11:45 WATER REGULATORY ISSUES Herschel Vinyard, Moderator Greg Munson, Gunster

Water Regulatory Update 1.Waters of the U.S. 2.Amendment One 3.Human Health Criteria

Proposed WOTUS Rule (1) All waters used in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3)The territorial seas; (4)All impoundments of waters; (5)“Tributaries” of (1)-(3) (6)Waters, including wetlands, adjacent to/“neighboring” (1)-(5) (7)Special waters with a “significant nexus” (8)Floodplain or Near High Tide Waters with a “significant nexus” New Definitions: Tributary, Neighboring, Significant Nexus (3) All “other waters” the use, degradation or destruction of which could affect interstate or foreign commerce (4) All impoundments of waters otherwise defined as waters of the United States (5) Tributaries of (1) – (4) (6) The territorial seas (7)Wetlands adjacent to/neighboring (1) – (6)

New WOTUS Rule Categorically In ((a)1-6)? Categorically Out (b)? Significant Nexus ((a) 7-8)? WOTUS Not WOTUS NN Y Y N Ditches are Special Y

Categorical Inclusions (1)All waters used in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide; (2)All interstate waters, including interstate wetlands; (3)The territorial seas; (4)All impoundments of waters; (5)Tributaries of 1-3; (6)Waters, including wetlands, adjacent to/“neighboring” (1)-(5)

Tributaries / Adjacent & Neighboring Tributaries require a bed, a bank, and a ordinary high water mark OR they contributes flow directly or indirectly to a traditional water. Breaks in the tributary don’t matter, so long as a bed, bank and OHWM can be identified upstream of the break. A tributary can be a ditch. If the ditch fits within a categorical exclusion it is NOT a WOTUS, no matter what. Adjacent = Neighboring. Unlike draft rule is defined within fixed distances of OHWM.

Categorical Exclusions Waste Treatment Systems, including treatment ponds and lagoons Prior converted cropland, as determined by EPA Ditches: Ephemeral Flow ditches Intermittent Flow ditches, unless it drains a wetland Ditches that do not contribute flow, either directly or indirectly to a water in (1)-(3) The following: o Artificially irrigated areas that would revert to dry land should irrigation stop; o Artificial lakes and ponds, including farm and stock watering ponds, irrigation ponds, settling basins, and cooling ponds; o Groundwater; o Puddles; o Stormwater control features created in dry land; and o Wastewater recycling structures constructed on dry land, including retention basins, recharge basins, percolation ponds, and water distributary structures. What is Dry Land?

Significant Nexus Water that alone or in combination with out similarly situated waters in the region significantly affects the chemical, physical, or biological integrity of a (1)-(3) water that is not speculative or insubstantial. Similarly Situated Waters are those that are sufficiently alike and are sufficiently close. Factors for evaluating significant nexus: Sediment trapping Nutrient recycling Pollutant trapping, transformation, filtering, and transport Retention and attenuation of flood waters Runoff Storage Contribution of flow Export of organic matter Provision of life cycle dependent habitat

My Opinion Florida = 100 year flood plain 100 year flood plain = significant nexus Significant Nexus = WOTUS Florida = WOTUS Similarly Situated: You get a JD when your neighbor gets a JD Exclusions CRITICAL LOTS of room for professional judgment

Going Forward Effective Date: August 28, 2015 Permits or J.D. that are issued AFTER that date will be under new rule Legal challenges filed Enjoined in 13 states Rule is effective in Florida despite legal challenge

Amendment One

Florida Wildlife Federation v. Gardiner Amendment One Appropriations: $740M ($550M + Debt Service) FWF Challenging: $237M FWF Seeking: Transfer of $237M from the $460M in funds vetoed by Governor. Timeline: Best guess is a decision in the trial court early Other lawsuits?

Constitutional Language As provided by law, to finance or refinance: the acquisition and improvement of land, water areas, and related property interests, … together with management, restoration of natural systems, and the enhancement of public access or recreational enjoyment of conservation lands.

Challenged Appropriations DEP, DOACS, FWCC, DOS salaries and overhead: $175M Sewage Treatment/Stormwater (Springs): $39M Agricultural BMPs: $5M Agricultural Pollution Reduction Projects: $5M

Human Health Criteria

Human Health Criteria Background May 2014: EPA draft updating national recommended water quality criteria for 94 chemical pollutants found in industrial and domestic wastewater, herbicides, and pesticides: Acenaphthene, Acrolein, Acrylonitrile, Aldrin, alpha-Hexachlorocyclohexane, alpha-Endosulfan, Anthracene, Antimony, Arsenic, Asbestos, Barium, Benzene, Benzidine, Benzo(a)anthracene, Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)fluoranthene, Beryllium, beta-Hexachlorocyclohexane, beta-Endosulfan, Bis(2-Chloro-1-methylethyl) Ether, Bis(2-Chloroethyl) Ether, Bis(2-Ethylhexyl) Phthalate, Bis(Chloromethyl) Ether, Bromoform, Butylbenzyl Phthalate, Cadmium, Carbon Tetrachloride, Chlordane, Chlorobenzene, Chlorodibromomethane, Chloroform, Chlorophenoxy Herbicide (2,4-D), Chlorophenoxy Herbicide (2,4,5- TP), Chromium (III), Chromium (VI), Chrysene, Copper, Cyanide, Dibenzo(a,h)anthracene, Dichlorobromomethane, Dieldrin, Diethyl Phthalate, Dimethyl Phthalate, Di-n-Butyl Phthalate, Dinitrophenols, Endosulfan Sulfate, Endrin, Endrin Aldehyde, Ethylbenzene, Fluoranthene, Fluorene, gamma-Hexachlorocyclohexane, Heptachlor, Heptachlor Epoxide, Hexachlorobenzene, Hexachlorobutadiene, Hexachlorocyclohexane, Hexachlorocyclopentadiene, Hexachloroethane, Indeno(1,2,3-cd)pyrene, Isophorone, Manganese, Methylmercury, Methoxychlor, Methyl Bromide, Methylene Chloride, Nickel, Nitrates, Nitrobenzene, Nitrosamines, Nitrosodibutylamine, Nitrosodiethylamine, Nitrosopyrrolidine, N-Nitrosodimethylamine, N-Nitrosodi-n-Propylamine, Nitrosodiphenylamine, Pathogen and Pathogen Indicators, Pentachlorobenzene, Pentachlorophenol, Phenol, Polychlorinated Biphenyls, Pyrene, Selenium, Solids Dissolved and Salinity, Tetrachloroethylene, Thallium, Toluene, Toxaphene, Trichloroethylene, Vinyl Chloride, Zinc, 1,1,1-Trichloroethane, 1,1,2,2-Tetrachloroethane, 1,1,2-Trichloroethane, 1,1-Dichloroethylene, 1,2,4,5-Tetrachlorobenzene, 1,2,4- Trichlorobenzene, 1,2-Dichlorobenzene, 1,2-Dichloroethane, 1,2-Dichloropropane, 1,2-Diphenylhydrazine, Trans-1,2-Dichloroethylene, 1,3-Dichlorobenzene, 1,3-Dichloropropene, 1,4-Dichlorobenzene, 2,3,7,8-TCDD (Dioxin), 2,4,5-Trichlorophenol, 2,4,6-Trichlorophenol, 2,4-Dichlorophenol, 2,4-Dimethylphenol, 2,4-Dinitrophenol, 2,4-Dinitrotoluene, 2-Chloronaphthalene, 2-Chlorophenol, 2-Methyl-4,6- Dinitrophenol, 3,3'-Dichlorobenzidine, 3-Methyl-4-Chlorophenol, p,p′-Dichlorodiphenyldichloroethane, p,p′- Dichlorodiphenyldichloroethylene, p,p′-Dichlorodiphenyltrichloroethane

Human Health Criteria Background July 2014: Florida’s (FDEP) Response June 2015: EPA finalizes criteria Exposure Factors critical: drinking water intake, fish consumption rate, cancer risk, bioaccumulation. September 2015: EPA Response to FDEP Timeline: DEP rulemaking likely to begin in early 2016

QUESTIONS? Greg Munson Gunster Law Firm (850)

1:15 PM SCIENCE AND FERTILIZER: WHAT THE LEGISLATURE NEEDS TO KNOW Dr. Mike Dukes, IFAS, University of Florida, Moderator Ryan Matthews, FL League of Cities Ann Aquillo, Scotts Miracle-Gro Company Mac Carraway, Carraway Consulting

Ann Aquillo Vice President Corporate Affairs

21 At Scotts, We’re Working on Smarter Solutions for Cleaner Waterways Product formulationConsumer Communications Product Innovation Collaboration

1:15 PM SCIENCE AND FERTILIZER: WHAT THE LEGISLATURE NEEDS TO KNOW Dr. Mike Dukes, IFAS, University of Florida, Moderator Ryan Matthews, FL League of Cities Ann Aquillo, Scotts Miracle-Gro Company Mac Carraway, Carraway Consulting

  The Cholesterol story as a parable  SWUCA / SWFWMD; Tampa turf moratorium  The Tampa Bay Miracle  The demonization of landscapes and lawn care Getting It Wrong

 Really?

  …because you don’t like the answer  I’m sure you have seen the story about Dr. Kevin Folta at UF?  It’s happened to others at UF as well over the years  It is the lowest aspect of the fertilizer discussion Kicking Science In The Head

  Local governments and state legislators have a difficult time ahead  All reasonable people, especially lawmakers, need to keep the focus on solutions  Jobs and the economy cannot be forgotten Legislation At All Levels

  Put science and research at the top of the budget; followed closely by education  Get stakeholders to the table early and often  Silver BB’s not bullets  It’s OK to be patient Getting It Right

 Thank You.

1:15 PM SCIENCE AND FERTILIZER: WHAT THE LEGISLATURE NEEDS TO KNOW Dr. Mike Dukes, IFAS, University of Florida, Moderator Ryan Matthews, FL League of Cities Ann Aquillo, Scotts Miracle-Gro Company Mac Carraway, Carraway Consulting