Senate Bill sb2772c1

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    Florida Senate - 2004                           CS for SB 2772

    By the Committee on Natural Resources; and Senator Clary





    312-2267-04

  1                      A bill to be entitled

  2         An act relating to compensation for damage to

  3         the state's natural resources from pollutant

  4         discharges; amending s. 376.121, F.S.;

  5         authorizing the Department of Environmental

  6         Protection to use methods established under

  7         federal regulations to calculate compensation

  8         for damage to the state's natural resources;

  9         providing that if the federal methods are not

10         used, the methods currently specified by law

11         remain applicable; providing an effective date.

12  

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

14  

15         Section 1.  Section 376.121, Florida Statutes, is

16  amended to read:

17         376.121  Liability for damage to natural

18  resources.--The Legislature finds that extensive damage to the

19  state's natural resources is the likely result of a pollutant

20  discharge and that it is essential that the state adequately

21  assess and recover the cost of the such damage from

22  responsible parties.  It is the state's goal to recover the

23  costs of restoration from the responsible parties and to

24  restore damaged natural resources to their predischarge

25  condition.  In many instances, however, restoration is not

26  technically feasible.  In these such instances, the state has

27  the responsibility to its citizens to recover the cost of all

28  damage to natural resources.  To ensure that the public does

29  not bear a substantial loss as a result of the destruction of

30  natural resources, the procedures set out in this section

31  shall be used to assess the cost of damage to the such

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    Florida Senate - 2004                           CS for SB 2772
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 1  resources.  Natural resources include coastal waters,

 2  wetlands, estuaries, tidal flats, beaches, lands adjoining the

 3  seacoasts of the state, and all living things except human

 4  beings.  The Legislature recognizes the difficulty

 5  historically encountered in calculating the value of damaged

 6  natural resources.  The value of certain qualities of the

 7  state's natural resources is not readily quantifiable, yet the

 8  resources and their qualities have an intrinsic value to the

 9  residents of the state, and any damage to natural resources

10  and their qualities should not be dismissed as nonrecoverable

11  merely because of the difficulty in quantifying their value.

12  In order to avoid unnecessary speculation and expenditure of

13  limited resources to determine these values, the Legislature

14  hereby establishes a schedule for compensation for damage to

15  the state's natural resources and the quality of said

16  resources. As an alternative to the compensation schedule

17  described in subsections (4), (5), (6), and (9), the

18  department may, when no responsible party is identified, when

19  a responsible party opts out of the formula under subsection

20  (10)(a), or when the department conducts a cooperative damage

21  assessment with federal agencies, use methods of calculating

22  natural resources damages in accordance with federal rules

23  implementing the Oil Pollution Act of 1990, as amended.

24         (1)  The department shall assess and recover from

25  responsible parties the compensation for the injury or

26  destruction of natural resources, including, but not limited

27  to, the death or injury of living things and damage to or

28  destruction of habitat, resulting from pollutant discharges

29  prohibited by s. 376.041.  The amount of compensation and any

30  costs of assessing damage and recovering compensation received

31  by the department shall be deposited into the Florida Coastal

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    Florida Senate - 2004                           CS for SB 2772
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 1  Protection Trust Fund under pursuant to s. 376.12 and

 2  disbursed according to subsection (11). Whoever violates, or

 3  causes to be violated, s. 376.041 shall be liable to the state

 4  for damage to natural resources.

 5         (2)  The compensation schedule for damage to natural

 6  resources is based upon the cost of restoration and the loss

 7  of ecological, consumptive, intrinsic, recreational,

 8  scientific, economic, aesthetic, and educational values of

 9  such injured or destroyed resources.  The compensation

10  schedule takes into account:

11         (a)  The volume of the discharge.

12         (b)  The characteristics of the pollutant discharged.

13  The toxicity, dispersibility, solubility, and persistence

14  characteristics of a pollutant as affects the severity of the

15  effects on the receiving environment, living things, and

16  recreational and aesthetic resources.  Pollutants have varying

17  propensities to injure natural resources based upon their

18  potential exposure and effects.  Exposure to natural resources

19  is determined by the dispersibility and degradability of the

20  pollutant.  Effects to natural resources result from

21  mechanical injury and toxicity and include physical

22  contamination, smothering, feeding prevention, immobilization,

23  respiratory distress, direct mortality, lost recruitment of

24  larvae and juveniles killed, changes in the food web, and

25  chronic effects of sublethal levels of contaminates in tissues

26  or the environment. For purposes of the compensation schedule,

27  pollutants have been ranked for their propensity to cause

28  injury to natural resources based upon a combination of their

29  acute toxicity, mechanical injury, degradability, and

30  dispersibility characteristics on a 1-to-3 relative scale with

31  Category 1 containing the pollutants with the greatest

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    Florida Senate - 2004                           CS for SB 2772
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 1  propensity to cause injury to natural resources. The following

 2  pollutants are categorized:

 3         1.  Category 1:  bunker and residual fuel.

 4         2.  Category 2:  waste oils, crude oil, lubricating

 5  oil, asphalt, and tars.

 6         3.  Category 3:  hydraulic fluids, numbers 1 and 2

 7  diesel fuels, heating oil, jet aviation fuels, motor gasoline,

 8  including aviation gasoline, kerosene, stationary turbine

 9  fuels, ammonia and its derivatives, and chlorine and its

10  derivatives.

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12  The department shall adopt rules establishing the pollutant

13  category of pesticides and other pollutants as defined in s.

14  376.031 and not listed in this paragraph.

15         (c)  The type and sensitivity of natural resources

16  affected by a discharge, determined by the following factors:

17         1.  The location of a discharge.  Inshore discharges

18  are discharges that occur within waters under the jurisdiction

19  of the department and within an area extending seaward from

20  the coastline of the state to a point 1 statute mile seaward

21  of the coastline. Nearshore discharges are discharges that

22  occur more than 1 statute mile, but within 3 statute miles,

23  seaward of the coastline. Offshore discharges are discharges

24  that occur more than 3 statute miles seaward of the coastline.

25         2.  The location of the discharge with respect to

26  special management areas designated because of their unique

27  habitats; living resources; recreational use; aesthetic

28  importance; and other ecological, educational, consumptive,

29  intrinsic, scientific, and economic values of the natural

30  resources located therein.  Special management areas are state

31  parks; recreation areas; national parks, seashores, estuarine

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    Florida Senate - 2004                           CS for SB 2772
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 1  research reserves, marine sanctuaries, wildlife refuges, and

 2  national estuary program water bodies; state aquatic preserves

 3  and reserves; classified shellfish harvesting areas; areas of

 4  critical state concern; federally designated critical habitat

 5  for endangered or threatened species; and outstanding Florida

 6  waters.

 7         3.  The areal or linear extent of the natural resources

 8  impacted.

 9         (3)  Compensation for damage to natural resources for

10  any discharge of less than 25 gallons of gasoline or diesel

11  fuel shall be $50.

12         (4)  Compensation schedule:

13         (a)  The amount of compensation assessed under this

14  schedule is calculated by: multiplying $1 per gallon or its

15  equivalent measurement of pollutant discharged, by the number

16  of gallons or its equivalent measurement, times the location

17  of the discharge factor, times the special management area

18  factor.

19         (b)  Added to the amount obtained in paragraph (a) is

20  the value of the observable natural resources damaged, which

21  is calculated by multiplying the areal or linear coverage of

22  impacted habitat by the corresponding habitat factor, times

23  the special management area factor.

24         (c)  The sum of paragraphs (a) and (b) is then

25  multiplied by the pollutant category factor.

26         (d)  The final damage assessment figure is the sum of

27  the amount calculated in paragraph (c) plus the compensation

28  for death of endangered or threatened species, plus the cost

29  of conducting the damage assessment as determined by the

30  department.

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    Florida Senate - 2004                           CS for SB 2772
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 1         (5)(a)  The factors used in calculating the damage

 2  assessment are:

 3         1.  Location of discharge factor:

 4         a.  Discharges that originate inshore have a factor of

 5  eight. Discharges that originate nearshore have a factor of

 6  five. Discharges that originate offshore have a factor of one.

 7         b.  Compensation for damage to natural resources

 8  resulting from discharges that originate outside of state

 9  waters but that traverse the state's boundaries and therefore

10  have an impact upon the state's natural resources shall be

11  calculated using a location factor of one.

12         c.  Compensation for damage to natural resources

13  resulting from discharges of less than 10,000 gallons of

14  pollutants which originate within 100 yards of an established

15  terminal facility or point of routine pollutant transfer in a

16  designated port authority as defined in s. 315.02 shall be

17  assessed a location factor of one.

18         2.  Special management area factor: Discharges that

19  originate in special management areas described in

20  subparagraph (2)(c)2. have a factor of two.  Discharges that

21  originate outside a special management area described in

22  subparagraph (2)(c)2. have a location factor of one.  For

23  discharges that originate outside of a special management area

24  but impact the natural resources within a special management

25  area, the value of the natural resources damaged within the

26  area shall be multiplied by the special management area factor

27  of two.

28         3.  Pollutant category factor: Discharges of category 1

29  pollutants have a factor of eight.  Discharges of category 2

30  pollutants have a factor of four.  Discharges of category 3

31  pollutants have a factor of one.

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    Florida Senate - 2004                           CS for SB 2772
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 1         4.  Habitat factor: The amount of compensation for

 2  damage to the natural resources of the state is established as

 3  follows:

 4         a.  $10 per square foot of coral reef impacted.

 5         b.  $1 per square foot of mangrove or seagrass

 6  impacted.

 7         c.  $1 per linear foot of sandy beach impacted.

 8         d.  $0.50 per square foot of live bottom, oyster reefs,

 9  worm rock, perennial algae, saltmarsh, or freshwater tidal

10  marsh impacted.

11         e.  $0.05 per square foot of sand bottom or mud flats,

12  or combination thereof, impacted.

13         (b)  The areal and linear coverage of habitat impacted

14  shall be determined by the department using a combination of

15  field measurements, aerial photogrammetry, and satellite

16  imagery.  An area is impacted when the pollutant comes in

17  contact with the habitat.

18         (6)  It is understood that a pollutant will, by its

19  very nature, result in damage to the flora and fauna of the

20  waters of the state and the adjoining land.  Therefore,

21  compensation for such resources, which is difficult to

22  calculate, is included in the compensation schedule.  Not

23  included, however, in this base figure is compensation for the

24  death of endangered or threatened species directly

25  attributable to the pollutant discharged. Compensation for the

26  death of any animal designated by rule as endangered by the

27  Fish and Wildlife Conservation Commission is $10,000.

28  Compensation for the death of any animal designated by rule as

29  threatened by the Fish and Wildlife Conservation Commission is

30  $5,000.  These amounts are not intended to reflect the actual

31  

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    Florida Senate - 2004                           CS for SB 2772
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 1  value of the said endangered or threatened species, but are

 2  included for the purposes of this section.

 3         (7)  The owner or operator of the vessel or facility

 4  responsible for a discharge may designate a representative or

 5  agent to work with the department in assessing the amount of

 6  damage to natural resources resulting from the discharge.

 7         (8)  When assessing the amount of damages to natural

 8  resources, the department shall be assisted, if requested by

 9  the department, by representatives of other state agencies and

10  local governments that would enhance the department's damage

11  assessment. The Fish and Wildlife Conservation Commission

12  shall assist the department in the assessment of damages to

13  wildlife impacted by a pollutant discharge and shall assist

14  the department in recovering the costs of the such damages.

15         (9)  Compensation for damage resulting from the

16  discharge of two or more pollutants shall be calculated for

17  the volume of each pollutant discharged.  If the separate

18  volume for each pollutant discharged cannot be determined, the

19  highest multiplier for the pollutants discharged shall be

20  applied to the entire volume of the spill.  Compensation for

21  commingled discharges that contact habitat shall be calculated

22  on a proportional basis of discharged volumes.  The highest

23  multiplier for such commingled pollutants may only be applied

24  if a reasonable proportionality of the commingled pollutants

25  cannot be determined at the point of any contact with natural

26  resources.

27         (10)  For cases in which the department may use a

28  method of natural resource damage assessment other than the

29  compensation schedules described in subsections (4), (5), (6),

30  and (9), the department may use the methods described in

31  federal rules implementing the Oil Pollution Act of 1990, as

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    Florida Senate - 2004                           CS for SB 2772
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 1  amended. For discharges of more than 30,000 gallons, the

 2  department shall, in consultation with the Game and Fresh

 3  Water Fish Commission, adopt rules by July 1, 1994, to assess

 4  compensation for the damage to natural resources based upon

 5  the cost of restoring, rehabilitating, replacing, or acquiring

 6  the equivalent of the damaged natural resources; the

 7  diminution in the value of those resources pending

 8  restoration; and the reasonable cost of assessing those

 9  damages. The person responsible for a discharge shall be given

10  an opportunity to consult with the department on the

11  assessment design and restoration program.

12         (a)  When a responsible party is identified and the

13  department is not conducting a cooperative damage assessment

14  with federal agencies For discharges greater than 30,000

15  gallons, the person responsible has the option to pay the

16  amount of compensation calculated under pursuant to the

17  compensation schedule established in subsection (4) or pay the

18  amount determined by a damage assessment performed by the

19  department. If the person responsible for the discharge elects

20  to have a damage assessment performed, then such person shall

21  notify the department in writing of the such decision within

22  30 15 days after identification the discovery of the discharge

23  by the department. The decision to have a damage assessment

24  performed to determine compensation for a discharge is shall

25  be final; the person responsible for a discharge may not later

26  elect to use the compensation schedule for computing

27  compensation. Failure to make such notice shall result in the

28  amount of compensation for the total damage to natural

29  resources being calculated based on the compensation schedule.

30  The compensation shall be paid within 90 days after receipt of

31  a written request from the department.

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    Florida Senate - 2004                           CS for SB 2772
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 1         (b)  In the event the person responsible for a

 2  discharge greater than 30,000 gallons elects to have a damage

 3  assessment performed, said person shall pay to the department

 4  an amount equal to the compensation calculated under pursuant

 5  to subsection (4) for the discharge using the lesser of the

 6  volume of the discharge or a volume of 30,000 gallons. The

 7  payment shall be made within 90 days after receipt of a

 8  written request from the department.

 9         (c)  After completion of the damage assessment, the

10  department shall advise the person responsible for the

11  discharge of the amount of compensation due to the state. A

12  credit shall be given for the amount paid under pursuant to

13  paragraph (b). Payment shall be made within 90 days after

14  receipt of a written request from the department. In no event

15  shall the total compensation paid pursuant to this section  be

16  less than the dollar amount calculated pursuant to paragraph

17  (b).

18         (11)(a)  Moneys recovered by the department as

19  compensation for damage to natural resources shall be expended

20  only for the following purposes:

21         1.  To the maximum extent practicable, the restoration

22  of natural resources damaged by the discharge for which

23  compensation is paid.

24         2.  Restoration of damaged resources.

25         3.  Developing restoration and enhancement techniques

26  for natural resources.

27         4.  Investigating methods for improving and refining

28  techniques for containment, abatement, and removal of

29  pollutants from the environment, especially from mangrove

30  forests, corals, seagrasses, benthic communities, rookeries,

31  

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    Florida Senate - 2004                           CS for SB 2772
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 1  nurseries, and other habitats which are unique to Florida's

 2  coastal environment.

 3         5.  Developing and updating the "Sensitivity of Coastal

 4  Environments and Wildlife to Spilled Oil in Florida" atlas.

 5         6.  Investigating the long-term effects of pollutant

 6  discharges on natural resources, including pelagic organisms,

 7  critical habitats, and marine ecosystems.

 8         7.  Developing an adequate wildlife rescue and

 9  rehabilitation program.

10         8.  Expanding and enhancing the state's pollution

11  prevention and control education program.

12         9.  Restoring natural resources previously impacted by

13  pollutant discharges, but never completely restored.

14         10.  Funding alternative projects selected by the Board

15  of Trustees of the Internal Improvement Trust Fund. A Any such

16  project shall be selected on the basis of its anticipated

17  benefits to the marine natural resources available to the

18  residents of this state who previously benefited from the

19  injured or destroyed nonrestorable natural resources.

20         (b)  All interest earned from investment of moneys

21  recovered by the department for damage to natural resources

22  shall be expended only for the activities described in

23  paragraph (a).

24         (c)  The person or parties responsible for a discharge

25  for which the department has requested compensation for damage

26  pursuant to this section shall pay the department, within 90

27  days after receipt of the request, the entire amount due to

28  the state. In the event that payment is not made within the 90

29  days, the person or parties are liable for interest on the

30  outstanding balance, which interest shall be calculated at the

31  rate prescribed under s. 55.03.

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 1         (12)  Any determination or assessment of damage to

 2  natural resources for the purposes of this section by the

 3  department in accordance with the compensation sections or in

 4  accordance with the rules adopted under subsection (10) shall

 5  have the force and effect of rebuttable presumption on behalf

 6  of the department in any administrative or judicial

 7  proceeding.

 8         (13)  There shall be no double recovery under this law

 9  for natural resource damage resulting from a discharge,

10  including the costs of damage assessment or restoration,

11  rehabilitation, replacement, or acquisition for the same

12  incident and natural resource.  The department shall meet with

13  and develop memoranda of understanding with appropriate

14  federal trustees as defined in Pub. L. No. 101-380 (Oil

15  Pollution Act of 1990) to provide further assurances of no

16  double recovery.

17         (14)  The department must review the amount of

18  compensation assessed under pursuant to the damage assessment

19  formula established in this section and report its findings to

20  the 1995 Legislature.  Thereafter, the department must conduct

21  such a review and report its findings to the Legislature

22  biennially.

23         (15)  The department shall adopt rules necessary or

24  convenient for carrying out the duties, obligations, powers,

25  and responsibilities set forth in this section.

26         Section 2.  This act shall take effect July 1, 2004.

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    Florida Senate - 2004                           CS for SB 2772
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2772

 3                                 

 4  The committee substitute provides that as an alternative to
    the compensation schedule for natural resources damages
 5  specified in s. 376.121, F.S., the DEP may, when no
    responsible party is identified, when a responsible party opts
 6  out of the statutory formula, or when the DEP conducts a
    cooperative damage assessment with federal agencies, use
 7  methods of calculating natural resources damages in accordance
    with federal rules implementing the Oil Pollution Act of 1990,
 8  as amended.

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