House Bill hb0819e2

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                                   CS/HB 819, Second Engrossed/ntc



  1                      A bill to be entitled

  2         An act relating to environmental protection;

  3         amending s. 373.114, F.S.; providing that

  4         certain water management district orders and

  5         rules are not subject to specified review;

  6         amending s. 403.412, F.S., the "Environmental

  7         Protection Act of 1971"; revising requirements

  8         for initiating specified proceedings under that

  9         act; providing an effective date.

10

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

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

14  Statutes, is amended to read:

15         373.114  Land and Water Adjudicatory Commission; review

16  of district rules and orders; department review of district

17  rules.--

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

19  and Cabinet, sitting as the Land and Water Adjudicatory

20  Commission, have the exclusive authority to review any order

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

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

23  order resulting from an evidentiary hearing held under s.

24  120.569 or s. 120.57 or a rule that has been adopted after

25  issuance of a final order resulting from an evidentiary

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

27  provisions and purposes of this chapter. Subsequent to the

28  legislative ratification of the delineation methodology

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

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

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


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                                   CS/HB 819, Second Engrossed/ntc



  1  an order pertaining to activities or operations subject to

  2  conceptual plan approval pursuant to chapter 378 or a final

  3  order resulting from an evidentiary hearing held under s.

  4  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, three four members of the

20  commission must determine on the basis of the record below

21  that the activity authorized by the order would substantially

22  affect natural resources of statewide or regional

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

24  four members of the commission determine that the order raises

25  issues of policy, statutory interpretation, or rule

26  interpretation that have regional or statewide significance

27  from the standpoint of agency precedent. The party requesting

28  the commission to review an order must allege with

29  particularity, and the commission must find, that:

30         1.  The order is in conflict with statutory

31  requirements; or


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                                   CS/HB 819, Second Engrossed/ntc



  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 unless the commission determines that a

  6  remand for a formal evidentiary proceeding is necessary to

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

  8  evidentiary administrative proceeding resulting from a remand

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

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

11  proposed water management district action, including any

12  technical staff report, shall be deemed undisputed.  The

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

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

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

16  a referral or remand pursuant to this paragraph. The

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

18  Administrative Hearings for the production of findings of

19  fact, limited to those needed to render the decision

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

21  commission determines that supplementary findings of fact are

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

23  the provisions and purposes of this chapter. Alternatively,

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

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

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

27  majority of the commission determines that supplementary

28  findings of fact are essential to determine the consistency of

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

30  chapter. Such proceedings must be conducted and the findings

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                                   CS/HB 819, Second Engrossed/ntc



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

  2  referral.

  3         (c)  If the Land and Water Adjudicatory Commission

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

  5  consistent with the provisions and purposes of this chapter,

  6  it may require the water management district to initiate

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

  8  commission determines that an order is not consistent with the

  9  provisions and purposes of this chapter, the commission may

10  rescind or modify the order or remand the proceeding for

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

12  Adjudicatory Commission only if the commission determines that

13  the activity authorized by the order would substantially

14  affect natural resources of statewide or regional

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

16  substantially affect natural resources of statewide or

17  regional significance, but which raises issues of policy that

18  have regional or statewide significance from the standpoint of

19  agency precedent, the commission may direct the district to

20  initiate rulemaking to amend its rules to assure that future

21  actions are consistent with the provisions and purposes of

22  this chapter without modifying the order.

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

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

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

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

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

28  section.

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

30  be a precondition to the seeking of judicial review pursuant

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

  2  of rule validity pursuant to s. 120.56.

  3         (f)  The Florida Land and Water Adjudicatory Commission

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

  5  order or rule of a water management district consistent with

  6  the provisions of this section.

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

  8  presumed that activity authorized by an order will not affect

  9  resources of statewide or regional significance if the

10  proposed activity:

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

12         2.  Does not create impervious surfaces greater than 2

13  acres in size, and

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

15  a named body of water designated as Outstanding Florida

16  Waters, and

17         4.  Does not adversely affect threatened or endangered

18  species.

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20  This paragraph shall not operate to hold that any activity

21  that exceeds these limits is presumed to affect resources of

22  statewide or regional significance.  The determination of

23  whether an activity will substantially affect resources of

24  statewide or regional significance shall be made on a

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

26  below.

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

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

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

30  said section to read:

31         403.412  Environmental Protection Act.--


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                                   CS/HB 819, Second Engrossed/ntc



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

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

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

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

  5  political subdivision or municipality of the state, or a

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

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

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

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

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

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

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

13  120.57 proceeding; this section does not authorize a citizen

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

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

16  prohibits a citizen whose substantial interests will be

17  determined or affected by a proposed agency action from

18  initiating a formal administrative proceeding under s. 120.569

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

20  considered to be determined or affected if the party

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

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

23  be protected by this chapter. No demonstration of special

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

25  required. A sufficient demonstration of a substantial interest

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

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

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

29  natural resources protected by this chapter.

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

31  at least 25 current members residing within the county where


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                                   CS/HB 819, Second Engrossed/ntc



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

  2  of the protection of the environment, fish and wildlife

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

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

  5  provided that the Florida corporation not for profit was

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

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

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

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

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

11  administrative proceeding under this subsection if the citizen

12  meets the standing requirements for judicial review of a case

13  or controversy pursuant to Article III of the United States

14  Constitution.

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

16  law.

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