HB 0759CS


1The State Resources Council recommends the following:
3     Council/Committee Substitute
4     Remove the entire bill and insert:
A bill to be entitled
6An act relating to environmental permitting programs;
7amending s. 373.414, F.S., relating to additional criteria
8for activities in surface waters and wetlands; revising a
9date relating to an exemption from specified requirements;
10providing for submission of financial responsibility prior
11to the commencement of phosphate mining operations;
12providing for review of financial responsibility;
13providing mechanisms for providing financial
14responsibility; providing exclusions; clarifying intent;
15creating s. 373.4143, F.S.; providing legislative intent;
16creating s. 373.4144, F.S.; providing for the
17consolidation of federal and state wetland permitting
18programs; providing duties of the Department of
19Environmental Protection; requiring a report to the
20Legislature and coordination with the Florida
21Congressional Delegation; amending s. 373.4145, F.S., and
22reenacting subsections (1)-(4), to continue the interim
23part IV permitting program for the Northwest Florida Water
24Management District; providing for future repeal of such
25interim program; amending s. 10, ch. 2003-423, Laws of
26Florida; revising the date by which the Peace River Basin
27resource management plan must be submitted; providing an
28effective date.
30     WHEREAS, the Legislature recognizes that consolidation of
31existing federal and state permitting associated with wetlands
32and navigable waters is in the public interest by eliminating
33unnecessary duplication and reducing subjective and potentially
34inconsistent permitting decisions, and
35     WHEREAS, the Legislature further recognizes that
36consolidation of federal and state wetland and navigable waters
37permitting would reduce the substantial costs to both public and
38private sectors, provide a more efficient delivery of government
39services, and avoid protracted processing delays while
40maintaining the federal and state protection afforded to
41Florida's natural resources, NOW, THEREFORE,
43Be It Enacted by the Legislature of the State of Florida:
45     Section 1.  Subsection (13) of section 373.414, Florida
46Statutes, is amended, and subsection (19) is added to said
47section, to read:
48     373.414  Additional criteria for activities in surface
49waters and wetlands.--
50     (13)  Any declaratory statement issued by the department
51under s. 403.914, 1984 Supplement to the Florida Statutes 1983,
52as amended, or pursuant to rules adopted thereunder, or by a
53water management district under s. 373.421, in response to a
54petition filed on or before June 1, 1994, shall continue to be
55valid for the duration of such declaratory statement. Any such
56petition pending on June 1, 1994, shall be exempt from the
57methodology ratified in s. 373.4211, but the rules of the
58department or the relevant water management district, as
59applicable, in effect prior to the effective date of s.
60373.4211, shall apply. Until May 1, 1998, activities within the
61boundaries of an area subject to a petition pending on June 1,
621994, and prior to final agency action on such petition, shall
63be reviewed under the rules adopted pursuant to ss. 403.91-
64403.929, 1984 Supplement to the Florida Statutes 1983, as
65amended, and this part, in existence prior to the effective date
66of the rules adopted under subsection (9), unless the applicant
67elects to have such activities reviewed under the rules adopted
68under this part, as amended in accordance with subsection (9).
69In the event that a jurisdictional declaratory statement
70pursuant to the vegetative index in effect prior to the
71effective date of chapter 84-79, Laws of Florida, has been
72obtained and is valid prior to the effective date of the rules
73adopted under subsection (9) or July 1, 1994, whichever is
74later, and the affected lands are part of a project for which a
75master development order has been issued pursuant to s.
76380.06(21), the declaratory statement shall remain valid for the
77duration of the buildout period of the project. Any
78jurisdictional determination validated by the department
79pursuant to rule 17-301.400(8), Florida Administrative Code, as
80it existed in rule 17-4.022, Florida Administrative Code, on
81April 1, 1985, shall remain in effect for a period of 5 years
82following the effective date of this act if proof of such
83validation is submitted to the department prior to January 1,
841995. In the event that a jurisdictional determination has been
85revalidated by the department pursuant to this subsection and
86the affected lands are part of a project for which a development
87order has been issued pursuant to s. 380.06(15), a final
88development order to which s. 163.3167(8) applies has been
89issued, or a vested rights determination has been issued
90pursuant to s. 380.06(20), the jurisdictional determination
91shall remain valid until the completion of the project, provided
92proof of such validation and documentation establishing that the
93project meets the requirements of this sentence are submitted to
94the department prior to January 1, 1995. Activities proposed
95within the boundaries of a valid declaratory statement issued
96pursuant to a petition submitted to either the department or the
97relevant water management district on or before prior to June 1,
981994, or a revalidated jurisdictional determination, prior to
99its expiration shall continue thereafter to be exempt from the
100methodology ratified in s. 373.4211 and to be reviewed under the
101rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to
102the Florida Statutes 1983, as amended, and this part, in
103existence prior to the effective date of the rules adopted under
104subsection (9), unless the applicant elects to have such
105activities reviewed under the rules adopted under this part, as
106amended in accordance with subsection (9).
107     (19)(a)  Financial responsibility for mitigation for
108wetlands and other surface waters required by a permit issued
109pursuant to this part for activities associated with the
110extraction of phosphate are subject to approval by the
111department as part of permit application review. Financial
112responsibility for permitted activities which will occur over a
113period of 3 years or less of mining operations must be provided
114to the department prior to the commencement of mining operations
115and shall be in an amount equal to 110 percent of the estimated
116mitigation costs for wetlands and other surface waters affected
117under the permit. For permitted activities which will occur over
118a period of more than 3 years of mining operations, the initial
119financial responsibility demonstration shall be in an amount
120equal to 110 percent of the estimated mitigation costs for
121wetlands and other surface waters affected in the first 3 years
122of operation under the permit; and, for each year thereafter,
123the financial responsibility demonstration shall be updated,
124including to provide an amount equal to 110 percent of the
125estimated mitigation costs for the next year of operations under
126the permit for which financial responsibility has not already
127been demonstrated and to release portions of the financial
128responsibility mechanisms in accordance with applicable rules.
129     (b)  The mechanisms for providing financial responsibility
130pursuant to the permit shall, at the discretion of the
131applicant, include the following:
132     1.  Cash or cash equivalent deposited in an escrow account.
133     2.  Irrevocable letter of credit.
134     3.  Performance bond.
135     4.  Trust fund agreement.
136     5.  Guarantee bond.
137     6.  Insurance certificate.
138     7.  A demonstration that the applicant meets the financial
139test and corporate guarantee requirements set forth in 40 C.F.R.
140s. 264.143(f).
141     8.  A demonstration that the applicant meets the self-
142bonding provision set forth in 30 C.F.R. s. 800.23. The form and
143content of all financial responsibility mechanisms shall be
144approved by the department. When utilizing an irrevocable letter
145of credit, performance bond, or guarantee bond, all payments
146made thereunder shall be deposited into a stand-by trust fund
147established contemporaneously with the posting of the financial
148assurance instrument. All trust fund agreements and stand-by
149trust fund agreements shall provide that distributions therefrom
150will be made only at the request of the department and that the
151trustees of such funds shall be either a national banking
152institution or a state-regulated trust company.
153     (c)  The provisions of this subsection shall not apply to
154any mitigation for wetlands and other surface waters that is
155required pursuant to a permit or permits initially issued by the
156department or district prior to January 1, 2005.
157     (d)  Nothing provided in this subsection supersedes or
158modifies the financial responsibility requirements of s.
160     Section 2.  Section 373.4143, Florida Statutes, is created
161to read:
162     373.4143  Declaration of policy.--It is the policy of the
163Legislature that the state provide efficient government services
164by consolidating, to the maximum extent practicable, federal and
165state permitting associated with wetlands and navigable waters
166within the state.
167     Section 3.  Section 373.4144, Florida Statutes, is created
168to read:
169     373.4144  Federal environmental permitting.--
170     (1)  The department is directed to develop, on or before
171October 1, 2005, a mechanism or plan to consolidate, to the
172maximum extent practicable, the federal and state wetland
173permitting programs. It is the intent of the Legislature that
174all dredge and fill activities impacting 10 acres or less of
175wetlands or waters, including navigable waters, be processed by
176the state as part of the environmental resource permitting
177program implemented by the department and the water management
178districts. The resulting mechanism or plan shall analyze and
179propose the development of an expanded state programmatic
180general permit program in conjunction with the United States
181Army Corps of Engineers pursuant to s. 404 of the Clean Water
182Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq.,
183and s. 10 of the Rivers and Harbors Act of 1899. Alternatively,
184or in combination with an expanded state programmatic general
185permit, the mechanism or plan may propose the creation of a
186series of regional general permits issued by the United States
187Army Corps of Engineers pursuant to the referenced statutes. All
188of the regional general permits must be administered by the
189department or the water management districts or their designees.
190     (2)  The department is directed to file with the Speaker of
191the House of Representatives and the President of the Senate a
192report proposing any required federal and state statutory
193changes that would be necessary to accomplish the directives
194listed in this section and to coordinate with the Florida
195Congressional Delegation on any necessary changes to federal law
196to implement the directives.
197     (3)  Nothing in this section shall be construed to preclude
198the department from pursuing complete assumption of federal
199permitting programs regulating the discharge of dredged or fill
200material pursuant to s. 404 of the Clean Water Act, Pub. L. No.
20192-500, as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the
202Rivers and Harbors Act of 1899, so long as the assumption
203encompasses all dredge and fill activities in, on, or over
204jurisdictional wetlands or waters, including navigable waters,
205within the state.
206     Section 4.  Notwithstanding the repeal of subsections (1),
207(2), (3), and (4) of section 373.4145, Florida Statutes,
208scheduled for July 1, 2005, said subsections are reenacted, and
209subsection (6) of said section is amended, to read:
210     373.4145  Interim part IV permitting program for the
211Northwest Florida Water Management District.--
212     (1)  Within the geographical jurisdiction of the Northwest
213Florida Water Management District, the permitting authority of
214the department under this part shall consist solely of the
215following, notwithstanding the rule adoption deadline in s.
217     (a)  Chapter 17-25, Florida Administrative Code, shall
218remain in full force and effect, and shall be implemented by the
219department. Notwithstanding the provisions of this section,
220chapter 17-25, Florida Administrative Code, may be amended by
221the department as necessary to comply with any requirements of
222state or federal laws or regulations, or any condition imposed
223by a federal program, or as a requirement for receipt of federal
224grant funds.
225     (b)  Rules adopted pursuant to the authority of ss. 403.91-
226403.929, 1984 Supplement to the Florida Statutes 1983, as
227amended, in effect prior to July 1, 1994, shall remain in full
228force and effect, and shall be implemented by the department.
229However, the department is authorized to establish additional
230exemptions and general permits for dredging and filling, if such
231exemptions or general permits do not allow significant adverse
232impacts to occur individually or cumulatively. However, for the
233purpose of chapter 17-312, Florida Administrative Code, the
234landward extent of surface waters of the state identified in
235rule 17-312.030(2), Florida Administrative Code, shall be
236determined in accordance with the methodology in rules 17-
237340.100 through 17-340.600, Florida Administrative Code, as
238ratified in s. 373.4211, upon the effective date of such
239ratified methodology. In implementing s. 373.421(2), the
240department shall determine the extent of those surface waters
241and wetlands within the regulatory authority of the department
242as described in this paragraph. At the request of the
243petitioner, the department shall also determine the extent of
244surface waters and wetlands which can be delineated by the
245methodology ratified in s. 373.4211, but which are not subject
246to the regulatory authority of the department as described in
247this paragraph.
248     (c)  The department may implement chapter 40A-4, Florida
249Administrative Code, in effect prior to July 1, 1994, pursuant
250to an interagency agreement with the Northwest Florida Water
251Management District adopted under s. 373.046(4).
252     (2)  The authority of the Northwest Florida Water
253Management District to implement this part or to implement any
254authority pursuant to delegation by the department shall not be
255affected by this section. The rule adoption deadline in s.
256373.414(9) shall not apply to said district.
257     (3)  The division of permitting responsibilities in s.
258373.046(4) shall not apply within the geographical jurisdiction
259of the Northwest Florida Water Management District.
260     (4)  If the United States Environmental Protection Agency
261approves an assumption of the federal program to regulate the
262discharge of dredged or fill material by the department or the
263water management districts, or both, pursuant to s. 404 of the
264Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
2651251 et seq.; the United States Army Corps of Engineers issues
266one or more state programmatic general permits under the
267referenced statutes; or the United States Environmental
268Protection Agency or the United States Corps of Engineers
269approves any other delegation of regulatory authority under the
270referenced statutes, then the department may implement any
271permitting authority granted in this part within the Northwest
272Florida Water Management District which is prescribed as a
273condition of granting such assumption, general permit, or
275     (6)  Subsections (1), (2), (3), and (4) shall be repealed
276effective July 1, 2010 2005.
277     Section 5.  Subsection (4) of section 10 of chapter 2003-
278423, Laws of Florida, is amended to read:
279     Section 10.
280     (4)  The resource management plan shall be submitted to the
281Governor, the President of the Senate, and the Speaker of the
282House of Representatives no later than January 31, 2007 July 1,
284     Section 6.  This act shall take effect upon becoming a law.

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