HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 1 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S A bill to be entitled 1 An act relating to nutrient application rates; 2 amending s. 576.011, F.S.; defining the terms 3 "certified professional" and "rate tailoring"; 4 amending s. 576.045, F.S.; providing legislative 5 findings and intent; authorizing the use of rate 6 tailoring in specified circumstances; authorizing 7 producers to use written recommendations from 8 certified professionals to tailor their recommended 9 nutrient application rates unde r certain 10 circumstances; requiring producers to keep records 11 regarding the determination that the published 12 nutrient application rates are not appropriate and any 13 recommendations for rate tailoring for a specified 14 period of time; requiring producers using rate 15 tailoring to enroll in and implement certain 16 applicable best management practices; requiring 17 revisions to recommended application rates by certain 18 state universities and Florida College System 19 institutions to authorize rate tailoring; providing a 20 presumption of compliance with certain requirements 21 for producers using rate tailoring; extending the 22 expiration of a certain provision; amending s. 23 403.067, F.S.; conforming a provision to changes made 24 by the act; providing an effective date. 25 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 2 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S 26 Be It Enacted by the Legislature of the State of Florida: 27 28 Section 1. Present subsections (5) through (31) and (32) 29 through (42) of section 576.011, Florida Statutes, are 30 redesignated as subsections (6) through (32) and (34) through 31 (44), respectively, and new su bsections (5) and (33) are added 32 to that section, to read: 33 576.011 Definitions. —When used in this chapter, the term: 34 (5) "Certified professional" means an individual who holds 35 a certified crop adviser designation issued by the American 36 Society of Agronomy, who has passed the society's Southeast 37 Region Certified Crop Adviser Exam, and whose credentials have 38 been verified by the society's Florida Certified Crop Adviser 39 Board. 40 (33) "Rate tailoring" means the application of nutrients 41 in accordance with s. 576.045(4). 42 Section 2. Section 576.045, Florida Statutes, is amended 43 to read: 44 576.045 Nitrogen and phosphorus; findings and intent; 45 fees; purpose; best management practices; waiver of liability; 46 compliance; rules; exclusions; expiration. — 47 (1) FINDINGS AND INTENT.— 48 (a) The Legislature finds that : 49 1. Nitrogen and phosphorus residues have been found in 50 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 3 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S groundwater, surface water, and drinking water in various areas 51 throughout this the state at levels in excess of established 52 water quality standard s. The Legislature further finds that some 53 fertilization-management practices could be a source of such 54 contamination. 55 2. Nutrient application rate recommendations are general 56 guidelines, not site -specific absolute rates, and that such 57 rates may not take into account the latest methods of producing 58 agricultural commodities or changes to nutrient application 59 practices which are appropriate due to disease, new crop 60 varieties, changes in United States Department of Agriculture 61 Agricultural Marketing Service standards, growing techniques, or 62 market conditions. 63 3. To gain efficiency and be able to compete successfully 64 with foreign producers that benefit from lower costs of 65 production and favorable trade conditions, many producers in 66 this state grow more produ ct per acre, resulting in higher 67 production at lower overall costs. This high -efficiency crop 68 production requires nutrient application to be based on the 69 intensity of production on a per -acre basis, rather than the 70 lower per-acre production on which past r esearch based its 71 recommended nutrient application rate. 72 4. Florida citrus faces challenges that include citrus 73 greening, citrus canker, freezes, windstorms, and other events 74 that result in the fruit not being harvested. In order to 75 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 4 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S continue production of this state's iconic crop, nutrient 76 application rates must reflect fruit grown on the tree after the 77 bloom during the growing season and not fruit ultimately 78 harvested for market delivery. 79 (b) It is the intent of the Legislature to : 80 1. Improve fertilization-management practices as soon as 81 practicable in a way that protects this the state's water 82 resources and preserves a viable agricultural industry. This 83 goal is to be accomplished through research concerning best 84 management practices and education an d incentives for the 85 agricultural industry and other major users of fertilizer. 86 2. Accommodate continued agricultural production without 87 interruption as research to formally revise nutrient application 88 rates is completed. 89 3. Authorize the use of rate t ailoring in recommended 90 nutrient application rates when rate tailoring is supported by 91 written recommendations from a certified professional and 92 documented using production and field data that is retained for 93 review during the best management practices imp lementation 94 verification process. 95 (2) FEES.— 96 (a) In addition to the fees imposed under ss. 576.021 and 97 576.041, the following supplemental fees shall be collected and 98 paid by licensees for the sole purpose of implementing this 99 section: 100 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 5 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S 1. One hundred dollars for each license to distribute 101 fertilizer. 102 2. One hundred dollars for each specialty fertilizer 103 registration. 104 3. Fifty cents per ton for all fertilizer that contains 105 nitrogen or phosphorus and that is sold in this state. 106 (b) All fees paid to the department under this section are 107 due and payable at the same time and in the same manner as the 108 fees specified in ss. 576.021 and 576.041 and are subject to all 109 provisions contained in those sections. 110 (c) All fees paid under this section must be de posited 111 into the General Inspection Trust Fund and are exempt from the 112 provisions of s. 215.20. These funds are to be appropriated 113 annually to the department and allocated according to a 114 memorandum of understanding between the department and the 115 Department of Environmental Protection. The allocation of 116 indirect costs to these funds by any state agency is 117 specifically prohibited. 118 (3) USE OF FUNDS PURPOSE.—The funds collected pursuant to 119 subsection (2) must be used by the department for: 120 (a) Research, development, demonstration, and 121 implementation of suitable interim measures, best management 122 practices, or other measures used to achieve state water quality 123 standards for nitrogen and phosphorus criteria. Implementation 124 of interim measures, best management practices, and other 125 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 6 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S measures may include cost -sharing grants, technical assistance, 126 implementation tracking, and conservation leases or other 127 agreements for water quality improvement. 128 (b) Approving, adopting, publishing, and distributin g 129 interim measures, best management practices, or other measures. 130 In the process of developing, approving, and adopting interim 131 measures, best management practices, or other measures, the 132 department shall consult with the Department of Environmental 133 Protection, the Department of Health, the water management 134 districts, environmental groups, the fertilizer industry, and 135 representatives from the affected farming groups. 136 (c) Reimbursing the Department of Environmental Protection 137 for costs incurred which are a ssociated with: 138 1. Monitoring and verifying the effectiveness of the 139 interim measures, best management practices, or other measures 140 approved and adopted under subsection (7) (6) at representative 141 sites. The Department of Environmental Protection shall us e its 142 best professional judgment in making the initial determination 143 of the effectiveness of the interim measures, best management 144 practices, or other measures. 145 2. Sampling, analysis, and restoration of potable water 146 supplies, pursuant to s. 376.307, fou nd to contain levels of 147 nitrate in excess of state water quality standards, which excess 148 is determined to be the result of the application of fertilizers 149 or other soil-applied nutritional materials containing nitrogen. 150 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 7 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S 151 This subsection must be implemented through a memorandum of 152 understanding between the department and the Department of 153 Environmental Protection. 154 (4) RATE TAILORING.—The use of rate tailoring to 155 recommended nutrient application rates is authorized where rate 156 tailoring is supported by a cert ified professional. 157 (a) When recommended nutrient application rates published 158 by the Institute of Food and Agricultural Sciences at the 159 University of Florida or other state universities and Florida 160 College System institutions that have agricultural resea rch 161 programs are not appropriate for a specific producer due to soil 162 conditions, disease, crop varieties, subsequent crop rotations, 163 planting density, market requirements, or site -specific 164 conditions, written recommendations from a certified 165 professional may be used to tailor the recommended nutrient 166 application rates for that producer. The determination that the 167 published nutrient application rates are not appropriate and the 168 recommendation for the tailoring of nutrient application rates 169 must be documented with one or more of the following records, as 170 appropriate: soil tests, plant tissue tests, pathology reports, 171 yield response curves, growth records, or site -specific 172 conditions, together with records specifying the application 173 rate, the types or forms of nutrients used, the nutrient sources 174 used, and the placement and timing of the nutrient sources. A 175 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 8 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S producer must retain the records for 5 years to support the use 176 of rate tailoring. 177 (b) Producers using rate tailoring must be enrolled in and 178 implementing all other best management practices adopted by the 179 department and identified in the enrolled notice of intent 180 required under subsections (5) and (6). 181 (c) As recommended nutrient application rates for crops 182 are revised by the Institute of Food and Agricul tural Sciences 183 at the University of Florida or other state universities and 184 Florida College System institutions that have agricultural 185 research programs, such recommendations must provide an 186 application range or authorize rate tailoring to crop and field 187 conditions. 188 (d) Notwithstanding any other law, producers implementing 189 rate tailoring in compliance with this section are provided a 190 presumption of compliance with state water quality standards, 191 may rely on the waiver of liability in subsection (5), and be 192 deemed to be in compliance with s. 403.067(7)(c) and subsections 193 (5) and (6). 194 (5) WAIVER OF LIABILITY. —Notwithstanding any other 195 provision of law, the Department of Environmental Protection may 196 not is not authorized to institute proceedings against any 197 person or the Federal Government under the provisions of s. 198 376.307(5) to recover any costs or damages associated with 199 nitrogen or phosphorus contamination of groundwater or surface 200 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 9 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S water, or the evaluation, assessment, or remediation of such 201 contamination of groundwater or surface water, including 202 sampling, analysis, and restoration of potable water supplies, 203 where the contamination of groundwater or surface water is 204 determined to be the result of the application of fertilizers or 205 other soil-applied nutritional materials containing nitrogen or 206 phosphorus, provided the property owner or leaseholder: 207 (a)1. Provides the department with a notice of intent to 208 implement applicable interim measures, best management 209 practices, or other measures adopted by the dep artment which 210 practices or measures have been verified by the Department of 211 Environmental Protection to be effective; and 212 2. Implements applicable interim measures, best management 213 practices, or other measures as soon as practicable according to 214 rules adopted by the department or no longer applies fertilizers 215 or other soil-applied nutritional materials containing nitrogen 216 or phosphorus; or 217 (b) No longer applies fertilizers or other soil -applied 218 nutritional materials containing nitrogen or phosphorus as of 219 the effective date of this section . 220 (6)(5) COMPLIANCE.—If the property owner or leaseholder 221 implements interim measures, best management practices, or other 222 measures adopted by the department which practices or measures 223 have been verified by the Depar tment of Environmental Protection 224 to be effective, and complies with the following, there is a 225 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 10 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S presumption of compliance with state water quality standards for 226 such criteria under this section and s. 403.067(7)(c) with 227 respect to the application of fertili zers or other soil-applied 228 nutritional materials containing nitrogen or phosphorus: 229 (a)1. Provides the department with a notice of intent to 230 implement applicable interim measures, best management 231 practices, or other measures adopted by the department; an d 232 2. Implements applicable interim measures, best management 233 practices, or other measures as soon as practicable according to 234 rules adopted by the department or no longer applies fertilizers 235 or other soil-applied nutritional materials containing nitrogen 236 or phosphorus; or 237 (b) No longer applies fertilizers or other soil -applied 238 nutritional materials containing nitrogen or phosphorus as of 239 the effective date of this section . 240 (7)(6) RULEMAKING.—The department, in consultation with 241 the Department of Envir onmental Protection, the Department of 242 Health, the water management districts, environmental groups, 243 the fertilizer industry, and representatives from the affected 244 farming groups, shall adopt rules to: 245 (a) Specify the requirements of interim measures, be st 246 management practices, or other measures to be implemented by 247 property owners and leaseholders. 248 (b) Establish procedures for property owners and 249 leaseholders to submit the notice of intent to implement and 250 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 11 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S comply with interim measures, best management practices, or 251 other measures. 252 (c) Establish schedules for implementation of interim 253 measures, best management practices, or other measures. 254 (d) Establish a system to assure the implementation of 255 best management practices, including recordkeeping requirements. 256 (8)(7) OTHER PROVISIONS.— 257 (a) This section does not limit the authority of the 258 Department of Environmental Protection to regulate discharges 259 associated with the commercial feeding of livestock and poultry 260 defined in chapter 585, including that of dairy farm and egg 261 production operations, or the disposal of sludge, residuals, or 262 septage. This paragraph does not grant additional authority to 263 regulate these discharges. 264 (b) This section does not limit federally delegated 265 regulatory authority . 266 (c) The Department of Environmental Protection may adopt 267 rules to establish criteria for dairy farms which provide 268 reasonable assurance that state nitrate groundwater quality 269 standards will not be violated and which, provided such criteria 270 are met, shall prohibit the Department of Environmental 271 Protection from instituting proceedings against any dairy farmer 272 under the provisions of s. 376.307(5) and shall provide a 273 presumption of compliance with safe nitrate groundwater quality 274 standards. 275 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 12 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S (d) This section, except for subsection (2), does not 276 apply to the manufacture, mixing, or blending of fertilizer, 277 including fertilizer containing sludge, residuals, or septage. 278 (9)(8) EXPIRATION OF PROVISIONS. —Subsections (1), (2), 279 (3), (5) (4), and (7) (6) expire on December 31, 2032 2022. 280 Subsections (4), (6), (5) and (8) (7) expire on December 31, 281 2037 2027. 282 Section 3. Paragraph (c) of subsection (7) of section 283 403.067, Florida Statutes, is amended to read: 284 403.067 Establishment and implementation of total maximum 285 daily loads.— 286 (7) DEVELOPMENT OF BASIN MANAGEMENT PLANS AND 287 IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS. — 288 (c) Best management practices. — 289 1. The department, in cooperation with the water 290 management districts and other interested parties, as 291 appropriate, may develop suitable interim measures, best 292 management practices, or other measures necessary to achieve the 293 level of pollution reduction established by the department for 294 nonagricultural nonpoint pollutant sources in allocations 295 developed pursuant to subsection (6) and this subsection. These 296 practices and measures may be adopted by rule by the department 297 and the water management districts and, where adopted by rule, 298 shall be implemented by those parties responsible for 299 nonagricultural nonpoint source pollution. 300 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 13 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S 2. The Department of Agriculture and Consumer Services may 301 develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 302 suitable interim measures, best management practices, or other 303 measures necessary to achieve the level of polluti on reduction 304 established by the department for agricultural pollutant sources 305 in allocations developed pursuant to subsection (6) and this 306 subsection or for programs implemented pursuant to paragraph 307 (12)(b). These practices and measures may be implemented by 308 those parties responsible for agricultural pollutant sources, 309 and the department, the water management districts, and the 310 Department of Agriculture and Consumer Services shall assist 311 with implementation. In the process of developing and adopting 312 rules for interim measures, best management practices, or other 313 measures, the Department of Agriculture and Consumer Services 314 shall consult with the department, the Department of Health, the 315 water management districts, representatives from affected 316 farming groups, and environmental group representatives. Such 317 rules must also incorporate provisions for a notice of intent to 318 implement the practices and a system to assure the 319 implementation of the practices, including site inspection and 320 recordkeeping requirements. 321 3. When interim measures, best management practices, or 322 other measures are adopted by rule, the effectiveness of such 323 practices in achieving the levels of pollution reduction 324 established in allocations developed by the department pursuant 325 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 14 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S to subsection (6) and this subsection or in programs implemented 326 pursuant to paragraph (12)(b) must be verified at representative 327 sites by the department. The department shall use its best 328 professional judgment in making the initial verification that 329 the best management practices are reasonably expected to be 330 effective and, when applicable, shall notify the appropriate 331 water management district or the Department of Agriculture and 332 Consumer Services of its initial verification before the 333 adoption of a rule proposed pursuan t to this paragraph. 334 Implementation, in accordance with rules adopted under this 335 paragraph, of practices that have been initially verified to be 336 effective, or verified to be effective by monitoring at 337 representative sites, by the department, or are authorized by s. 338 576.045, shall provide a presumption of compliance with state 339 water quality standards and release from s. 376.307(5) for those 340 pollutants addressed by the practices, and the department is not 341 authorized to institute proceedings against the owner of the 342 source of pollution to recover costs or damages associated with 343 the contamination of surface water or groundwater caused by 344 those pollutants. Research projects funded by the department, a 345 water management district, or the Department of Agriculture a nd 346 Consumer Services to develop or demonstrate interim measures or 347 best management practices shall be granted a presumption of 348 compliance with state water quality standards and a release from 349 s. 376.307(5). The presumption of compliance and release is 350 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 15 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S limited to the research site and only for those pollutants 351 addressed by the interim measures or best management practices. 352 Eligibility for the presumption of compliance and release is 353 limited to research projects on sites where the owner or 354 operator of the research site and the department, a water 355 management district, or the Department of Agriculture and 356 Consumer Services have entered into a contract or other 357 agreement that, at a minimum, specifies the research objectives, 358 the cost-share responsibilities of the parties, and a schedule 359 that details the beginning and ending dates of the project. 360 4. When water quality problems are demonstrated, despite 361 the appropriate implementation, operation, and maintenance of 362 best management practices and other measures requi red by rules 363 adopted under this paragraph, the department, a water management 364 district, or the Department of Agriculture and Consumer 365 Services, in consultation with the department, shall institute a 366 reevaluation of the best management practice or other mea sure. 367 If the reevaluation determines that the best management practice 368 or other measure requires modification, the department, a water 369 management district, or the Department of Agriculture and 370 Consumer Services, as appropriate, shall revise the rule to 371 require implementation of the modified practice within a 372 reasonable time period as specified in the rule. 373 5. Subject to subparagraph 6., the Department of 374 Agriculture and Consumer Services shall provide to the 375 HB 1291 2022 CODING: Words stricken are deletions; words underlined are additions. hb1291-00 Page 16 of 16 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S department information obtained pursuant to sub paragraph (d)3. 376 6. Agricultural records relating to processes or methods 377 of production, costs of production, profits, or other financial 378 information held by the Department of Agriculture and Consumer 379 Services pursuant to subparagraphs 3., 4., and 5. or p ursuant to 380 any rule adopted pursuant to subparagraph 2. are confidential 381 and exempt from s. 119.07(1) and s. 24(a), Art. I of the State 382 Constitution. Upon request, records made confidential and exempt 383 pursuant to this subparagraph shall be released to the 384 department or any water management district provided that the 385 confidentiality specified by this subparagraph for such records 386 is maintained. 387 7. Subparagraphs 1. and 2. do not preclude the department 388 or water management district from requiring compliance with 389 water quality standards or with current best management practice 390 requirements in any applicable regulatory program authorized by 391 law for the purpose of protecting water quality. Additionally, 392 subparagraphs 1. and 2. are applicable only to the extent t hat 393 they do not conflict with any rules adopted by the department 394 that are necessary to maintain a federally delegated or approved 395 program. 396 Section 4. This act shall take effect July 1, 2022. 397