/IFAS BMP program and extension agents can discuss BMPs as general practices. UF/IFAS BMPs may include pesticide application practices, pest management, or other practices that improve production and yield but that do not relate to water quality or water conservation.

Why is the NARF not requiring a net nutrient balance?

The NARF was created with input from leaders in agricultural industry, stakeholder groups. A significant amount of information and data are required to build a nutrient balance and the data are difficult to interpret correctly.  OAWP encourages producers to consider developing processes to calculate a net nutrient balance for their enrolled production to be able to better demonstrate the nutrient and irrigation management strategies in their operation.

What is the plan for implementing the program to urban farmers, small farmers, and organic farmers (all scales)? 

FDACS plans to finalize and adopt a Diversified Operations best management practices manual in 2020.

Contact Information

For assistance with BMP enrollment or implementation:
(850) 617-1727