HB 1855

1
A bill to be entitled
2An act relating to natural resources; amending s. 376.121,
3F.S.; providing an alternative to the compensation
4schedule for calculating natural resources damages;
5revising procedures relating to damage assessment;
6removing a restriction on amount of compensation;
7providing an effective date.
8
9Be It Enacted by the Legislature of the State of Florida:
10
11     Section 1.  Section 376.121, Florida Statutes, is amended
12to read:
13     376.121  Liability for damage to natural resources.--The
14Legislature finds that extensive damage to the state's natural
15resources is the likely result of a pollutant discharge and that
16it is essential that the state adequately assess and recover the
17cost of such damage from responsible parties. It is the state's
18goal to recover the costs of restoration from the responsible
19parties and to restore damaged natural resources to their
20predischarge condition. In many instances, however, restoration
21is not technically feasible. In such instances, the state has
22the responsibility to its citizens to recover the cost of all
23damage to natural resources. To ensure that the public does not
24bear a substantial loss as a result of the destruction of
25natural resources, the procedures set out in this section shall
26be used to assess the cost of damage to such resources. Natural
27resources include coastal waters, wetlands, estuaries, tidal
28flats, beaches, lands adjoining the seacoasts of the state, and
29all living things except human beings. The Legislature
30recognizes the difficulty historically encountered in
31calculating the value of damaged natural resources. The value of
32certain qualities of the state's natural resources is not
33readily quantifiable, yet the resources and their qualities have
34an intrinsic value to the residents of the state, and any damage
35to natural resources and their qualities should not be dismissed
36as nonrecoverable merely because of the difficulty in
37quantifying their value. In order to avoid unnecessary
38speculation and expenditure of limited resources to determine
39these values, the Legislature hereby establishes a schedule for
40compensation for damage to the state's natural resources and the
41quality of said resources. As an alternative to the compensation
42schedule described in subsections (4), (5), (6), and (9), the
43department, when no responsible party is identified, when a
44responsible party opts out of the formula pursuant to paragraph
45(10)(a), or when the department conducts a cooperative damage
46assessment with federal agencies, may use methods of calculating
47natural resources damages in accordance with federal rules
48implementing the Oil Pollution Act of 1990, as amended.
49     (1)  The department shall assess and recover from
50responsible parties the compensation for the injury or
51destruction of natural resources, including, but not limited to,
52the death or injury of living things and damage to or
53destruction of habitat, resulting from pollutant discharges
54prohibited by s. 376.041. The amount of compensation and any
55costs of assessing damage and recovering compensation received
56by the department shall be deposited into the Florida Coastal
57Protection Trust Fund pursuant to s. 376.12 and disbursed
58according to subsection (11). Whoever violates, or causes to be
59violated, s. 376.041 shall be liable to the state for damage to
60natural resources.
61     (2)  The compensation schedule for damage to natural
62resources is based upon the cost of restoration and the loss of
63ecological, consumptive, intrinsic, recreational, scientific,
64economic, aesthetic, and educational values of such injured or
65destroyed resources. The compensation schedule takes into
66account:
67     (a)  The volume of the discharge.
68     (b)  The characteristics of the pollutant discharged. The
69toxicity, dispersibility, solubility, and persistence
70characteristics of a pollutant as affects the severity of the
71effects on the receiving environment, living things, and
72recreational and aesthetic resources. Pollutants have varying
73propensities to injure natural resources based upon their
74potential exposure and effects. Exposure to natural resources is
75determined by the dispersibility and degradability of the
76pollutant. Effects to natural resources result from mechanical
77injury and toxicity and include physical contamination,
78smothering, feeding prevention, immobilization, respiratory
79distress, direct mortality, lost recruitment of larvae and
80juveniles killed, changes in the food web, and chronic effects
81of sublethal levels of contaminates in tissues or the
82environment. For purposes of the compensation schedule,
83pollutants have been ranked for their propensity to cause injury
84to natural resources based upon a combination of their acute
85toxicity, mechanical injury, degradability, and dispersibility
86characteristics on a 1-to-3 relative scale with Category 1
87containing the pollutants with the greatest propensity to cause
88injury to natural resources. The following pollutants are
89categorized:
90     1.  Category 1: bunker and residual fuel.
91     2.  Category 2: waste oils, crude oil, lubricating oil,
92asphalt, and tars.
93     3.  Category 3: hydraulic fluids, numbers 1 and 2 diesel
94fuels, heating oil, jet aviation fuels, motor gasoline,
95including aviation gasoline, kerosene, stationary turbine fuels,
96ammonia and its derivatives, and chlorine and its derivatives.
97
98The department shall adopt rules establishing the pollutant
99category of pesticides and other pollutants as defined in s.
100376.031 and not listed in this paragraph.
101     (c)  The type and sensitivity of natural resources affected
102by a discharge, determined by the following factors:
103     1.  The location of a discharge. Inshore discharges are
104discharges that occur within waters under the jurisdiction of
105the department and within an area extending seaward from the
106coastline of the state to a point 1 statute mile seaward of the
107coastline. Nearshore discharges are discharges that occur more
108than 1 statute mile, but within 3 statute miles, seaward of the
109coastline. Offshore discharges are discharges that occur more
110than 3 statute miles seaward of the coastline.
111     2.  The location of the discharge with respect to special
112management areas designated because of their unique habitats;
113living resources; recreational use; aesthetic importance; and
114other ecological, educational, consumptive, intrinsic,
115scientific, and economic values of the natural resources located
116therein. Special management areas are state parks; recreation
117areas; national parks, seashores, estuarine research reserves,
118marine sanctuaries, wildlife refuges, and national estuary
119program water bodies; state aquatic preserves and reserves;
120classified shellfish harvesting areas; areas of critical state
121concern; federally designated critical habitat for endangered or
122threatened species; and outstanding Florida waters.
123     3.  The areal or linear extent of the natural resources
124impacted.
125     (3)  Compensation for damage to natural resources for any
126discharge of less than 25 gallons of gasoline or diesel fuel
127shall be $50.
128     (4)  Compensation schedule:
129     (a)  The amount of compensation assessed under this
130schedule is calculated by: multiplying $1 per gallon or its
131equivalent measurement of pollutant discharged, by the number of
132gallons or its equivalent measurement, times the location of the
133discharge factor, times the special management area factor.
134     (b)  Added to the amount obtained in paragraph (a) is the
135value of the observable natural resources damaged, which is
136calculated by multiplying the areal or linear coverage of
137impacted habitat by the corresponding habitat factor, times the
138special management area factor.
139     (c)  The sum of paragraphs (a) and (b) is then multiplied
140by the pollutant category factor.
141     (d)  The final damage assessment figure is the sum of the
142amount calculated in paragraph (c) plus the compensation for
143death of endangered or threatened species, plus the cost of
144conducting the damage assessment as determined by the
145department.
146     (5)(a)  The factors used in calculating the damage
147assessment are:
148     1.  Location of discharge factor:
149     a.  Discharges that originate inshore have a factor of
150eight. Discharges that originate nearshore have a factor of
151five. Discharges that originate offshore have a factor of one.
152     b.  Compensation for damage to natural resources resulting
153from discharges that originate outside of state waters but that
154traverse the state's boundaries and therefore have an impact
155upon the state's natural resources shall be calculated using a
156location factor of one.
157     c.  Compensation for damage to natural resources resulting
158from discharges of less than 10,000 gallons of pollutants which
159originate within 100 yards of an established terminal facility
160or point of routine pollutant transfer in a designated port
161authority as defined in s. 315.02 shall be assessed a location
162factor of one.
163     2.  Special management area factor: Discharges that
164originate in special management areas described in subparagraph
165(2)(c)2. have a factor of two. Discharges that originate outside
166a special management area described in subparagraph (2)(c)2.
167have a location factor of one. For discharges that originate
168outside of a special management area but impact the natural
169resources within a special management area, the value of the
170natural resources damaged within the area shall be multiplied by
171the special management area factor of two.
172     3.  Pollutant category factor: Discharges of category 1
173pollutants have a factor of eight. Discharges of category 2
174pollutants have a factor of four. Discharges of category 3
175pollutants have a factor of one.
176     4.  Habitat factor: The amount of compensation for damage
177to the natural resources of the state is established as follows:
178     a.  $10 per square foot of coral reef impacted.
179     b.  $1 per square foot of mangrove or seagrass impacted.
180     c.  $1 per linear foot of sandy beach impacted.
181     d.  $0.50 per square foot of live bottom, oyster reefs,
182worm rock, perennial algae, saltmarsh, or freshwater tidal marsh
183impacted.
184     e.  $0.05 per square foot of sand bottom or mud flats, or
185combination thereof, impacted.
186     (b)  The areal and linear coverage of habitat impacted
187shall be determined by the department using a combination of
188field measurements, aerial photogrammetry, and satellite
189imagery. An area is impacted when the pollutant comes in contact
190with the habitat.
191     (6)  It is understood that a pollutant will, by its very
192nature, result in damage to the flora and fauna of the waters of
193the state and the adjoining land. Therefore, compensation for
194such resources, which is difficult to calculate, is included in
195the compensation schedule. Not included, however, in this base
196figure is compensation for the death of endangered or threatened
197species directly attributable to the pollutant discharged.
198Compensation for the death of any animal designated by rule as
199endangered by the Fish and Wildlife Conservation Commission is
200$10,000. Compensation for the death of any animal designated by
201rule as threatened by the Fish and Wildlife Conservation
202Commission is $5,000. These amounts are not intended to reflect
203the actual value of said endangered or threatened species, but
204are included for the purposes of this section.
205     (7)  The owner or operator of the vessel or facility
206responsible for a discharge may designate a representative or
207agent to work with the department in assessing the amount of
208damage to natural resources resulting from the discharge.
209     (8)  When assessing the amount of damages to natural
210resources, the department shall be assisted, if requested by the
211department, by representatives of other state agencies and local
212governments that would enhance the department's damage
213assessment. The Fish and Wildlife Conservation Commission shall
214assist the department in the assessment of damages to wildlife
215impacted by a pollutant discharge and shall assist the
216department in recovering the costs of such damages.
217     (9)  Compensation for damage resulting from the discharge
218of two or more pollutants shall be calculated for the volume of
219each pollutant discharged. If the separate volume for each
220pollutant discharged cannot be determined, the highest
221multiplier for the pollutants discharged shall be applied to the
222entire volume of the spill. Compensation for commingled
223discharges that contact habitat shall be calculated on a
224proportional basis of discharged volumes. The highest multiplier
225for such commingled pollutants may only be applied if a
226reasonable proportionality of the commingled pollutants cannot
227be determined at the point of any contact with natural
228resources.
229     (10)  For cases in which the department is authorized to
230use a method of natural resources damage assessment other than
231the compensation schedules described in subsections (4), (5),
232(6), and (9), the department may use the methods described in
233federal rules implementing the Oil Pollution Act of 1990, as
234amended discharges of more than 30,000 gallons, the department
235shall, in consultation with the Game and Fresh Water Fish
236Commission, adopt rules by July 1, 1994, to assess compensation
237for the damage to natural resources based upon the cost of
238restoring, rehabilitating, replacing, or acquiring the
239equivalent of the damaged natural resources; the diminution in
240the value of those resources pending restoration; and the
241reasonable cost of assessing those damages. The person
242responsible for a discharge shall be given an opportunity to
243consult with the department on the assessment design and
244restoration program.
245     (a)  When a responsible party is identified and the
246department is not conducting a cooperative damage assessment
247with federal agencies For discharges greater than 30,000
248gallons, the person responsible has the option to pay the amount
249of compensation calculated pursuant to the compensation schedule
250established in subsection (4) or pay the amount determined by a
251damage assessment performed by the department. If the person
252responsible for the discharge elects to have a damage assessment
253performed, then such person shall notify the department in
254writing of such decision within 30 15 days after identification
255the discovery of the discharge by the department. The decision
256to have a damage assessment performed to determine compensation
257for a discharge shall be final; the person responsible for a
258discharge may not later elect to use the compensation schedule
259for computing compensation. Failure to make such notice shall
260result in the amount of compensation for the total damage to
261natural resources being calculated based on the compensation
262schedule. The compensation shall be paid within 90 days after
263receipt of a written request from the department.
264     (b)  In the event the person responsible for a discharge
265greater than 30,000 gallons elects to have a damage assessment
266performed, said person shall pay to the department an amount
267equal to the compensation calculated pursuant to subsection (4)
268for the discharge using the lesser of the volume of the
269discharge or a volume of 30,000 gallons. The payment shall be
270made within 90 days after receipt of a written request from the
271department.
272     (c)  After completion of the damage assessment, the
273department shall advise the person responsible for the discharge
274of the amount of compensation due to the state. A credit shall
275be given for the amount paid pursuant to paragraph (b). Payment
276shall be made within 90 days after receipt of a written request
277from the department. In no event shall the total compensation
278paid pursuant to this section be less than the dollar amount
279calculated pursuant to paragraph (b).
280     (11)(a)  Moneys recovered by the department as compensation
281for damage to natural resources shall be expended only for the
282following purposes:
283     1.  To the maximum extent practicable, the restoration of
284natural resources damaged by the discharge for which
285compensation is paid.
286     2.  Restoration of damaged resources.
287     3.  Developing restoration and enhancement techniques for
288natural resources.
289     4.  Investigating methods for improving and refining
290techniques for containment, abatement, and removal of pollutants
291from the environment, especially from mangrove forests, corals,
292seagrasses, benthic communities, rookeries, nurseries, and other
293habitats which are unique to Florida's coastal environment.
294     5.  Developing and updating the "Sensitivity of Coastal
295Environments and Wildlife to Spilled Oil in Florida" atlas.
296     6.  Investigating the long-term effects of pollutant
297discharges on natural resources, including pelagic organisms,
298critical habitats, and marine ecosystems.
299     7.  Developing an adequate wildlife rescue and
300rehabilitation program.
301     8.  Expanding and enhancing the state's pollution
302prevention and control education program.
303     9.  Restoring natural resources previously impacted by
304pollutant discharges, but never completely restored.
305     10.  Funding alternative projects selected by the Board of
306Trustees of the Internal Improvement Trust Fund. Any such
307project shall be selected on the basis of its anticipated
308benefits to the marine natural resources available to the
309residents of this state who previously benefited from the
310injured or destroyed nonrestorable natural resources.
311     (b)  All interest earned from investment of moneys
312recovered by the department for damage to natural resources
313shall be expended only for the activities described in paragraph
314(a).
315     (c)  The person or parties responsible for a discharge for
316which the department has requested compensation for damage
317pursuant to this section shall pay the department, within 90
318days after receipt of the request, the entire amount due to the
319state. In the event that payment is not made within the 90 days,
320the person or parties are liable for interest on the outstanding
321balance, which interest shall be calculated at the rate
322prescribed under s. 55.03.
323     (12)  Any determination or assessment of damage to natural
324resources for the purposes of this section by the department in
325accordance with the compensation sections or in accordance with
326the rules adopted under subsection (10) shall have the force and
327effect of rebuttable presumption on behalf of the department in
328any administrative or judicial proceeding.
329     (13)  There shall be no double recovery under this law for
330natural resource damage resulting from a discharge, including
331the costs of damage assessment or restoration, rehabilitation,
332replacement, or acquisition for the same incident and natural
333resource. The department shall meet with and develop memoranda
334of understanding with appropriate federal trustees as defined in
335Pub. L. No. 101-380 (Oil Pollution Act of 1990) to provide
336further assurances of no double recovery.
337     (14)  The department must review the amount of compensation
338assessed pursuant to the damage assessment formula established
339in this section and report its findings to the 1995 Legislature.
340Thereafter, the department must conduct such a review and report
341its findings to the Legislature biennially.
342     (15)  The department shall adopt rules necessary or
343convenient for carrying out the duties, obligations, powers, and
344responsibilities set forth in this section.
345     Section 2.  This act shall take effect upon becoming a law.


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