CODING: Words stricken are deletions; words underlined are additions.



                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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  4  ______________________________________________________________

  5                                           ORIGINAL STAMP BELOW

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10  ______________________________________________________________

11  Representative(s) Cantens offered the following:

12

13         Substitute Amendment for Amendment (443087) 

14         On page 1, line 13 thru page 8 line 26

15  remove:  all of said lines

16

17  and insert:

18         Section 1.  Subsection (1) of section 373.114, Florida

19  Statutes, is amended to read:

20         373.114  Land and Water Adjudicatory Commission; review

21  of district rules and orders; department review of district

22  rules.--

23         (1)  Except as provided in subsection (2), the Governor

24  and Cabinet, sitting as the Land and Water Adjudicatory

25  Commission, have the exclusive authority to review any order

26  or rule of a water management district, other than a rule

27  relating to an internal procedure of the district or a final

28  order resulting from an evidentiary hearing held under s.

29  120.569 or s. 120.57 or a rule that has been adopted after

30  issuance of a final order resulting from an evidentiary

31  hearing held under s. 120.56, to ensure consistency with the

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                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)





  1  provisions and purposes of this chapter. Subsequent to the

  2  legislative ratification of the delineation methodology

  3  pursuant to s. 373.421(1), this subsection also shall apply to

  4  an order of the department, or a local government exercising

  5  delegated authority, pursuant to ss. 373.403-373.443, except

  6  an order pertaining to activities or operations subject to

  7  conceptual plan approval pursuant to chapter 378 or a final

  8  order resulting from an evidentiary hearing held under s.

  9  120.569 or s. 120.57.

10         (a)  Such review may be initiated by the department or

11  by a party to the proceeding below by filing a request for

12  review with the Land and Water Adjudicatory Commission and

13  serving a copy on the department and on any person named in

14  the rule or order within 20 days after adoption of the rule or

15  the rendering of the order. For the purposes of this section,

16  the term "party" means any affected person who submitted oral

17  or written testimony, sworn or unsworn, of a substantive

18  nature which stated with particularity objections to or

19  support for the rule or order that are cognizable within the

20  scope of the provisions and purposes of this chapter, or any

21  person who participated as a party in a proceeding instituted

22  pursuant to chapter 120.  In order for the commission to

23  accept a request for review initiated by a party below, with

24  regard to a specific order, three four members of the

25  commission must determine on the basis of the record below

26  that the activity authorized by the order would substantially

27  affect natural resources of statewide or regional

28  significance. Review of an order may also be accepted if three

29  four members of the commission determine that the order raises

30  issues of policy, statutory interpretation, or rule

31  interpretation that have regional or statewide significance

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                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)





  1  from the standpoint of agency precedent. The party requesting

  2  the commission to review an order must allege with

  3  particularity, and the commission must find, that:

  4         1.  The order is in conflict with statutory

  5  requirements; or

  6         2.  The order is in conflict with the requirements of a

  7  duly adopted rule.

  8         (b)  Review by the Land and Water Adjudicatory

  9  Commission is appellate in nature and shall be based solely on

10  the record below unless the commission determines that a

11  remand for a formal evidentiary proceeding is necessary to

12  develop additional findings of fact.  If there is was no

13  evidentiary administrative proceeding resulting from a remand

14  or referral for findings of fact by the commission, then

15  below, the facts contained in the proposed agency action or

16  proposed water management district action, including any

17  technical staff report, shall be deemed undisputed.  The

18  matter shall be heard by the commission not more than 60 days

19  after receipt of the request for review, unless waived by the

20  parties; provided, however, such time limit shall be tolled by

21  a referral or remand pursuant to this paragraph. The

22  commission may refer a request for review to the Division of

23  Administrative Hearings for the production of findings of

24  fact, limited to those needed to render the decision

25  requested, to supplement the record, if a majority of the

26  commission determines that supplementary findings of fact are

27  essential to determine the consistency of a rule or order with

28  the provisions and purposes of this chapter. Alternatively,

29  the commission may remand the matter to the agency below for

30  additional findings of fact, limited to those needed to render

31  the decision requested, to supplement the record, if a

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                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)





  1  majority of the commission determines that supplementary

  2  findings of fact are essential to determine the consistency of

  3  a rule or order with the provisions and purposes of this

  4  chapter. Such proceedings must be conducted and the findings

  5  transmitted to the commission within 90 days of the remand or

  6  referral.

  7         (c)  If the Land and Water Adjudicatory Commission

  8  determines that a rule of a water management district is not

  9  consistent with the provisions and purposes of this chapter,

10  it may require the water management district to initiate

11  rulemaking proceedings to amend or repeal the rule.  If the

12  commission determines that an order is not consistent with the

13  provisions and purposes of this chapter, the commission may

14  rescind or modify the order or remand the proceeding for

15  further action consistent with the order of the Land and Water

16  Adjudicatory Commission only if the commission determines that

17  the activity authorized by the order would substantially

18  affect natural resources of statewide or regional

19  significance.  In the case of an order which does not itself

20  substantially affect natural resources of statewide or

21  regional significance, but which raises issues of policy that

22  have regional or statewide significance from the standpoint of

23  agency precedent, the commission may direct the district to

24  initiate rulemaking to amend its rules to assure that future

25  actions are consistent with the provisions and purposes of

26  this chapter without modifying the order.

27         (d)  In a review under this section of a construction

28  permit issued pursuant to a conceptual permit under part IV,

29  which conceptual permit is issued after July 1, 1993, a party

30  to the review may not raise an issue which was or could have

31  been raised in a review of the conceptual permit under this

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                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)





  1  section.

  2         (e)  A request for review under this section shall not

  3  be a precondition to the seeking of judicial review pursuant

  4  to s. 120.68 or the seeking of an administrative determination

  5  of rule validity pursuant to s. 120.56.

  6         (f)  The Florida Land and Water Adjudicatory Commission

  7  may adopt rules to set forth its procedures for reviewing an

  8  order or rule of a water management district consistent with

  9  the provisions of this section.

10         (g)  For the purpose of this section, it shall be

11  presumed that activity authorized by an order will not affect

12  resources of statewide or regional significance if the

13  proposed activity:

14         1.  Occupies an area less than 10 acres in size, and

15         2.  Does not create impervious surfaces greater than 2

16  acres in size, and

17         3.  Is not located within 550 feet of the shoreline of

18  a named body of water designated as Outstanding Florida

19  Waters, and

20         4.  Does not adversely affect threatened or endangered

21  species.

22

23  This paragraph shall not operate to hold that any activity

24  that exceeds these limits is presumed to affect resources of

25  statewide or regional significance.  The determination of

26  whether an activity will substantially affect resources of

27  statewide or regional significance shall be made on a

28  case-by-case basis, based upon facts contained in the record

29  below.

30         Section 2.  Subsection (5) of section 403.412, Florida

31  Statutes, is amended, present subsection (6) is renumbered as

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                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)





  1  subsection (8), and new subsections (6) and (7) are added to

  2  said section to read:

  3         403.412  Environmental Protection Act.--

  4         (5)  In any administrative, licensing, or other

  5  proceedings authorized by law for the protection of the air,

  6  water, or other natural resources of the state from pollution,

  7  impairment, or destruction, the Department of Legal Affairs, a

  8  political subdivision or municipality of the state, or a

  9  citizen of the state shall have standing to intervene as a

10  party on the filing of a verified pleading asserting that the

11  activity, conduct, or product to be licensed or permitted has

12  or will have the effect of impairing, polluting, or otherwise

13  injuring the air, water, or other natural resources of the

14  state. As used in this section and as it relates to citizens,

15  the term "intervene" means to join an ongoing s. 120.569 or s.

16  120.57 proceeding; this section does not authorize a citizen

17  to institute, initiate, petition for, or request a proceeding

18  under s. 120.569 or s. 120.57.  Nothing herein limits or

19  prohibits a citizen whose substantial interests will be

20  determined or affected by a proposed agency action from

21  initiating a formal administrative proceeding under s. 120.569

22  or s. 120.57. A citizen's substantial interests will be

23  considered to be determined or affected if the party

24  demonstrates it may suffer an injury in fact which is of

25  sufficient immediacy and is of the type and nature intended to

26  be protected by this chapter. No demonstration of special

27  injury different in kind from the general public at large is

28  required. A sufficient demonstration of a substantial interest

29  may be made by a petitioner who establishes that the proposed

30  activity, conduct, or product to be licensed or permitted

31  affects the petitioner's use or enjoyment of air, water, or

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                                                   HOUSE AMENDMENT

                                      Bill No. CS/HB 819, 1st Eng.

    Amendment No. ___ (for drafter's use only)





  1  natural resources protected by this chapter.

  2         (6)  Any Florida corporation not for profit which has

  3  at least 25 current members residing within the county where

  4  the activity is proposed, and which was formed for the purpose

  5  of the protection of the environment, fish and wildlife

  6  resources, and protection of air and water quality, may

  7  initiate a hearing pursuant to s. 120.569 or s. 120.57,

  8  provided that the Florida corporation not for profit was

  9  formed at least one year prior to the date of the filing of

10  the application for a permit, license, or authorization that

11  is the subject of the notice of proposed agency action.

12         (7)  In a matter pertaining to a federally delegated or

13  approved program, a citizen of the state may initiate an

14  administrative proceeding under this subsection if the citizen

15  meets the standing requirements for judicial review of a case

16  or controversy pursuant to Article III of the United States

17  Constitution.

18         Section 3.  This act shall take effect upon becoming a

19  law.

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