Senate Bill sb0270c1
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Florida Senate - 2002 CS for SB 270
By the Committee on Natural Resources; and Senator King
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1 A bill to be entitled
2 An act relating to environmental protection;
3 amending s. 373.114, F.S.; providing that water
4 management district orders resulting from
5 certain evidentiary hearings are not subject to
6 specified review; amending s. 403.412, F.S.,
7 the "Environmental Protection Act of 1971";
8 revising requirements for initiating specified
9 proceedings under that act; providing an
10 effective date.
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12 Be It Enacted by the Legislature of the State of Florida:
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14 Section 1. Subsection (1) of section 373.114, Florida
15 Statutes, is amended to read:
16 373.114 Land and Water Adjudicatory Commission; review
17 of district rules and orders; department review of district
18 rules.--
19 (1) Except as provided in subsection (2), the Governor
20 and Cabinet, sitting as the Land and Water Adjudicatory
21 Commission, have the exclusive authority to review any order
22 or rule of a water management district, other than a rule
23 relating to an internal procedure of the district or an order
24 resulting from an evidentiary hearing held under s. 120.569 or
25 s. 120.57 or a rule that has been adopted after issuance of an
26 order resulting from an evidentiary hearing held under s.
27 120.56, to ensure consistency with the provisions and purposes
28 of this chapter. Subsequent to the legislative ratification of
29 the delineation methodology pursuant to s. 373.421(1), this
30 subsection also shall apply to an order of the department, or
31 a local government exercising delegated authority, pursuant to
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Florida Senate - 2002 CS for SB 270
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1 ss. 373.403-373.443, except an order pertaining to activities
2 or operations subject to conceptual plan approval pursuant to
3 chapter 378 or an order resulting from an evidentiary hearing
4 held under s. 120.569 or s. 120.57.
5 (a) Such review may be initiated by the department or
6 by a party to the proceeding below by filing a request for
7 review with the Land and Water Adjudicatory Commission and
8 serving a copy on the department and on any person named in
9 the rule or order within 20 days after adoption of the rule or
10 the rendering of the order. For the purposes of this section,
11 the term "party" means any affected person who submitted oral
12 or written testimony, sworn or unsworn, of a substantive
13 nature which stated with particularity objections to or
14 support for the rule or order that are cognizable within the
15 scope of the provisions and purposes of this chapter, or any
16 person who participated as a party in a proceeding instituted
17 pursuant to chapter 120. In order for the commission to
18 accept a request for review initiated by a party below, with
19 regard to a specific order, four members of the commission
20 must determine on the basis of the record below that the
21 activity authorized by the order would substantially affect
22 natural resources of statewide or regional significance.
23 Review of an order may also be accepted if four members of the
24 commission determine that the order raises issues of policy,
25 statutory interpretation, or rule interpretation that have
26 regional or statewide significance from the standpoint of
27 agency precedent. The party requesting the commission to
28 review an order must allege with particularity, and the
29 commission must find, that:
30 1. The order is in conflict with statutory
31 requirements; or
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1 2. The order is in conflict with the requirements of a
2 duly adopted rule.
3 (b) Review by the Land and Water Adjudicatory
4 Commission is appellate in nature and shall be based solely on
5 the record below. If there was no evidentiary administrative
6 proceeding below, the facts contained in the proposed agency
7 action, including any technical staff report, shall be deemed
8 undisputed. The matter shall be heard by the commission not
9 more than 60 days after receipt of the request for review,
10 unless waived by the parties.
11 (c) If the Land and Water Adjudicatory Commission
12 determines that a rule of a water management district is not
13 consistent with the provisions and purposes of this chapter,
14 it may require the water management district to initiate
15 rulemaking proceedings to amend or repeal the rule. If the
16 commission determines that an order is not consistent with the
17 provisions and purposes of this chapter, the commission may
18 rescind or modify the order or remand the proceeding for
19 further action consistent with the order of the Land and Water
20 Adjudicatory Commission only if the commission determines that
21 the activity authorized by the order would substantially
22 affect natural resources of statewide or regional
23 significance. In the case of an order which does not itself
24 substantially affect natural resources of statewide or
25 regional significance, but which raises issues of policy that
26 have regional or statewide significance from the standpoint of
27 agency precedent, the commission may direct the district to
28 initiate rulemaking to amend its rules to assure that future
29 actions are consistent with the provisions and purposes of
30 this chapter without modifying the order.
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1 (d) In a review under this section of a construction
2 permit issued pursuant to a conceptual permit under part IV,
3 which conceptual permit is issued after July 1, 1993, a party
4 to the review may not raise an issue which was or could have
5 been raised in a review of the conceptual permit under this
6 section.
7 (e) A request for review under this section shall not
8 be a precondition to the seeking of judicial review pursuant
9 to s. 120.68 or the seeking of an administrative determination
10 of rule validity pursuant to s. 120.56.
11 (f) The Florida Land and Water Adjudicatory Commission
12 may adopt rules to set forth its procedures for reviewing an
13 order or rule of a water management district consistent with
14 the provisions of this section.
15 (g) For the purpose of this section, it shall be
16 presumed that activity authorized by an order will not affect
17 resources of statewide or regional significance if the
18 proposed activity:
19 1. Occupies an area less than 10 acres in size, and
20 2. Does not create impervious surfaces greater than 2
21 acres in size, and
22 3. Is not located within 550 feet of the shoreline of
23 a named body of water designated as Outstanding Florida
24 Waters, and
25 4. Does not adversely affect threatened or endangered
26 species.
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28 This paragraph shall not operate to hold that any activity
29 that exceeds these limits is presumed to affect resources of
30 statewide or regional significance. The determination of
31 whether an activity will substantially affect resources of
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1 statewide or regional significance shall be made on a
2 case-by-case basis, based upon facts contained in the record
3 below.
4 Section 2. Subsection (5) of section 403.412, Florida
5 Statutes, is amended to read:
6 403.412 Environmental Protection Act.--
7 (5) In any administrative, licensing, or other
8 proceedings authorized by law for the protection of the air,
9 water, or other natural resources of the state from pollution,
10 impairment, or destruction, the Department of Legal Affairs, a
11 political subdivision or municipality of the state, or a
12 citizen of the state shall have standing to intervene as a
13 party on the filing of a verified pleading asserting that the
14 activity, conduct, or product to be licensed or permitted has
15 or will have the effect of impairing, polluting, or otherwise
16 injuring the air, water, or other natural resources of the
17 state. As used in this section and as it relates to citizens,
18 the term "intervene" means to join an ongoing proceeding; this
19 section does not authorize a citizen to institute, initiate,
20 petition for, or request a proceeding under s. 120.569 or s.
21 120.57. Nothing in this subsection limits or prohibits a
22 citizen whose substantial interests will be determined or
23 affected by a proposed agency action from initiating a formal
24 administrative proceeding under s. 120.569 or s. 120.57, or
25 from initiating an administrative proceeding if the citizen
26 meets the standing requirements for judicial review of a case
27 or controversy pursuant to Article III of the United States
28 Constitution in a matter pertaining to a federally delegated
29 or approved program. For purposes of this subsection, a
30 citizen's substantial interests will be considered to be
31 determined or affected if the party demonstrates that it may
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1 suffer an injury in fact which is of sufficient immediacy and
2 is of the type and nature intended to be protected by this
3 chapter. A sufficient demonstration of a substantial interest
4 may be made by a petitioner that establishes that the proposed
5 activity, conduct, or product to be licensed or permitted
6 affects the petitioner's use or enjoyment of air, water, or
7 natural resources protected by this chapter. Any nonprofit
8 corporation or association that has at least 25 current
9 members residing within the county where the activity is
10 proposed and that was formed for the purpose of the protection
11 of the environment, fish and wildlife resources, and
12 protection of air and water quality may initiate a hearing
13 pursuant to s. 120.569 or s. 120.57, provided that the
14 nonprofit corporation or association was formed at least 1
15 year prior to the date of the filing of the application for a
16 permit, license, or authorization that is the subject of the
17 notice of proposed agency action. Existence of the required
18 number of members of the organization may be established
19 through the submission of an affidavit, current membership
20 list, or corporate or organizational business records,
21 including the names and addresses of the 25 current members.
22 No demonstration of special injury different in kind from the
23 general public is required.
24 Section 3. This act shall take effect upon becoming a
25 law.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 270
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4 The committee substitute (CS) does not restrict the Department
of Legal Affairs, a political subdivision, or municipality
5 from initiating a proceeding under s. 120.569, F.S., or s.
120.57, F.S.; the restriction to intervention only applies to
6 citizens.
7 The CS now provides that s. 403.412(5), F.S., does not limit
or prohibit a citizen whose substantial interests will be
8 determined or affected by a proposed agency action from
initiating a formal administrative proceeding under s.
9 120.569, F.S., or s. 120.57, F.S., or from initiating an
administrative proceeding if the citizen meets the standing
10 requirements for judical review of a case or controversy
pursuant to Article III of the United States Constitution in a
11 matter pertaining to a federally delegated or approved
program. For purposes of subsection (5), a citizen's
12 substantial interests will be considered to be determined or
affected if the party demonstrates that it may suffer an
13 injury in fact which is of sufficient immediacy and is of the
type and nature intended to be protected by ch. 403, F.S. A
14 sufficient demonstration of a substantial interest may be made
by a petitioner that establishes that the proposed activity,
15 conduct, or product to be licensed or permitted affects the
petitioner's use or enjoyment of air, water, or natural
16 resources protected by ch. 403, F.S.
17 In addition, the CS permits any nonprofit corporation or
association that has at least 25 current members residing
18 within the county where an activity is proposed and that was
formed for the purpose of the protection of the environment,
19 fish and wildlife resources, and protection of air and water
quality to initiate a hearing pursuant to s. 120.569, F.S., or
20 s. 120.57, F.S., provided that the nonprofit corporation or
association was formed at least one year prior to the date of
21 the filing of the application for a permit, license, or
authorization that is the subject of the notice of proposed
22 agency action. Existence of the required number of members of
the organization may be established through the submission of
23 an affidavit, current membership list, or corporate or
organizational business records, including the names and
24 addresses of the 25 current members. No demonstration of
special injury different in kind from the general public is
25 required.
26 Subsection (7), authorizing the award of attorneys fees and
costs in administrative actions, has been deleted.
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The effective date has been changed to upon becoming law.
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