| 1 | The State Resources Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to environmental permitting programs; |
| 7 | amending s. 373.414, F.S., relating to additional criteria |
| 8 | for activities in surface waters and wetlands; revising a |
| 9 | date relating to an exemption from specified requirements; |
| 10 | providing for submission of financial responsibility prior |
| 11 | to the commencement of phosphate mining operations; |
| 12 | providing for review of financial responsibility; |
| 13 | providing mechanisms for providing financial |
| 14 | responsibility; providing exclusions; clarifying intent; |
| 15 | creating s. 373.4143, F.S.; providing legislative intent; |
| 16 | creating s. 373.4144, F.S.; providing for the |
| 17 | consolidation of federal and state wetland permitting |
| 18 | programs; providing duties of the Department of |
| 19 | Environmental Protection; requiring a report to the |
| 20 | Legislature and coordination with the Florida |
| 21 | Congressional Delegation; amending s. 373.4145, F.S., and |
| 22 | reenacting subsections (1)-(4), to continue the interim |
| 23 | part IV permitting program for the Northwest Florida Water |
| 24 | Management District; providing for future repeal of such |
| 25 | interim program; amending s. 10, ch. 2003-423, Laws of |
| 26 | Florida; revising the date by which the Peace River Basin |
| 27 | resource management plan must be submitted; providing an |
| 28 | effective date. |
| 29 |
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| 30 | WHEREAS, the Legislature recognizes that consolidation of |
| 31 | existing federal and state permitting associated with wetlands |
| 32 | and navigable waters is in the public interest by eliminating |
| 33 | unnecessary duplication and reducing subjective and potentially |
| 34 | inconsistent permitting decisions, and |
| 35 | WHEREAS, the Legislature further recognizes that |
| 36 | consolidation of federal and state wetland and navigable waters |
| 37 | permitting would reduce the substantial costs to both public and |
| 38 | private sectors, provide a more efficient delivery of government |
| 39 | services, and avoid protracted processing delays while |
| 40 | maintaining the federal and state protection afforded to |
| 41 | Florida's natural resources, NOW, THEREFORE, |
| 42 |
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| 43 | Be It Enacted by the Legislature of the State of Florida: |
| 44 |
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| 45 | Section 1. Subsection (13) of section 373.414, Florida |
| 46 | Statutes, is amended, and subsection (19) is added to said |
| 47 | section, to read: |
| 48 | 373.414 Additional criteria for activities in surface |
| 49 | waters and wetlands.-- |
| 50 | (13) Any declaratory statement issued by the department |
| 51 | under s. 403.914, 1984 Supplement to the Florida Statutes 1983, |
| 52 | as amended, or pursuant to rules adopted thereunder, or by a |
| 53 | water management district under s. 373.421, in response to a |
| 54 | petition filed on or before June 1, 1994, shall continue to be |
| 55 | valid for the duration of such declaratory statement. Any such |
| 56 | petition pending on June 1, 1994, shall be exempt from the |
| 57 | methodology ratified in s. 373.4211, but the rules of the |
| 58 | department or the relevant water management district, as |
| 59 | applicable, in effect prior to the effective date of s. |
| 60 | 373.4211, shall apply. Until May 1, 1998, activities within the |
| 61 | boundaries of an area subject to a petition pending on June 1, |
| 62 | 1994, and prior to final agency action on such petition, shall |
| 63 | be reviewed under the rules adopted pursuant to ss. 403.91- |
| 64 | 403.929, 1984 Supplement to the Florida Statutes 1983, as |
| 65 | amended, and this part, in existence prior to the effective date |
| 66 | of the rules adopted under subsection (9), unless the applicant |
| 67 | elects to have such activities reviewed under the rules adopted |
| 68 | under this part, as amended in accordance with subsection (9). |
| 69 | In the event that a jurisdictional declaratory statement |
| 70 | pursuant to the vegetative index in effect prior to the |
| 71 | effective date of chapter 84-79, Laws of Florida, has been |
| 72 | obtained and is valid prior to the effective date of the rules |
| 73 | adopted under subsection (9) or July 1, 1994, whichever is |
| 74 | later, and the affected lands are part of a project for which a |
| 75 | master development order has been issued pursuant to s. |
| 76 | 380.06(21), the declaratory statement shall remain valid for the |
| 77 | duration of the buildout period of the project. Any |
| 78 | jurisdictional determination validated by the department |
| 79 | pursuant to rule 17-301.400(8), Florida Administrative Code, as |
| 80 | it existed in rule 17-4.022, Florida Administrative Code, on |
| 81 | April 1, 1985, shall remain in effect for a period of 5 years |
| 82 | following the effective date of this act if proof of such |
| 83 | validation is submitted to the department prior to January 1, |
| 84 | 1995. In the event that a jurisdictional determination has been |
| 85 | revalidated by the department pursuant to this subsection and |
| 86 | the affected lands are part of a project for which a development |
| 87 | order has been issued pursuant to s. 380.06(15), a final |
| 88 | development order to which s. 163.3167(8) applies has been |
| 89 | issued, or a vested rights determination has been issued |
| 90 | pursuant to s. 380.06(20), the jurisdictional determination |
| 91 | shall remain valid until the completion of the project, provided |
| 92 | proof of such validation and documentation establishing that the |
| 93 | project meets the requirements of this sentence are submitted to |
| 94 | the department prior to January 1, 1995. Activities proposed |
| 95 | within the boundaries of a valid declaratory statement issued |
| 96 | pursuant to a petition submitted to either the department or the |
| 97 | relevant water management district on or before prior to June 1, |
| 98 | 1994, or a revalidated jurisdictional determination, prior to |
| 99 | its expiration shall continue thereafter to be exempt from the |
| 100 | methodology ratified in s. 373.4211 and to be reviewed under the |
| 101 | rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to |
| 102 | the Florida Statutes 1983, as amended, and this part, in |
| 103 | existence prior to the effective date of the rules adopted under |
| 104 | subsection (9), unless the applicant elects to have such |
| 105 | activities reviewed under the rules adopted under this part, as |
| 106 | amended in accordance with subsection (9). |
| 107 | (19)(a) Financial responsibility for mitigation for |
| 108 | wetlands and other surface waters required by a permit issued |
| 109 | pursuant to this part for activities associated with the |
| 110 | extraction of phosphate are subject to approval by the |
| 111 | department as part of permit application review. Financial |
| 112 | responsibility for permitted activities which will occur over a |
| 113 | period of 3 years or less of mining operations must be provided |
| 114 | to the department prior to the commencement of mining operations |
| 115 | and shall be in an amount equal to 110 percent of the estimated |
| 116 | mitigation costs for wetlands and other surface waters affected |
| 117 | under the permit. For permitted activities which will occur over |
| 118 | a period of more than 3 years of mining operations, the initial |
| 119 | financial responsibility demonstration shall be in an amount |
| 120 | equal to 110 percent of the estimated mitigation costs for |
| 121 | wetlands and other surface waters affected in the first 3 years |
| 122 | of operation under the permit; and, for each year thereafter, |
| 123 | the financial responsibility demonstration shall be updated, |
| 124 | including to provide an amount equal to 110 percent of the |
| 125 | estimated mitigation costs for the next year of operations under |
| 126 | the permit for which financial responsibility has not already |
| 127 | been demonstrated and to release portions of the financial |
| 128 | responsibility mechanisms in accordance with applicable rules. |
| 129 | (b) The mechanisms for providing financial responsibility |
| 130 | pursuant to the permit shall, at the discretion of the |
| 131 | applicant, 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 |
| 139 | test and corporate guarantee requirements set forth in 40 C.F.R. |
| 140 | s. 264.143(f). |
| 141 | 8. A demonstration that the applicant meets the self- |
| 142 | bonding provision set forth in 30 C.F.R. s. 800.23. The form and |
| 143 | content of all financial responsibility mechanisms shall be |
| 144 | approved by the department. When utilizing an irrevocable letter |
| 145 | of credit, performance bond, or guarantee bond, all payments |
| 146 | made thereunder shall be deposited into a stand-by trust fund |
| 147 | established contemporaneously with the posting of the financial |
| 148 | assurance instrument. All trust fund agreements and stand-by |
| 149 | trust fund agreements shall provide that distributions therefrom |
| 150 | will be made only at the request of the department and that the |
| 151 | trustees of such funds shall be either a national banking |
| 152 | institution or a state-regulated trust company. |
| 153 | (c) The provisions of this subsection shall not apply to |
| 154 | any mitigation for wetlands and other surface waters that is |
| 155 | required pursuant to a permit or permits initially issued by the |
| 156 | department or district prior to January 1, 2005. |
| 157 | (d) Nothing provided in this subsection supersedes or |
| 158 | modifies the financial responsibility requirements of s. |
| 159 | 378.209. |
| 160 | Section 2. Section 373.4143, Florida Statutes, is created |
| 161 | to read: |
| 162 | 373.4143 Declaration of policy.--It is the policy of the |
| 163 | Legislature that the state provide efficient government services |
| 164 | by consolidating, to the maximum extent practicable, federal and |
| 165 | state permitting associated with wetlands and navigable waters |
| 166 | within the state. |
| 167 | Section 3. Section 373.4144, Florida Statutes, is created |
| 168 | to read: |
| 169 | 373.4144 Federal environmental permitting.-- |
| 170 | (1) The department is directed to develop, on or before |
| 171 | October 1, 2005, a mechanism or plan to consolidate, to the |
| 172 | maximum extent practicable, the federal and state wetland |
| 173 | permitting programs. It is the intent of the Legislature that |
| 174 | all dredge and fill activities impacting 10 acres or less of |
| 175 | wetlands or waters, including navigable waters, be processed by |
| 176 | the state as part of the environmental resource permitting |
| 177 | program implemented by the department and the water management |
| 178 | districts. The resulting mechanism or plan shall analyze and |
| 179 | propose the development of an expanded state programmatic |
| 180 | general permit program in conjunction with the United States |
| 181 | Army Corps of Engineers pursuant to s. 404 of the Clean Water |
| 182 | Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., |
| 183 | and s. 10 of the Rivers and Harbors Act of 1899. Alternatively, |
| 184 | or in combination with an expanded state programmatic general |
| 185 | permit, the mechanism or plan may propose the creation of a |
| 186 | series of regional general permits issued by the United States |
| 187 | Army Corps of Engineers pursuant to the referenced statutes. All |
| 188 | of the regional general permits must be administered by the |
| 189 | department or the water management districts or their designees. |
| 190 | (2) The department is directed to file with the Speaker of |
| 191 | the House of Representatives and the President of the Senate a |
| 192 | report proposing any required federal and state statutory |
| 193 | changes that would be necessary to accomplish the directives |
| 194 | listed in this section and to coordinate with the Florida |
| 195 | Congressional Delegation on any necessary changes to federal law |
| 196 | to implement the directives. |
| 197 | (3) Nothing in this section shall be construed to preclude |
| 198 | the department from pursuing complete assumption of federal |
| 199 | permitting programs regulating the discharge of dredged or fill |
| 200 | material pursuant to s. 404 of the Clean Water Act, Pub. L. No. |
| 201 | 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the |
| 202 | Rivers and Harbors Act of 1899, so long as the assumption |
| 203 | encompasses all dredge and fill activities in, on, or over |
| 204 | jurisdictional wetlands or waters, including navigable waters, |
| 205 | within the state. |
| 206 | Section 4. Notwithstanding the repeal of subsections (1), |
| 207 | (2), (3), and (4) of section 373.4145, Florida Statutes, |
| 208 | scheduled for July 1, 2005, said subsections are reenacted, and |
| 209 | subsection (6) of said section is amended, to read: |
| 210 | 373.4145 Interim part IV permitting program for the |
| 211 | Northwest Florida Water Management District.-- |
| 212 | (1) Within the geographical jurisdiction of the Northwest |
| 213 | Florida Water Management District, the permitting authority of |
| 214 | the department under this part shall consist solely of the |
| 215 | following, notwithstanding the rule adoption deadline in s. |
| 216 | 373.414(9): |
| 217 | (a) Chapter 17-25, Florida Administrative Code, shall |
| 218 | remain in full force and effect, and shall be implemented by the |
| 219 | department. Notwithstanding the provisions of this section, |
| 220 | chapter 17-25, Florida Administrative Code, may be amended by |
| 221 | the department as necessary to comply with any requirements of |
| 222 | state or federal laws or regulations, or any condition imposed |
| 223 | by a federal program, or as a requirement for receipt of federal |
| 224 | grant funds. |
| 225 | (b) Rules adopted pursuant to the authority of ss. 403.91- |
| 226 | 403.929, 1984 Supplement to the Florida Statutes 1983, as |
| 227 | amended, in effect prior to July 1, 1994, shall remain in full |
| 228 | force and effect, and shall be implemented by the department. |
| 229 | However, the department is authorized to establish additional |
| 230 | exemptions and general permits for dredging and filling, if such |
| 231 | exemptions or general permits do not allow significant adverse |
| 232 | impacts to occur individually or cumulatively. However, for the |
| 233 | purpose of chapter 17-312, Florida Administrative Code, the |
| 234 | landward extent of surface waters of the state identified in |
| 235 | rule 17-312.030(2), Florida Administrative Code, shall be |
| 236 | determined in accordance with the methodology in rules 17- |
| 237 | 340.100 through 17-340.600, Florida Administrative Code, as |
| 238 | ratified in s. 373.4211, upon the effective date of such |
| 239 | ratified methodology. In implementing s. 373.421(2), the |
| 240 | department shall determine the extent of those surface waters |
| 241 | and wetlands within the regulatory authority of the department |
| 242 | as described in this paragraph. At the request of the |
| 243 | petitioner, the department shall also determine the extent of |
| 244 | surface waters and wetlands which can be delineated by the |
| 245 | methodology ratified in s. 373.4211, but which are not subject |
| 246 | to the regulatory authority of the department as described in |
| 247 | this paragraph. |
| 248 | (c) The department may implement chapter 40A-4, Florida |
| 249 | Administrative Code, in effect prior to July 1, 1994, pursuant |
| 250 | to an interagency agreement with the Northwest Florida Water |
| 251 | Management District adopted under s. 373.046(4). |
| 252 | (2) The authority of the Northwest Florida Water |
| 253 | Management District to implement this part or to implement any |
| 254 | authority pursuant to delegation by the department shall not be |
| 255 | affected by this section. The rule adoption deadline in s. |
| 256 | 373.414(9) shall not apply to said district. |
| 257 | (3) The division of permitting responsibilities in s. |
| 258 | 373.046(4) shall not apply within the geographical jurisdiction |
| 259 | of the Northwest Florida Water Management District. |
| 260 | (4) If the United States Environmental Protection Agency |
| 261 | approves an assumption of the federal program to regulate the |
| 262 | discharge of dredged or fill material by the department or the |
| 263 | water management districts, or both, pursuant to s. 404 of the |
| 264 | Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. |
| 265 | 1251 et seq.; the United States Army Corps of Engineers issues |
| 266 | one or more state programmatic general permits under the |
| 267 | referenced statutes; or the United States Environmental |
| 268 | Protection Agency or the United States Corps of Engineers |
| 269 | approves any other delegation of regulatory authority under the |
| 270 | referenced statutes, then the department may implement any |
| 271 | permitting authority granted in this part within the Northwest |
| 272 | Florida Water Management District which is prescribed as a |
| 273 | condition of granting such assumption, general permit, or |
| 274 | delegation. |
| 275 | (6) Subsections (1), (2), (3), and (4) shall be repealed |
| 276 | effective July 1, 2010 2005. |
| 277 | Section 5. Subsection (4) of section 10 of chapter 2003- |
| 278 | 423, Laws of Florida, is amended to read: |
| 279 | Section 10. |
| 280 | (4) The resource management plan shall be submitted to the |
| 281 | Governor, the President of the Senate, and the Speaker of the |
| 282 | House of Representatives no later than January 31, 2007 July 1, |
| 283 | 2005. |
| 284 | Section 6. This act shall take effect upon becoming a law. |