House Bill hb1119

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    Florida House of Representatives - 2001                HB 1119

        By Representative Byrd






  1                      A bill to be entitled

  2         An act relating to water and land use

  3         relationships; amending s. 163.3177, F.S.;

  4         providing additional criteria and requirements

  5         for comprehensive plan amendments; amending s.

  6         163.3180, F.S.; providing additional

  7         limitations on concurrency requirements;

  8         deleting a public transit facilities exception

  9         to certain concurrency requirements; amending

10         s. 373.019, F.S.; revising a definition;

11         amending s. 373.223, F.S.; providing additional

12         requirements for obtaining a permit; providing

13         additional criteria for board evaluation of use

14         of ground or surface waters; amending s.

15         373.229, F.S.; requiring board approval of

16         permit applications during water shortages or

17         emergencies; amending s. 373.246, F.S.;

18         revising requirements, procedures, and

19         limitations for declarations of a water

20         shortage or emergency; amending s. 373.414,

21         F.S.; revising criteria for certain mitigation

22         activities in granting or denying a permit;

23         providing an effective date.

24

25  Be It Enacted by the Legislature of the State of Florida:

26

27         Section 1.  Paragraph (c) of subsection (6) of section

28  163.3177, Florida Statutes, is amended to read:

29         163.3177  Required and optional elements of

30  comprehensive plan; studies and surveys.--

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  1         (6)  In addition to the requirements of subsections

  2  (1)-(5), the comprehensive plan shall include the following

  3  elements:

  4         (c)  A general sanitary sewer, solid waste, drainage,

  5  potable water, and natural groundwater aquifer recharge

  6  element correlated to principles and guidelines for future

  7  land use, indicating ways to provide for future potable water,

  8  drainage, sanitary sewer, solid waste, and aquifer recharge

  9  protection requirements for the area.  The element may be a

10  detailed engineering plan including a topographic map

11  depicting areas of prime groundwater recharge. The element

12  shall describe the problems and needs and the general

13  facilities that will be required for solution of the problems

14  and needs.  The element shall also include a topographic map

15  depicting any areas adopted by a regional water management

16  district as prime groundwater recharge areas for the Floridan

17  or Biscayne aquifers, pursuant to s. 373.0395.  These areas

18  shall be given special consideration when the local government

19  is engaged in zoning or considering future land use for said

20  designated areas.  For areas served by septic tanks, soil

21  surveys shall be provided which indicate the suitability of

22  soils for septic tanks. All comprehensive plan amendments that

23  would increase the amount of use, density, or intensity of use

24  on land shall be supported by data and analysis which

25  demonstrates that adequate potable water will be available to

26  the development without contributing to harm to water

27  resources or wetlands, increasing the extent of water

28  shortages, or compromising the ability of a water management

29  district to establish and implement a minimum flow and level

30  for any water body.  All comprehensive plan amendments that

31  would increase the amount of use, density, or intensity of use

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  1  on land shall be based upon the relevant data from the

  2  appropriate water management district concerning water

  3  recharge areas, floodprone areas, and minimum flows and

  4  levels.

  5         Section 2.  Paragraphs (d) and (e) are added to

  6  subsection (2) of section 163.3180, Florida Statutes, and

  7  subsection (4) of said section is amended, to read:

  8         163.3180  Concurrency.--

  9         (2)

10         (d)  No local government shall provide public

11  facilities or services that significantly impact natural

12  resources or contribute further to incrementally impact any

13  natural resource which exists in a significantly degraded

14  state due to past or current individual or cumulative impacts.

15         (e)  No local government shall issue a development

16  permit for other than facilities deemed critical by the state

17  for public health, safety, and welfare, without satisfying the

18  requirements of paragraph (d).

19         (4)(a)  The concurrency requirement as implemented in

20  local comprehensive plans applies to state and other public

21  facilities and development to the same extent that it applies

22  to all other facilities and development, as provided by law.

23         (b)  The concurrency requirement as implemented in

24  local comprehensive plans does not apply to public transit

25  facilities.  For the purposes of this paragraph, public

26  transit facilities include transit stations and terminals,

27  transit station parking, park-and-ride lots, intermodal public

28  transit connection or transfer facilities, and fixed bus,

29  guideway, and rail stations. As used in this paragraph, the

30  terms "terminals" and "transit facilities" do not include

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  1  airports or seaports or commercial or residential development

  2  constructed in conjunction with a public transit facility.

  3         Section 3.  Subsection (13) of section 373.019, Florida

  4  Statutes, is amended to read:

  5         373.019  Definitions.--When appearing in this chapter

  6  or in any rule, regulation, or order adopted pursuant thereto,

  7  the following words shall, unless the context clearly

  8  indicates otherwise, mean:

  9         (13)  "Reasonable-beneficial use" means the use of

10  water in such quantity as is necessary for economic and

11  efficient utilization for a purpose and in a manner which is

12  both reasonable and consistent with the public interest, is

13  the subject of a binding drought management plan, and will not

14  cause or contribute to a cumulative, significant impact.

15         Section 4.  Subsections (1) and (4) of section 373.223,

16  Florida Statutes, are amended, and subsection (5) is added to

17  said section, to read:

18         373.223  Conditions for a permit.--

19         (1)  To obtain a permit pursuant to the provisions of

20  this chapter, the applicant must establish that the proposed

21  use of water:

22         (a)  Is a reasonable-beneficial use as defined in s.

23  373.019.;

24         (b)  Will not interfere with any presently existing

25  legal use of water.; and

26         (c)  Is consistent with the public interest.

27         (d)  First avoids and then minimizes impacts to natural

28  resources to the extent reasonably practicable.

29         (e)  Will include a mitigation plan, approved by the

30  governing board or the department, for avoiding or minimizing

31  adverse impacts.

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  1         (f)  Will include reasonable efforts to mitigate past

  2  impacts related to water use.

  3         (g)  Can and will be reduced to levels specified by the

  4  district during times of mandatory water conservation

  5  requirements.

  6         (h)  Is consistent with the implementation of minimum

  7  flows and levels for all impacted water bodies.

  8         (i)  Is consistent with the comprehensive plans of the

  9  affected local governments.

10

11  No permit shall be issued for a development or land use, or

12  for an amount of water, that is not consistent with this

13  subsection.

14         (4)  The governing board or the department, by

15  regulation, may reserve from use by permit applicants, water

16  in such locations and quantities, and for such seasons of the

17  year, as in its judgment may be required for the protection of

18  natural resources, fish and wildlife, or the public health and

19  safety.  Such reservations shall be subject to periodic review

20  and revision in the light of changed conditions.  However, all

21  presently existing legal uses of water shall be protected so

22  long as such use is not contrary to the public interest.

23         (5)  When evaluating whether a potential use of ground

24  or surface water is consistent with the public interest,

25  pursuant to paragraph (1)(c), the governing board or

26  department shall consider:

27         (a)  Whether the activity will adversely affect the

28  public health, safety, or welfare or the property of others.

29         (b)  Whether the activity will adversely affect the

30  conservation of natural resources, fish, and wildlife,

31  including endangered or threatened species or their habitats.

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  1         (c)  Whether the activity will adversely affect

  2  navigation or the flow of water.

  3         (d)  Whether the activity will adversely affect the

  4  fishing or recreational values or marine productivity.

  5         (e)  Whether the activity will be of a temporary or

  6  permanent nature.

  7         (f)  Whether the activity will adversely affect or will

  8  enhance significant historical and archaeological resources

  9  under the provisions of s. 267.061.

10         (g)  The current condition and relative value of the

11  water resource being affected by the proposed activity.

12         (h)  The impact to natural resources, including

13  incremental adverse impacts to any natural resource which

14  exists in a significantly degraded state due to past or

15  current individual or cumulative impacts.

16         (i)  All economically and technically feasible

17  alternatives to the proposed source, including, but not

18  limited to, desalination, conservation, reuse of nonpotable

19  reclaimed water and stormwater, and aquifer storage and

20  recovery.

21         Section 5.  Subsection (4) of section 373.229, Florida

22  Statutes, is amended to read:

23         373.229  Application for permit.--

24         (4)  If the proposed application is for less than

25  100,000 gallons per day, the governing board or the department

26  may consider the application and any objections thereto

27  without a hearing.  If the proposed application is for 100,000

28  gallons per day or more and no objection is received, the

29  governing board or the department, after proper investigation

30  by its staff, may, at its discretion, approve the application

31  without a hearing. Notwithstanding the provisions of this

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  1  subsection, all applications shall require approval by the

  2  governing board during any water shortage or emergency.

  3         Section 6.  Subsections (1), (2), (3), and (7) of

  4  section 373.246, Florida Statutes, are amended to read:

  5         373.246  Declaration of water shortage or emergency.--

  6         (1)  The governing board or the department by

  7  regulation shall formulate a plan, if not in effect on the

  8  effective date of this act, no later than January 1, 2002, for

  9  implementation during periods of water shortage. As a part of

10  this plan the governing board or the department shall adopt a

11  reasonable system of water-use classification according to

12  source of water supply; method of extraction, withdrawal, or

13  diversion; or use of water or a combination thereof.  The plan

14  may include provisions for variances and alternative measures

15  to prevent undue hardship and ensure equitable distribution of

16  water resources. The district shall issue orders requiring any

17  local government within the part of the district subject to

18  the water shortage order or, in the case of a regional water

19  supply authority, the entire area served, whether or not the

20  entire area is subject to the order, to obtain approval from

21  the governing board for all development permits which

22  individually or cumulatively have the potential to be

23  inconsistent with efforts to mitigate the water shortage.

24         (2)  The governing board or the department by order may

25  declare that a water shortage exists for a source or sources

26  within all or part of the district when insufficient water is

27  or will be available to meet the present and anticipated

28  requirements of the users or when conditions are such as to

29  require temporary reduction in total use within the area to

30  protect natural water resources from serious harm. The order

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  1  shall implement the plan adopted under subsection (1) and

  2  shall constitute Such orders will be final agency action.

  3         (3)  In accordance with the plan adopted under

  4  subsection (1), the governing board or the department may

  5  impose such restrictions on one or more classes of water uses

  6  as may be necessary to protect the natural water resources of

  7  the area from serious harm and to restore them to their

  8  previous condition.

  9         (7)  If an emergency condition exists due to a water

10  shortage within any area of the district, and if the

11  department, or the executive director of the district with the

12  concurrence of the governing board, finds that the exercise of

13  powers under subsection (1) is not sufficient to protect the

14  public health, safety, or welfare; the health of animals,

15  fish, or aquatic life, or other natural resources; a public

16  water supply; or recreational, commercial, industrial,

17  agricultural, or other reasonable uses, the department it or

18  the executive director shall he or she may, pursuant to the

19  provisions of s. 373.119, issue emergency orders reciting the

20  existence of such an emergency and requiring that such action,

21  including, but not limited to, apportioning, rotating,

22  limiting, or prohibiting the use of the water resources of the

23  district, be taken as the department or the executive director

24  deems necessary to meet the emergency.

25         (a)  During an emergency, the plan shall be

26  automatically implemented to assure the availability of water

27  for the health and safety of existing residents.

28         (b)  Notwithstanding the provision for variances and

29  prevention of undue hardship, no new permit shall be issued,

30  nor shall any expansion of an existing permit be granted,

31  during the emergency within all or part of a district or the

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  1  part thereof served by a regional water supply authority,

  2  except permits necessary to assure availability of water for

  3  the health and safety of existing residents.

  4         (c)  Notwithstanding paragraphs (a) and (b), a

  5  permittee shall submit a specific plan for assuring that the

  6  permittee can meet specified water conservation goals designed

  7  to meet emergency water conservation goals reasonably expected

  8  to be adopted by the district during the duration of the

  9  requested permit.

10         Section 7.  Paragraph (b) of subsection (1) of section

11  373.414, Florida Statutes, is amended to read:

12         373.414  Additional criteria for activities in surface

13  waters and wetlands.--

14         (1)  As part of an applicant's demonstration that an

15  activity regulated under this part will not be harmful to the

16  water resources or will not be inconsistent with the overall

17  objectives of the district, the governing board or the

18  department shall require the applicant to provide reasonable

19  assurance that state water quality standards applicable to

20  waters as defined in s. 403.031(13) will not be violated and

21  reasonable assurance that such activity in, on, or over

22  surface waters or wetlands, as delineated in s. 373.421(1), is

23  not contrary to the public interest. However, if such an

24  activity significantly degrades or is within an Outstanding

25  Florida Water, as provided by department rule, the applicant

26  must provide reasonable assurance that the proposed activity

27  will be clearly in the public interest.

28         (b)  If the applicant is unable to otherwise meet the

29  criteria set forth in this subsection and provided all

30  reasonable efforts to avoid and minimize the impact have been

31  exhausted, the governing board or the department, in deciding

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  1  to grant or deny a permit, shall consider measures proposed by

  2  or acceptable to the applicant to mitigate adverse effects

  3  that may be caused by the regulated activity.  Such measures

  4  may include, but are not limited to, onsite mitigation,

  5  offsite mitigation, offsite regional mitigation, and the

  6  purchase of mitigation credits from mitigation banks permitted

  7  under s. 373.4136.  It shall be the responsibility of the

  8  applicant to choose the form of mitigation. The mitigation

  9  must offset the adverse effects caused by the regulated

10  activity.

11         1.  The department or water management districts may

12  accept the donation of money as mitigation only where the

13  donation is specified for use in a duly noticed environmental

14  creation, preservation, enhancement, or restoration project,

15  endorsed by the department or the governing board of the water

16  management district, which offsets the impacts of the activity

17  permitted under this part.  However, the provisions of this

18  subsection shall not apply to projects undertaken pursuant to

19  s. 373.4137 or chapter 378. Where a permit is required under

20  this part to implement any project endorsed by the department

21  or a water management district, all necessary permits must

22  have been issued prior to the acceptance of any cash donation.

23  After the effective date of this act, when money is donated to

24  either the department or a water management district to offset

25  impacts authorized by a permit under this part, the department

26  or the water management district shall accept only a donation

27  that represents the full cost to the department or water

28  management district of undertaking the project that is

29  intended to mitigate the adverse impacts. The full cost shall

30  include all direct and indirect costs, as applicable, such as

31  those for land acquisition, land restoration or enhancement,

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  1  perpetual land management, and general overhead consisting of

  2  costs such as staff time, building, and vehicles.  The

  3  department or the water management district may use a

  4  multiplier or percentage to add to other direct or indirect

  5  costs to estimate general overhead.  Mitigation credit for

  6  such a donation shall be given only to the extent that the

  7  donation covers the full cost to the agency of undertaking the

  8  project that is intended to mitigate the adverse impacts.

  9  However, nothing herein shall be construed to prevent the

10  department or a water management district from accepting a

11  donation representing a portion of a larger project, provided

12  that the donation covers the full cost of that portion and

13  mitigation credit is given only for that portion.  The

14  department or water management district may deviate from the

15  full cost requirements of this subparagraph to resolve a

16  proceeding brought pursuant to chapter 70 or a claim for

17  inverse condemnation.  Nothing in this section shall be

18  construed to require the owner of a private mitigation bank,

19  permitted under s. 373.4136, to include the full cost of a

20  mitigation credit in the price of the credit to a purchaser of

21  said credit.

22         2.  The department and each water management district

23  shall report to the Executive Office of the Governor by

24  January 31 of each year all cash donations accepted under

25  subparagraph 1. during the preceding calendar year for wetland

26  mitigation purposes. The report shall exclude those

27  contributions pursuant to s. 373.4137. The report shall

28  include a description of the endorsed mitigation projects and,

29  except for projects governed by s. 373.4135(6), shall address,

30  as applicable, success criteria, project implementation status

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  1  and timeframe, monitoring, long-term management, provisions

  2  for preservation, and full cost accounting.

  3         3.  If the applicant is unable to meet water quality

  4  standards because existing ambient water quality does not meet

  5  standards, the governing board or the department shall

  6  consider mitigation measures proposed by or acceptable to the

  7  applicant that cause net improvement of the water quality in

  8  the receiving body of water for those parameters which do not

  9  meet standards.

10         4.  If mitigation requirements imposed by a local

11  government for surface water and wetland impacts of an

12  activity regulated under this part cannot be reconciled with

13  mitigation requirements approved under a permit for the same

14  activity issued under this part, including application of the

15  uniform wetland mitigation assessment method adopted pursuant

16  to subsection (18), the mitigation requirements for surface

17  water and wetland impacts shall be controlled by the permit

18  issued under this part.

19         Section 8.  This act shall take effect October 1, 2001.

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21            *****************************************

22                          HOUSE SUMMARY

23
      Revises comprehensive plan and concurrency provisions and
24    consumptive use of water permit provisions to require
      greater coordination of uses of land and water resources
25    to protect natural resources, surface and ground waters,
      and wetlands.
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