The Florida Wastewater Regulation Program: NPDES and DEP
Richard T. Donelan
Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A.
215 South Monroe Street, Suite 500
Tallahassee, Florida 32302-0190
Effective May 1, 1995, the Florida Department of Environmental
Protection (DEP) accepted delegation of the federal National
Pollutant Discharge Elimination System (NPDES) permit program. See
S402 of the Clean Water Act (CWA), 33 U.S.C. S1251 et seq. The
terms of the delegation are specified in a Memorandum of Agreement
(MOA) between John Henry Hankinson, Regional Director, Region IV,
United States Environmental Protection Agency (EPA) and Virginia B.
Wetherell, Secretary of the Florida Department of Environmental
Florida's assumption of responsibility for the NPDES program is the
culmination of nearly twenty years of efforts to streamline
wastewater permitting in Florida by combining separate state and
federal water discharge permits under a single state-run permit
program. Although thoughtful observers had urged the State of
Florida to secure NPDES delegation since the passage of the Clean
Water Act in 1974, formal legislative authorization to seek
delegation of the NPDES program was first provided in 1989 with the
enactment of Section 403.0885, Florida Statutes. S23, Ch. 88-393,
Laws of Florida. Further amendments to S 403.0885 occurred in
1992, 16, Ch. 92-132, Laws of Fla.; in 1993, as part of the
legislation that implemented the merger of the former Departments
of Environmental Regulation and Natural Resources into DEP, S 76,
Ch. 93-213, Laws of Fla.; and in 1994, S 366, Ch. 94-356, Laws of
Fla.. These successive amendments were necessary to configure the
Florida permit program for consistency with and conformance to the
terms of the CWA.
Florida's acceptance of NPDES delegation creates a unitary permit
program governing wastewater discharges to Florida surface and
ground waters: the Florida Wastewater Regulation Program (FWRP).
Except in a few circumstances outlined below, an entity that
operates a pollution source that discharges to surface water in
Florida will no longer have to seek separate permits governing the
same discharge from the U.S. EPA and from the DEP. Florida thus
joins all of the other Southeastern States that comprise EPA Region
IV in holding delegation for the operation of the NPDES program at
the state level.
II. Florida Wastewater Regulation Program (FWRP)
A. Previous State Permit Programs Compared
1. Florida's permit programs regulating wastewater discharges
to surface and ground waters predate the creation of the Department
of Environmental Regulation in 1975. Until May 1 of this year,
state wastewater permitting included separate construction and
operation permits governing domestic waste, industrial waste,
underground injection, and other discharges to surface and ground
waters. These permits were issued under S403.087, S403.088(2), and
S403.0881, Florida Statutes, and rules promulgated thereunder.
a. For new sources subject to permitting, a construction
permit had to be obtained prior to the initiation of
construction of the source. A new source were permitted to
operate for test purposes up to six months on the authority of
its construction permit during the pendency of an application
for an operating permit.
b. Existing sources were required to hold a valid operating
permit in order to operate. Operating permits were typically
for five years, to be renewed no later than six months prior
to expiration. Ten year permits were allowed under limited
2. Florida law also allowed the issuance of temporary
operating permits ("TOPs") to facilities that were incapable of
meeting discharge standards set by DER rule. See S403.088(3)(a),
Fla. Stat.(1991). This authorization was eliminated in 1993 as
part of the statutory overhaul associated with the request for
NPDES delegation. See Ch. 93-213, S 74.
3. All wastewater permit applications were processed at
district offices. Applicants for permits paid application fees
each time an application for a permit was filed. No annual license
fees were required to be paid by permitted dischargers.
4. Any source permitted by Florida to discharge wastes to
navigable waters of the U.S. was also required to obtain a federal
NPDES permit prior to discharging to surface waters. Sources
discharging only to ground waters were not required to obtain an
B. Wastewater Permitting under FWRP
1. Effective May 1, 1995, there is a single permit program
covering the majority of wastewater discharges to waters in
Florida. Permits issued by DEP under FWRP will incorporate
existing DEP surface and ground water standards as well as
standards applicable to federal environmental permitting in general
and the NPDES program in particular.
(a) Exception: FWRP will not cover permitting of federal
facilities, municipal stormwater systems ("MS4s"), sludge sites
until 1999 at the earliest.
2. The philosophy underlying FWRP is to refrain from imposing
new permitting requirements, except for those requirements
federally specified in the regulations of the NPDES program. See
40 C.F.R. Parts 122-124.
3. The implementation of FWRP means that certain features of
former state waste water permitting no longer apply:
(a) No temporary operating permits;
(b) No separate construction permits will be issued;
(c) No ten year permits.
(d) No default permits.
4. The implementation of FWRP brings innovations to state-
(a) "One-stop shopping" at DEP;
(b) Annual permit fees for each installation permitted;
(c) Variances included in the permit;
(d) EPA review and potential permit veto;
(e) For new surface dischargers, pre-permit construction will
be allowed before final permit is issued. BUT, for new sources
discharging to ground water, permit must be final before
construction can occur.
(f) Applicability of the "permit shield."
5. Implementation of FWRP has generated major revisions and
reorganization of previous DEP wastewater regulations. The FWRP
rules draw on portions of former permitting rules, Ch. 62-4;
former domestic waste rules, 62-600; and former industrial waste
rules, 62-660. The FWRP rules include:
(a) Application review fee: 62-4.050, F.A.C.
(b) Annual fee: 62-4.052, F.A.C.
(c) Main program rules: 62-620, F.A.C.
(d) General Permits: 62-621, F.A.C.
6. Chapter 62-620, F.A.C., applies both to domestic waste
and industrial waste discharges. It does not apply to septic tanks,
collection systems, and vessels discharging to waters regulated by
the U.S. Coast Guard.
C. Some FWRP Transition Issues: Permit Consolidation and Fees
1. Because numerous existing dischargers in Florida possess
both state and federal discharge permits, one of the primary
initial questions in implementing FWRP is how to consolidate
existing permits. This will be done as follows:
(a) DEP will issue an order (by letter) consolidating
existing permits. All conditions of both permits (state and
federal NPDES) will apply. In the event of a conflict, the
more stringent condition will control.
(b) If the existing state permit is a TOP, consolidation
order will include an Administrative Order ("AO") containing
a compliance schedule for bringing the source into conformity
with the conditions of the FWRP NPDES permit.
(c) If a source has both a state operating and a state
construction permit, the operating permit will be merged with
the federal NPDES permit, while the state construction permit
will remain valid until it expires (without possibility of
(d) If a source has only a single state (construction or
operation) permit, that permit will be merged with the
source's existing NPDES permit.
2. A second transition question is the implementation of the
new FWRP annual permit fee schedule. When permit consolidation
orders go out, they will include a work sheet for the calculation
of the annual license fee applicable to the source. This fee is to
be paid by surface water dischargers only.
(a) Annual fee amounts are determined by Rule 62-4.052, F.A.C,
and depend on the size of the facility. In addition, lesser
fees are specified for intermittent or "zero discharge"
(b) For the first year of FWRP, the annual fee is due on July
31, 1995, and is to be a 2/3 proration of the otherwise
applicable fee for the permitted facility. For next year and
succeeding years, the annual fee is due on January 15 of each
(c) Late payment or failure to pay annual fee will result in
revocation of the FWRP permit for the facility.
D. FWRP Permit Application Process Changes
1. The FWRP application process differs in several
significant ways from the existing DEP wastewater permit
application process. These differences flow from the conversion of
the current application fee schedule to include a design review
fee; from the combination of federal-style, multi-stage public
comment processes and traditional state APA procedures; and from
the presence of EPA permit oversight, including the possibility of
EPA veto of a proposed permit.
2. The existing permit application fee schedule for domestic
and industrial waste facilities has been augmented by the inclusion
of a "design report review fee." In essence, the overall amount of
current fees for a new or modified facility has been retained.
Now, an applicant for a new or substantially modified facility FWRP
permit must submit an application fee and a design report review
fee instead of the former construction permit application fee.
(a) For example, for new industrial waste facility permit
applications, the application and design review fees are
identical. See Rule 62-4.050(4)(c)12, F.A.C.
3. The existing permit application completeness procedure has
been retained: 30 days in which DEP determines whether an
application is complete, followed by continuing iterations of
additional information and review until the application is deemed
4. Once an application is deemed complete, DEP has 90 days in
which to issue a draft permit for review by EPA and the taking of
public comment. This is a significant departure from existing
procedures. Once an application is complete, DEP will issue a
non-binding "decision schedule" identifying its anticipated
schedule for the issuance of draft, proposed and final permits,
including public notice deadlines and related information.
(a) The "decision schedule" is non-binding for two reasons:
first, because no default permits are allowed under NPDES; and
second, because the public comment and EPA review process are
of indeterminate length.
5. After DEP prepares its draft permit--the first of three
"states" of agency action involved in the issuance of a FWRP
permit--the draft is sent to EPA Region IV for review. EPA has an
opportunity to review the draft permit while the permit is subject
to public comment and comment by federal agencies such as U.S. Fish
and Wildlife Service and the National Park Service The draft
permit is accompanied by a DEP-prepared "fact sheet" or "statement
of basis," depending on the nature of the facility and the degree
of public interest expected. See Rule 62-620.515, F.A.C.
(a) A "fact sheet" is a detailed description of the proposed
permit and the reasons why the DEP agrees to issue the permit,
including a statement of why alternatives to the proposed
discharge were not selected. It is to include a description
of the process leading to the issuance of a final permit,
including public comment periods and public hearing request
1. Fact sheets are required for major facilities,
general permits, permits incorporating variances, and
draft permits "of wide-spread interest or that raise
2. The issuance of a fact sheet will likely generate
greater interest press and public attention than the
current notice procedure.
3. Fact sheets will only be issued with draft permits,
(b) Any application decision not requiring a fact sheet will
have a "statement of basis" describing the application and
reason for decision. This will be roughly analogous to the
current "Intent to Issue or Deny" and will be much less
detailed than the "fact sheet."
6. Much more elaborate public notice/public comment procedures are
incorporated in the FWRP process. See Rule 62-620.550, F.A.C. Two
separate public notices are required to be published at the expense
of the permit applicant:
(a) The first notice is to be published upon the issuance of
the draft permit, giving the public 30 days from the notice in
which to submit comments or request a public meeting as to the
permit application. See Rule 62-620.555, F.A.C.
1. If a public meeting is conducted, the public comment
period is automatically extended.
2. All public comment--written and oral--received by DEP
must be formally considered by DEP in taking proposed
action on the application.
3. If significant written comments are received by DEP,
it must hold a public meeting prior to action.
(b) Copies of the notice must be mailed to all agencies
interested in the permit, including state and federal
agencies; all local governments having jurisdiction over "the
area where the facility is proposed to be located." Rule 62-
620.550(3)(a)4, F.A.C.; and Indian tribes. In addition,
notice must go to persons on a DEP permit notification mailing
list kept for that purpose.
(c) A second notice, similar to the first, must be published
and mailed if, at the conclusion of the public
comment/meeting phase of the process, DEP proposes to issue a
permit to the applicant. Under the previous procedure, this
was the notice published when DEP issued its Intent to Issue
a permit and constituted the "point of entry" to the public to
challenge the permit via a formal Section 120.57(1) hearing.
Under the FWRP process, it is this second notice that
constitutes the APA point of entry to the public for a formal
7. If a formal hearing is requested by any person with
standing to do so, the FWRP process will be no different than
current permit challenge procedure: formal hearing before DOAH;
recommended order to DEP; and agency action on the recommended
8. The nature of the agency action on a FWRP application after
a formal hearing is different, however: it produces, not a final
permit, but a "proposed permit" subject to potential veto by EPA.
A proposed permit also results if, following the publication of the
"point of entry" (second) public notice, no hearing is requested.
9. Following the issuance of a "proposed permit" by DEP, DEP
is to submit the proposed permit to EPA for its concurrence. Rule
(a) If EPA concurs, DEP then issues a final permit.
(b) If EPA does not concur, it has 90 days in which to notify
the DEP of its objections to the permit. DEP must notify the
applicant of EPA's objections. DEP must revise the permit to
accommodate EPA's objections or deny the permit.
(c) DEP must finally grant or deny the permit within 30 days
of the date on which it is notified by EPA that it concurs or
objects to the proposed permit.
10. Only surface water aspects of a proposed permit will be
submitted to EPA for review. Rule 62-620.510(20), F.A.C.
(a) If EPA refuses to concur in a mixed-discharge permit,
that is, both surface and ground water discharges from a
single facility, the applicant may seek authorization for a
ground water-only discharge if it can.
11. The terms of EPA review of DEP FWRP permits are specified
in the MOA between DEP and EPA Region IV.
E. Permit Shield and Some Miscellaneous Considerations
1. A new concept in waste water permitting is that of the
"permit shield." This concept, which originated in federal air
permitting practice, allows a definitive determination of whether
an entity is in compliance with applicable: if the facility is in
compliance with its FWRP/NPDES permit, it is in compliance with the
Clean Water Act, and is not lawfully subject to enforcement.
(a) The concept of the permit shield is embodied in Rule 62-
(b) The rule specifically excepts from the shield violations
of standards and prohibitions based on toxic pollutants under
40 C.F.R. Part 129; and violations based upon sludge
(residuals) application and disposal under 40 C.F.R. Part 503.
2. FWRP has codified new general conditions applicable to all
permits issued under the program. See Rule 620.610 for the text of
23 general conditions applicable to all wastewater permits except
for general permits.
(a) Guideline for the creation of individual specific
conditions for FWRP permits are found in Rule 62-620.620,
(b) Standard specific conditions for various types of
discharge facilities are found in Rules 62-620.625 and 62-
3. General conditions for general permits issued under FWRP
rules are found at Rule 620.715, F.A.C. The various general
permits available under FWRP are found in Chapter 62-621, F.A.C.
4. The same basic procedures applicable to new permits also
apply to renewal and major modification applications. Application-
and design review fees, as appropriate, also must be paid.
5. Applications are classified into four basic types:
(b) substantial revision;
(c) minor revision; and
6. An application for a new discharge to surface waters must
be filed no later than 180 days before the expected commencement of
the proposed discharge and no later than 90 days before
(a) This is a significant change from past practice, where no
pre-permit construction of a new source was allowed.
(b) NB: Pre-permit construction is still prohibited for new
sources discharging to ground waters.
7. Requested changes to a FWRP permit are deemed by DEP to
be "substantial revisions" when they encompass:
(a) Changes to effluent limitations;
(b) Granting of variance(s);
(c) Different environmental impacts; and
(d) Different methods of treatment, disposal, or reuse.
1. This category includes changes in the character of
end products, location of discharge point, permitted
capacity, and requests for decrease in monitoring
8. Requested changes to a FWRP permit are deemed by DEP to be
"minor revisions" when they encompass:
(a) Ownership transfer;
(b) Correction of typographical errors;
(c) Changes in staffing/operator requirements;
(d) Change in expiration date;
(e) Modification to existing approved sludge site;
(f) Change incompliance schedule;
(g) Implementation of pretreatment program; and
(h) minor modifications to processes/equipment;
1. This category includes changes causing no
substantially different environmental impacts, no changes
in effluent characteristics, permitted capacity, or types
2. Routine maintenance and ancillary modifications to
electrical systems are not considered revisions to a FWRP
9. Renewal applications are due 180 days before the
expiration date of a FWRP permit. If the application for renewal
is timely and sufficient, the permit remains in effect until all
litigation is concluded and the agency action has become final.
10. The distinction between "substantial" and "minor" permit
revisions lies primarily in the fact that applications for approval
of minor revisions carry a relatively small application fee, while
substantial revisions, in most cases, carry the full application
(a) Substantial revisions involving no increase in permitted
capacity carry a fee which is 50% of the otherwise applicable
(b) A permanent revision to a permit which is substantial,
but involves no physical plant modifications, carries a fee
that is 20% of the otherwise applicable fee.