Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. SB 2016
       
       
       
       
       
       
                                Barcode 448050                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/14/2009           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Community Affairs (Bennett) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 373.4144, Florida Statutes, is amended
    6  to read:
    7         373.4144 Federal environmental permitting.—
    8         (1) The Legislature intends to facilitate coordination and
    9  a more efficient process of implementing regulatory duties and
   10  functions between the Department of Environmental Protection,
   11  the water management districts, the United States Army Corps of
   12  Engineers, the United States Fish and Wildlife Service, the
   13  National Marine Fisheries Service, the United States
   14  Environmental Protection Agency, the Fish and Wildlife
   15  Conservation Commission, and other relevant federal and state
   16  agencies. The department is directed to develop, on or before
   17  October 1, 2005, a mechanism or plan to consolidate, to the
   18  maximum extent practicable, the federal and state wetland
   19  permitting programs. It is the intent of the Legislature that
   20  all dredge and fill activities impacting 10 acres or less of
   21  wetlands or waters, including navigable waters, be processed by
   22  the state as part of the environmental resource permitting
   23  program implemented by the department and the water management
   24  districts. The resulting mechanism or plan shall analyze and
   25  propose the development of an expanded state programmatic
   26  general permit program in conjunction with the United States
   27  Army Corps of Engineers pursuant to s. 404 of the Clean Water
   28  Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq.,
   29  and s. 10 of the Rivers and Harbors Act of 1899. Alternatively,
   30  or in combination with an expanded state programmatic general
   31  permit, the mechanism or plan may propose the creation of a
   32  series of regional general permits issued by the United States
   33  Army Corps of Engineers pursuant to the referenced statutes. All
   34  of the regional general permits must be administered by the
   35  department or the water management districts or their designees.
   36         (2)(a)The department shall pursue the issuance by the
   37  United States Army Corps of Engineers, pursuant to state and
   38  federal law and as set forth in this section, of an expanded
   39  state programmatic general permit or a series of regional
   40  general permits for categories of activities in waters of the
   41  United States governed by the Clean Water Act and in navigable
   42  waters under the Rivers and Harbors Act of 1899, which are
   43  similar in nature, which will cause only minimal adverse
   44  environmental effects when performed separately, and which will
   45  have only minimal cumulative adverse effects on the environment.
   46         (b)The department is directed to:
   47         1.Use the mechanism of a state general permit or regional
   48  general permits to eliminate overlapping federal regulations and
   49  state rules that seek to protect the same resource and to avoid
   50  duplication of permitting between the United States Army Corps
   51  of Engineers and the department for minor work located in waters
   52  of the United States, including navigable waters, thus
   53  eliminating, in appropriate cases, the need for a separate
   54  individual approval from the United States Army Corps of
   55  Engineers while ensuring the most stringent protection of
   56  wetland resources; and
   57         2.Not seek issuance of or take any action pursuant to any
   58  such permits unless the conditions are at least as protective of
   59  the environment and natural resources as existing state law
   60  under this part and federal law under the Clean Water Act and
   61  the Rivers and Harbors Act of 1899.
   62         (c)The department shall report to the Legislature by
   63  January 15 of each year on efforts to eliminate impediments to
   64  achieving greater efficiencies through expansion of a state
   65  programmatic general permit or regional general permits.
   66         (3)(2)To effectuate efficient wetland permitting and avoid
   67  duplication, the department and water management districts may
   68  implement a voluntary state programmatic general permit for all
   69  dredge and fill activities impacting 5 acres or less of wetlands
   70  or other surface waters, including navigable waters, subject to
   71  agreement with the United States Army Corps of Engineers, if the
   72  general permit is at least as protective of the environment and
   73  natural resources as existing state law under this part and
   74  federal law under the Clean Water Act and the Rivers and Harbors
   75  Act of 1899. This subsection does not prevent the department or
   76  water management districts from pursuing and implementing a
   77  state programmatic permit for projects impacting more than 5
   78  acres of wetlands or other surface waters. The department is
   79  directed to file with the Speaker of the House of
   80  Representatives and the President of the Senate a report
   81  proposing any required federal and state statutory changes that
   82  would be necessary to accomplish the directives listed in this
   83  section and to coordinate with the Florida Congressional
   84  Delegation on any necessary changes to federal law to implement
   85  the directives.
   86         (4)(3)Nothing in This section does not shall be construed
   87  to preclude the department from pursuing a series of regional
   88  general permits for construction activities in wetlands or
   89  surface waters or the complete assumption of federal permitting
   90  programs regulating the discharge of dredged or fill material
   91  pursuant to s. 404 of the Clean Water Act, Pub. L. No. 92-500,
   92  as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers
   93  and Harbors Act of 1899, so long as the assumption encompasses
   94  all dredge and fill activities in, on, or over jurisdictional
   95  wetlands or waters, including navigable waters, within the
   96  state.
   97         (5)(a)In order to assist in facilitating the objectives of
   98  this section and to promote consistency between federal and
   99  state mitigation requirements, the department and water
  100  management districts shall compare their rules regarding
  101  mitigation for adverse impacts to the mitigation rules of the
  102  United States Army Corps of Engineers and the United States
  103  Environmental Protection Agency in 73 Federal Register, pages
  104  19594-19705 (2008). The comparison shall be done in consultation
  105  with appropriate representatives of the United States Army Corps
  106  of Engineers and the United States Environmental Protection
  107  Agency. After performing the comparison, the department and
  108  water management districts shall:
  109         1.Identify any inconsistent or contradictory provisions;
  110  and
  111         2.Recommend appropriate revisions to the rules of the
  112  department or water management districts to reduce inconsistent
  113  or contradictory requirements in such a manner that will not
  114  lessen environmental protection. The recommendations shall
  115  include a consideration for increasing the geographic size of
  116  drainage basins and regional watersheds to facilitate or reflect
  117  a watershed approach to mitigation.
  118         (b)The department and water management districts shall
  119  submit a consolidated report regarding the requirements of this
  120  subsection to the Governor, the Chair of the Senate
  121  Environmental Preservation and Conservation Committee, and the
  122  Chair of the House Agriculture and Natural Resources Policy
  123  Committee by January 15, 2010. If the department and water
  124  management districts believe any conflicting state law prevents
  125  them from amending their rules to achieve the objectives of this
  126  subsection, the report must identify such law and explain why it
  127  prevents a rule amendment to achieve the objectives of this
  128  subsection.
  129         Section 2. Subsection (19) of section 373.4211, Florida
  130  Statutes, is amended to read:
  131         373.4211 Ratification of chapter 17-340, Florida
  132  Administrative Code, on the delineation of the landward extent
  133  of wetlands and surface waters.—Pursuant to s. 373.421, the
  134  Legislature ratifies chapter 17-340, Florida Administrative
  135  Code, approved on January 13, 1994, by the Environmental
  136  Regulation Commission, with the following changes:
  137         (19)(a) Rule 17-340.450(3) is amended by adding, after the
  138  species list, the following language:
  139         “Within Monroe County and the Key Largo portion of Miami
  140  Dade County only, the following species shall be listed as
  141  facultative: Alternanthera paronychioides, Byrsonima lucida,
  142  Ernodea littoralis, Guapira discolor, Marnilkara bahamensis,
  143  Pisonis rotundata, Pithecellobium keyensis, Pithecellobium
  144  unquis-cati, Randia aculeata, Reynosia septentrionalis, and
  145  Thrinax radiata.”
  146         (b)Pursuant to s. 373.421 and subject to the conditions
  147  described in this paragraph, the Legislature ratifies the
  148  changes to rule 62-340.450(3), Florida Administrative Code,
  149  approved on February 23, 2006, by the Environmental Regulation
  150  Commission which added slash pine (Pinus elliottii) and
  151  gallberry (Ilex glabra) to the list of facultative plants.
  152  However, this ratification and the rule revision will not take
  153  effect until a voluntary state programmatic general permit for
  154  all dredge and fill activities affecting up to 5 acres or more
  155  of wetlands or other surface waters is implemented as provided
  156  in s. 373.4144(2).
  157         (c)Unless the holder of a valid permit elects to use the
  158  delineation line as amended to add slash pine (Pinus elliottii)
  159  and gallberry (Ilex glabra) to the list of facultative plants,
  160  the surface water and wetland delineations identified and
  161  approved by a permit issued under rules adopted under this part
  162  before July 1, 2009, remain valid until expiration of the
  163  permit, notwithstanding the changes to rule 62-340.450(3),
  164  Florida Administrative Code, as described in this subsection.
  165  For purposes of this paragraph, the term “identified and
  166  approved” means:
  167         1.The delineation was field-verified by the permitting
  168  agency and such verification was surveyed as part of the
  169  application review process for the permit; or
  170         2.The delineation was field-verified by the permitting
  171  agency and approved pursuant to the permit.
  172  
  173  Where surface water and wetland delineations were not identified
  174  and approved pursuant to the permit issued under rules adopted
  175  under this part, delineations within the geographical area to
  176  which the permit applies shall be determined pursuant to the
  177  rules applicable at the time the permit was issued,
  178  notwithstanding the changes to rule 62-340.450(3), Florida
  179  Administrative Code, as described in this subsection. This
  180  paragraph also applies to any modification of the permit issued
  181  under rules adopted pursuant to this part which does not
  182  constitute a substantial modification within the geographical
  183  area to which the permit applies.
  184         (d)Unless the petitioner elects to use the delineation
  185  line as amended to add slash pine (Pinus elliottii) and
  186  gallberry (Ilex glabra) to the list of facultative plants, any
  187  declaratory statement issued by the department under s. 403.914,
  188  1984 Supplement to the Florida Statutes 1983 as amended,
  189  pursuant to rules adopted thereunder, or formal determination
  190  issued by the department or a water management district under s.
  191  373.421, in response to a petition filed on or before July 1,
  192  2009, shall continue to be valid for the duration of such
  193  declaratory statement or formal determination. Any petition
  194  pending on or before July 1, 2009, is exempt from the changes to
  195  rule 62-340.450(3), Florida Administrative Code, as described in
  196  this subsection, and is subject to the provisions of chapter 62
  197  340, Florida Administrative Code, in effect prior to such
  198  change. Activities proposed within the boundaries of a valid
  199  declaratory statement or formal determination issued pursuant to
  200  a petition submitted to the department or the relevant water
  201  management district on or before July 1, 2009, or within the
  202  boundaries of a revalidated jurisdictional determination prior
  203  to its expiration, shall continue to be exempt after July 1,
  204  2009 from the changes to rule 62-340.450(3), Florida
  205  Administrative Code, as described in this subsection.
  206         Section 3. This act shall take effect July 1, 2009.
  207  
  208  ================= T I T L E  A M E N D M E N T ================
  209         And the title is amended as follows:
  210         Delete everything before the enacting clause
  211  and insert:
  212                        A bill to be entitled                      
  213         An act relating to environmental permitting; amending
  214         s. 373.4144, F.S.; providing legislative intent;
  215         requiring the Department of Environmental Protection
  216         to pursue the issuance of a state programmatic permit
  217         or regional general permits from the United States
  218         Army Corps of Engineers; revising provisions requiring
  219         the Department of Environmental Protection to develop
  220         and use a mechanism consolidating federal and state
  221         wetland permitting programs; authorizing
  222         implementation of a state programmatic general permit
  223         or regional general permits by the department and
  224         water management districts for certain dredge and fill
  225         activities; specifying conditions applicable to such
  226         permits; amending s. 373.4211, F.S.; delaying the
  227         effective date of a rule adding slash pine and
  228         gallberry to the list of facultative plants; revising
  229         provisions concerning the methodologies used to
  230         delineate the landward extent of wetlands and surface
  231         waters; revising provisions concerning the vegetative
  232         index used to delineate the landward extent of
  233         wetlands and surface waters; providing for permit
  234         modification under certain circumstances; providing
  235         for certain declaratory statements or formal
  236         jurisdictional determinations from the department or a
  237         water management district; providing exemptions for
  238         certain permit petitions and applications relating to
  239         specified activities; providing an effective date.