SENATE AMENDMENT
    Bill No. HB 813, 2nd Eng.
    Amendment No. ___   Barcode 923276
                            CHAMBER ACTION
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11  Senator King moved the following amendment:
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13         Senate Amendment (with title amendment) 
14         On page 12, between lines 16 and 17,
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16  insert:  
17         Section 9.  Subsection (1) of section 373.114, Florida
18  Statutes, is amended to read:
19         373.114  Land and Water Adjudicatory Commission; review
20  of district rules and orders; department review of district
21  rules.--
22         (1)  Except as provided in subsection (2), the Governor
23  and Cabinet, sitting as the Land and Water Adjudicatory
24  Commission, have the exclusive authority to review any order
25  or rule of a water management district, other than a rule
26  relating to an internal procedure of the district or a final
27  order resulting from an evidentiary hearing held under s.
28  120.569 or s. 120.57 or a rule that has been adopted after
29  issuance of a final order resulting from an evidentiary
30  hearing held under s. 120.56, to ensure consistency with the
31  provisions and purposes of this chapter. Subsequent to the
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SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 legislative ratification of the delineation methodology 2 pursuant to s. 373.421(1), this subsection also shall apply to 3 an order of the department, or a local government exercising 4 delegated authority, pursuant to ss. 373.403-373.443, except 5 an order pertaining to activities or operations subject to 6 conceptual plan approval pursuant to chapter 378 or a final 7 order resulting from an evidentiary hearing held under s. 8 120.569 or s. 120.57. 9 (a) Such review may be initiated by the department or 10 by a party to the proceeding below by filing a request for 11 review with the Land and Water Adjudicatory Commission and 12 serving a copy on the department and on any person named in 13 the rule or order within 20 days after adoption of the rule or 14 the rendering of the order. For the purposes of this section, 15 the term "party" means any affected person who submitted oral 16 or written testimony, sworn or unsworn, of a substantive 17 nature which stated with particularity objections to or 18 support for the rule or order that are cognizable within the 19 scope of the provisions and purposes of this chapter, or any 20 person who participated as a party in a proceeding instituted 21 pursuant to chapter 120. In order for the commission to 22 accept a request for review initiated by a party below, with 23 regard to a specific order, three four members of the 24 commission must determine on the basis of the record below 25 that the activity authorized by the order would substantially 26 affect natural resources of statewide or regional 27 significance. Review of an order may also be accepted if three 28 four members of the commission determine that the order raises 29 issues of policy, statutory interpretation, or rule 30 interpretation that have regional or statewide significance 31 from the standpoint of agency precedent. The party requesting 2 12:42 PM 03/22/02 h0813c-08201
SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 the commission to review an order must allege with 2 particularity, and the commission must find, that: 3 1. The order is in conflict with statutory 4 requirements; or 5 2. The order is in conflict with the requirements of a 6 duly adopted rule. 7 (b) Review by the Land and Water Adjudicatory 8 Commission is appellate in nature and shall be based solely on 9 the record below unless the commission determines that a 10 remand for a formal evidentiary proceeding is necessary to 11 develop additional findings of fact. If there is was no 12 evidentiary administrative proceeding resulting from a remand 13 or referral for findings of fact by the commission, then 14 below, the facts contained in the proposed agency action or 15 proposed water management district action, including any 16 technical staff report, shall be deemed undisputed. The 17 matter shall be heard by the commission not more than 60 days 18 after receipt of the request for review, unless waived by the 19 parties; provided, however, such time limit shall be tolled by 20 a referral or remand pursuant to this paragraph. The 21 commission may refer a request for review to the Division of 22 Administrative Hearings for the production of findings of 23 fact, limited to those needed to render the decision 24 requested, to supplement the record, if a majority of the 25 commission determines that supplementary findings of fact are 26 essential to determine the consistency of a rule or order with 27 the provisions and purposes of this chapter. Alternatively, 28 the commission may remand the matter to the agency below for 29 additional findings of fact, limited to those needed to render 30 the decision requested, to supplement the record, if a 31 majority of the commission determines that supplementary 3 12:42 PM 03/22/02 h0813c-08201
SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 findings of fact are essential to determine the consistency of 2 a rule or order with the provisions and purposes of this 3 chapter. Such proceedings must be conducted and the findings 4 transmitted to the commission within 90 days of the remand or 5 referral. 6 (c) If the Land and Water Adjudicatory Commission 7 determines that a rule of a water management district is not 8 consistent with the provisions and purposes of this chapter, 9 it may require the water management district to initiate 10 rulemaking proceedings to amend or repeal the rule. If the 11 commission determines that an order is not consistent with the 12 provisions and purposes of this chapter, the commission may 13 rescind or modify the order or remand the proceeding for 14 further action consistent with the order of the Land and Water 15 Adjudicatory Commission only if the commission determines that 16 the activity authorized by the order would substantially 17 affect natural resources of statewide or regional 18 significance. In the case of an order which does not itself 19 substantially affect natural resources of statewide or 20 regional significance, but which raises issues of policy that 21 have regional or statewide significance from the standpoint of 22 agency precedent, the commission may direct the district to 23 initiate rulemaking to amend its rules to assure that future 24 actions are consistent with the provisions and purposes of 25 this chapter without modifying the order. 26 (d) In a review under this section of a construction 27 permit issued pursuant to a conceptual permit under part IV, 28 which conceptual permit is issued after July 1, 1993, a party 29 to the review may not raise an issue which was or could have 30 been raised in a review of the conceptual permit under this 31 section. 4 12:42 PM 03/22/02 h0813c-08201
SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 (e) A request for review under this section shall not 2 be a precondition to the seeking of judicial review pursuant 3 to s. 120.68 or the seeking of an administrative determination 4 of rule validity pursuant to s. 120.56. 5 (f) The Florida Land and Water Adjudicatory Commission 6 may adopt rules to set forth its procedures for reviewing an 7 order or rule of a water management district consistent with 8 the provisions of this section. 9 (g) For the purpose of this section, it shall be 10 presumed that activity authorized by an order will not affect 11 resources of statewide or regional significance if the 12 proposed activity: 13 1. Occupies an area less than 10 acres in size, and 14 2. Does not create impervious surfaces greater than 2 15 acres in size, and 16 3. Is not located within 550 feet of the shoreline of 17 a named body of water designated as Outstanding Florida 18 Waters, and 19 4. Does not adversely affect threatened or endangered 20 species. 21 22 This paragraph shall not operate to hold that any activity 23 that exceeds these limits is presumed to affect resources of 24 statewide or regional significance. The determination of 25 whether an activity will substantially affect resources of 26 statewide or regional significance shall be made on a 27 case-by-case basis, based upon facts contained in the record 28 below. 29 Section 10. Subsection (5) of section 403.412, Florida 30 Statutes, is amended, present subsection (6) is renumbered as 31 subsection (8), and new subsections (6) and (7) are added to 5 12:42 PM 03/22/02 h0813c-08201
SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 said section to read: 2 403.412 Environmental Protection Act.-- 3 (5) In any administrative, licensing, or other 4 proceedings authorized by law for the protection of the air, 5 water, or other natural resources of the state from pollution, 6 impairment, or destruction, the Department of Legal Affairs, a 7 political subdivision or municipality of the state, or a 8 citizen of the state shall have standing to intervene as a 9 party on the filing of a verified pleading asserting that the 10 activity, conduct, or product to be licensed or permitted has 11 or will have the effect of impairing, polluting, or otherwise 12 injuring the air, water, or other natural resources of the 13 state. As used in this section and as it relates to citizens, 14 the term "intervene" means to join an ongoing s. 120.569 or s. 15 120.57 proceeding; this section does not authorize a citizen 16 to institute, initiate, petition for, or request a proceeding 17 under s. 120.569 or s. 120.57. Nothing herein limits or 18 prohibits a citizen whose substantial interests will be 19 determined or affected by a proposed agency action from 20 initiating a formal administrative proceeding under s. 120.569 21 or s. 120.57. A citizen's substantial interests will be 22 considered to be determined or affected if the party 23 demonstrates it may suffer an injury in fact which is of 24 sufficient immediacy and is of the type and nature intended to 25 be protected by this chapter. No demonstration of special 26 injury different in kind from the general public at large is 27 required. A sufficient demonstration of a substantial interest 28 may be made by a petitioner who establishes that the proposed 29 activity, conduct, or product to be licensed or permitted 30 affects the petitioner's use or enjoyment of air, water, or 31 natural resources protected by this chapter. 6 12:42 PM 03/22/02 h0813c-08201
SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 (6) Any Florida corporation not for profit which has 2 at least 25 current members residing within the county where 3 the activity is proposed, and which was formed for the purpose 4 of the protection of the environment, fish and wildlife 5 resources, and protection of air and water quality, may 6 initiate a hearing pursuant to s. 120.569 or s. 120.57, 7 provided that the Florida corporation not for profit was 8 formed at least one year prior to the date of the filing of 9 the application for a permit, license, or authorization that 10 is the subject of the notice of proposed agency action. 11 (7) In a matter pertaining to a federally delegated or 12 approved program, a citizen of the state may initiate an 13 administrative proceeding under this subsection if the citizen 14 meets the standing requirements for judicial review of a case 15 or controversy pursuant to Article III of the United States 16 Constitution. 17 18 (Redesignate subsequent sections.) 19 20 21 ================ T I T L E A M E N D M E N T =============== 22 And the title is amended as follows: 23 On page 1, line 31, after the semicolon, 24 25 insert: 26 amending s. 373.114, F.S.; providing that 27 certain water management district orders and 28 rules are not subject to specified review; 29 amending s. 403.412, F.S., the "Environmental 30 Protection Act of 1971"; revising requirements 31 for initiating specified proceedings under that 7 12:42 PM 03/22/02 h0813c-08201
SENATE AMENDMENT Bill No. HB 813, 2nd Eng. Amendment No. ___ Barcode 923276 1 act; 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 8 12:42 PM 03/22/02 h0813c-08201