Florida Senate - 2005                      COMMITTEE AMENDMENT
    Bill No. SB 2510
                        Barcode 221688
                            CHAMBER ACTION
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11  The Committee on Environmental Preservation (Lawson)
12  recommended the following amendment to amendment (522094):
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14         Senate Amendment (with title amendment) 
15         On page 4,  between lines 1 and 2,
16  
17  and insert:  
18         Section 2.  Section 376.121, Florida Statutes, is
19  amended to read:
20         376.121  Liability for damage to natural
21  resources.--The Legislature finds that extensive damage to the
22  state's natural resources is the likely result of a pollutant
23  discharge and that it is essential that the state adequately
24  assess and recover the cost of such damage from responsible
25  parties. It is the state's goal to recover the costs of
26  restoration from the responsible parties and to restore
27  damaged natural resources to their predischarge condition. In
28  many instances, however, restoration is not technically
29  feasible. In such instances, the state has the responsibility
30  to its citizens to recover the cost of all damage to natural
31  resources. To ensure that the public does not bear a
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    11:32 AM   04/15/05                             s2510.ep06.01a

Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 substantial loss as a result of the destruction of natural 2 resources, the procedures set out in this section shall be 3 used to assess the cost of damage to such resources. Natural 4 resources include coastal waters, wetlands, estuaries, tidal 5 flats, beaches, lands adjoining the seacoasts of the state, 6 and all living things except human beings. The Legislature 7 recognizes the difficulty historically encountered in 8 calculating the value of damaged natural resources. The value 9 of certain qualities of the state's natural resources is not 10 readily quantifiable, yet the resources and their qualities 11 have an intrinsic value to the residents of the state, and any 12 damage to natural resources and their qualities should not be 13 dismissed as nonrecoverable merely because of the difficulty 14 in quantifying their value. In order to avoid unnecessary 15 speculation and expenditure of limited resources to determine 16 these values, the Legislature hereby establishes a schedule 17 for compensation for damage to the state's natural resources 18 and the quality of said resources. As an alternative to the 19 compensation schedule described in subsections (4), (5), (6), 20 and (9), the department, when no responsible party is 21 identified, when a responsible party opts out of the formula 22 pursuant to paragraph (10)(a), or when the department conducts 23 a cooperative damage assessment with federal agencies, may use 24 methods of calculating natural resources damages in accordance 25 with federal rules implementing the Oil Pollution Act of 1990, 26 as amended. 27 (1) The department shall assess and recover from 28 responsible parties the compensation for the injury or 29 destruction of natural resources, including, but not limited 30 to, the death or injury of living things and damage to or 31 destruction of habitat, resulting from pollutant discharges 2 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 prohibited by s. 376.041. The amount of compensation and any 2 costs of assessing damage and recovering compensation received 3 by the department shall be deposited into the Florida Coastal 4 Protection Trust Fund pursuant to s. 376.12 and disbursed 5 according to subsection (11). Whoever violates, or causes to 6 be violated, s. 376.041 shall be liable to the state for 7 damage to natural resources. 8 (2) The compensation schedule for damage to natural 9 resources is based upon the cost of restoration and the loss 10 of ecological, consumptive, intrinsic, recreational, 11 scientific, economic, aesthetic, and educational values of 12 such injured or destroyed resources. The compensation schedule 13 takes into account: 14 (a) The volume of the discharge. 15 (b) The characteristics of the pollutant discharged. 16 The toxicity, dispersibility, solubility, and persistence 17 characteristics of a pollutant as affects the severity of the 18 effects on the receiving environment, living things, and 19 recreational and aesthetic resources. Pollutants have varying 20 propensities to injure natural resources based upon their 21 potential exposure and effects. Exposure to natural resources 22 is determined by the dispersibility and degradability of the 23 pollutant. Effects to natural resources result from mechanical 24 injury and toxicity and include physical contamination, 25 smothering, feeding prevention, immobilization, respiratory 26 distress, direct mortality, lost recruitment of larvae and 27 juveniles killed, changes in the food web, and chronic effects 28 of sublethal levels of contaminates in tissues or the 29 environment. For purposes of the compensation schedule, 30 pollutants have been ranked for their propensity to cause 31 injury to natural resources based upon a combination of their 3 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 acute toxicity, mechanical injury, degradability, and 2 dispersibility characteristics on a 1-to-3 relative scale with 3 Category 1 containing the pollutants with the greatest 4 propensity to cause injury to natural resources. The following 5 pollutants are categorized: 6 1. Category 1: bunker and residual fuel. 7 2. Category 2: waste oils, crude oil, lubricating oil, 8 asphalt, and tars. 9 3. Category 3: hydraulic fluids, numbers 1 and 2 10 diesel fuels, heating oil, jet aviation fuels, motor gasoline, 11 including aviation gasoline, kerosene, stationary turbine 12 fuels, ammonia and its derivatives, and chlorine and its 13 derivatives. 14 15 The department shall adopt rules establishing the pollutant 16 category of pesticides and other pollutants as defined in s. 17 376.031 and not listed in this paragraph. 18 (c) The type and sensitivity of natural resources 19 affected by a discharge, determined by the following factors: 20 1. The location of a discharge. Inshore discharges are 21 discharges that occur within waters under the jurisdiction of 22 the department and within an area extending seaward from the 23 coastline of the state to a point 1 statute mile seaward of 24 the coastline. Nearshore discharges are discharges that occur 25 more than 1 statute mile, but within 3 statute miles, seaward 26 of the coastline. Offshore discharges are discharges that 27 occur more than 3 statute miles seaward of the coastline. 28 2. The location of the discharge with respect to 29 special management areas designated because of their unique 30 habitats; living resources; recreational use; aesthetic 31 importance; and other ecological, educational, consumptive, 4 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 intrinsic, scientific, and economic values of the natural 2 resources located therein. Special management areas are state 3 parks; recreation areas; national parks, seashores, estuarine 4 research reserves, marine sanctuaries, wildlife refuges, and 5 national estuary program water bodies; state aquatic preserves 6 and reserves; classified shellfish harvesting areas; areas of 7 critical state concern; federally designated critical habitat 8 for endangered or threatened species; and outstanding Florida 9 waters. 10 3. The areal or linear extent of the natural resources 11 impacted. 12 (3) Compensation for damage to natural resources for 13 any discharge of less than 25 gallons of gasoline or diesel 14 fuel shall be $50. 15 (4) Compensation schedule: 16 (a) The amount of compensation assessed under this 17 schedule is calculated by: multiplying $1 per gallon or its 18 equivalent measurement of pollutant discharged, by the number 19 of gallons or its equivalent measurement, times the location 20 of the discharge factor, times the special management area 21 factor. 22 (b) Added to the amount obtained in paragraph (a) is 23 the value of the observable natural resources damaged, which 24 is calculated by multiplying the areal or linear coverage of 25 impacted habitat by the corresponding habitat factor, times 26 the special management area factor. 27 (c) The sum of paragraphs (a) and (b) is then 28 multiplied by the pollutant category factor. 29 (d) The final damage assessment figure is the sum of 30 the amount calculated in paragraph (c) plus the compensation 31 for death of endangered or threatened species, plus the cost 5 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 of conducting the damage assessment as determined by the 2 department. 3 (5)(a) The factors used in calculating the damage 4 assessment are: 5 1. Location of discharge factor: 6 a. Discharges that originate inshore have a factor of 7 eight. Discharges that originate nearshore have a factor of 8 five. Discharges that originate offshore have a factor of one. 9 b. Compensation for damage to natural resources 10 resulting from discharges that originate outside of state 11 waters but that traverse the state's boundaries and therefore 12 have an impact upon the state's natural resources shall be 13 calculated using a location factor of one. 14 c. Compensation for damage to natural resources 15 resulting from discharges of less than 10,000 gallons of 16 pollutants which originate within 100 yards of an established 17 terminal facility or point of routine pollutant transfer in a 18 designated port authority as defined in s. 315.02 shall be 19 assessed a location factor of one. 20 2. Special management area factor: Discharges that 21 originate in special management areas described in 22 subparagraph (2)(c)2. have a factor of two. Discharges that 23 originate outside a special management area described in 24 subparagraph (2)(c)2. have a location factor of one. For 25 discharges that originate outside of a special management area 26 but impact the natural resources within a special management 27 area, the value of the natural resources damaged within the 28 area shall be multiplied by the special management area factor 29 of two. 30 3. Pollutant category factor: Discharges of category 1 31 pollutants have a factor of eight. Discharges of category 2 6 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 pollutants have a factor of four. Discharges of category 3 2 pollutants have a factor of one. 3 4. Habitat factor: The amount of compensation for 4 damage to the natural resources of the state is established as 5 follows: 6 a. $10 per square foot of coral reef impacted. 7 b. $1 per square foot of mangrove or seagrass 8 impacted. 9 c. $1 per linear foot of sandy beach impacted. 10 d. $0.50 per square foot of live bottom, oyster reefs, 11 worm rock, perennial algae, saltmarsh, or freshwater tidal 12 marsh impacted. 13 e. $0.05 per square foot of sand bottom or mud flats, 14 or combination thereof, impacted. 15 (b) The areal and linear coverage of habitat impacted 16 shall be determined by the department using a combination of 17 field measurements, aerial photogrammetry, and satellite 18 imagery. An area is impacted when the pollutant comes in 19 contact with the habitat. 20 (6) It is understood that a pollutant will, by its 21 very nature, result in damage to the flora and fauna of the 22 waters of the state and the adjoining land. Therefore, 23 compensation for such resources, which is difficult to 24 calculate, is included in the compensation schedule. Not 25 included, however, in this base figure is compensation for the 26 death of endangered or threatened species directly 27 attributable to the pollutant discharged. Compensation for the 28 death of any animal designated by rule as endangered by the 29 Fish and Wildlife Conservation Commission is $10,000. 30 Compensation for the death of any animal designated by rule as 31 threatened by the Fish and Wildlife Conservation Commission is 7 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 $5,000. These amounts are not intended to reflect the actual 2 value of said endangered or threatened species, but are 3 included for the purposes of this section. 4 (7) The owner or operator of the vessel or facility 5 responsible for a discharge may designate a representative or 6 agent to work with the department in assessing the amount of 7 damage to natural resources resulting from the discharge. 8 (8) When assessing the amount of damages to natural 9 resources, the department shall be assisted, if requested by 10 the department, by representatives of other state agencies and 11 local governments that would enhance the department's damage 12 assessment. The Fish and Wildlife Conservation Commission 13 shall assist the department in the assessment of damages to 14 wildlife impacted by a pollutant discharge and shall assist 15 the department in recovering the costs of such damages. 16 (9) Compensation for damage resulting from the 17 discharge of two or more pollutants shall be calculated for 18 the volume of each pollutant discharged. If the separate 19 volume for each pollutant discharged cannot be determined, the 20 highest multiplier for the pollutants discharged shall be 21 applied to the entire volume of the spill. Compensation for 22 commingled discharges that contact habitat shall be calculated 23 on a proportional basis of discharged volumes. The highest 24 multiplier for such commingled pollutants may only be applied 25 if a reasonable proportionality of the commingled pollutants 26 cannot be determined at the point of any contact with natural 27 resources. 28 (10) For cases in which the department is authorized 29 to use a method of natural resources damage assessment other 30 than the compensation schedules described in subsections (4), 31 (5), (6), and (9), the department may use the methods 8 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 described in federal rules implementing the Oil Pollution Act 2 of 1990, as amended discharges of more than 30,000 gallons, 3 the department shall, in consultation with the Game and Fresh 4 Water Fish Commission, adopt rules by July 1, 1994, to assess 5 compensation for the damage to natural resources based upon 6 the cost of restoring, rehabilitating, replacing, or acquiring 7 the equivalent of the damaged natural resources; the 8 diminution in the value of those resources pending 9 restoration; and the reasonable cost of assessing those 10 damages. The person responsible for a discharge shall be given 11 an opportunity to consult with the department on the 12 assessment design and restoration program. 13 (a) When a responsible party is identified and the 14 department is not conducting a cooperative damage assessment 15 with federal agencies For discharges greater than 30,000 16 gallons, the person responsible has the option to pay the 17 amount of compensation calculated pursuant to the compensation 18 schedule established in subsection (4) or pay the amount 19 determined by a damage assessment performed by the department. 20 If the person responsible for the discharge elects to have a 21 damage assessment performed, then such person shall notify the 22 department in writing of such decision within 30 15 days after 23 identification the discovery of the discharge by the 24 department . The decision to have a damage assessment 25 performed to determine compensation for a discharge shall be 26 final; the person responsible for a discharge may not later 27 elect to use the compensation schedule for computing 28 compensation. Failure to make such notice shall result in the 29 amount of compensation for the total damage to natural 30 resources being calculated based on the compensation schedule. 31 The compensation shall be paid within 90 days after receipt of 9 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 a written request from the department. 2 (b) In the event the person responsible for a 3 discharge greater than 30,000 gallons elects to have a damage 4 assessment performed, said person shall pay to the department 5 an amount equal to the compensation calculated pursuant to 6 subsection (4) for the discharge using the lesser of the 7 volume of the discharge or a volume of 30,000 gallons. The 8 payment shall be made within 90 days after receipt of a 9 written request from the department. 10 (c) After completion of the damage assessment, the 11 department shall advise the person responsible for the 12 discharge of the amount of compensation due to the state. A 13 credit shall be given for the amount paid pursuant to 14 paragraph (b). Payment shall be made within 90 days after 15 receipt of a written request from the department. In no event 16 shall the total compensation paid pursuant to this section be 17 less than the dollar amount calculated pursuant to paragraph 18 (b). 19 (11)(a) Moneys recovered by the department as 20 compensation for damage to natural resources shall be expended 21 only for the following purposes: 22 1. To the maximum extent practicable, the restoration 23 of natural resources damaged by the discharge for which 24 compensation is paid. 25 2. Restoration of damaged resources. 26 3. Developing restoration and enhancement techniques 27 for natural resources. 28 4. Investigating methods for improving and refining 29 techniques for containment, abatement, and removal of 30 pollutants from the environment, especially from mangrove 31 forests, corals, seagrasses, benthic communities, rookeries, 10 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 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. 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. 11 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 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 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 27 (Redesignate subsequent sections.) 28 29 30 ================ T I T L E A M E N D M E N T =============== 31 And the title is amended as follows: 12 11:32 AM 04/15/05 s2510.ep06.01a
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 2510 Barcode 221688 1 On page 4, line 21, after the semicolon 2 3 insert: 4 amending s. 376.121, F.S.; providing an 5 alternative to the compensation schedule for 6 calculating natural resources damages; revising 7 procedures relating to damage assessment; 8 removing a restriction on amount of 9 compensation; 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 13 11:32 AM 04/15/05 s2510.ep06.01a