HB 759

A bill to be entitled
2An act relating to environmental permitting programs;
3amending s. 373.414, F.S., relating to additional criteria
4for activities in surface waters and wetlands; revising a
5date relating to an exemption from specified requirements;
6providing for submission of financial responsibility prior
7to the commencement of phosphate mining operations;
8providing for review of financial responsibility;
9providing mechanisms for providing financial
10responsibility; providing exclusions; clarifying intent;
11creating s. 373.4143, F.S.; providing legislative intent;
12creating s. 373.4144, F.S.; providing for the
13consolidation of federal and state wetland permitting
14programs; providing duties of the Department of
15Environmental Protection; requiring a report to the
16Legislature and coordination with the Florida
17Congressional Delegation; amending s. 373.4145, F.S., and
18reenacting subsections (1)-(4), to continue the interim
19part IV permitting program for the Northwest Florida Water
20Management District; providing for future repeal of such
21interim program; amending s. 10, ch. 2003-423, Laws of
22Florida; revising the date by which the Peace River Basin
23resource management plan must be submitted; providing an
24effective date.
26     WHEREAS, the Legislature recognizes that consolidation of
27existing federal and state permitting associated with wetlands
28and navigable waters is in the public interest by eliminating
29unnecessary duplication and reducing subjective and potentially
30inconsistent permitting decisions, and
31     WHEREAS, the Legislature further recognizes that
32consolidation of federal and state wetland and navigable waters
33permitting would reduce the substantial costs to both public and
34private sectors, provide a more efficient delivery of government
35services, and avoid protracted processing delays while
36maintaining the federal and state protection afforded to
37Florida's natural resources, NOW, THEREFORE,
39Be It Enacted by the Legislature of the State of Florida:
41     Section 1.  Subsection (13) of section 373.414, Florida
42Statutes, is amended, and subsection (19) is added to said
43section, to read:
44     373.414  Additional criteria for activities in surface
45waters and wetlands.--
46     (13)  Any declaratory statement issued by the department
47under s. 403.914, 1984 Supplement to the Florida Statutes 1983,
48as amended, or pursuant to rules adopted thereunder, or by a
49water management district under s. 373.421, in response to a
50petition filed on or before June 1, 1994, shall continue to be
51valid for the duration of such declaratory statement. Any such
52petition pending on June 1, 1994, shall be exempt from the
53methodology ratified in s. 373.4211, but the rules of the
54department or the relevant water management district, as
55applicable, in effect prior to the effective date of s.
56373.4211, shall apply. Until May 1, 1998, activities within the
57boundaries of an area subject to a petition pending on June 1,
581994, and prior to final agency action on such petition, shall
59be reviewed under the rules adopted pursuant to ss. 403.91-
60403.929, 1984 Supplement to the Florida Statutes 1983, as
61amended, and this part, in existence prior to the effective date
62of the rules adopted under subsection (9), unless the applicant
63elects to have such activities reviewed under the rules adopted
64under this part, as amended in accordance with subsection (9).
65In the event that a jurisdictional declaratory statement
66pursuant to the vegetative index in effect prior to the
67effective date of chapter 84-79, Laws of Florida, has been
68obtained and is valid prior to the effective date of the rules
69adopted under subsection (9) or July 1, 1994, whichever is
70later, and the affected lands are part of a project for which a
71master development order has been issued pursuant to s.
72380.06(21), the declaratory statement shall remain valid for the
73duration of the buildout period of the project. Any
74jurisdictional determination validated by the department
75pursuant to rule 17-301.400(8), Florida Administrative Code, as
76it existed in rule 17-4.022, Florida Administrative Code, on
77April 1, 1985, shall remain in effect for a period of 5 years
78following the effective date of this act if proof of such
79validation is submitted to the department prior to January 1,
801995. In the event that a jurisdictional determination has been
81revalidated by the department pursuant to this subsection and
82the affected lands are part of a project for which a development
83order has been issued pursuant to s. 380.06(15), a final
84development order to which s. 163.3167(8) applies has been
85issued, or a vested rights determination has been issued
86pursuant to s. 380.06(20), the jurisdictional determination
87shall remain valid until the completion of the project, provided
88proof of such validation and documentation establishing that the
89project meets the requirements of this sentence are submitted to
90the department prior to January 1, 1995. Activities proposed
91within the boundaries of a valid declaratory statement issued
92pursuant to a petition submitted to either the department or the
93relevant water management district on or before prior to June 1,
941994, or a revalidated jurisdictional determination, prior to
95its expiration shall continue thereafter to be exempt from the
96methodology ratified in s. 373.4211 and to be reviewed under the
97rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to
98the Florida Statutes 1983, as amended, and this part, in
99existence prior to the effective date of the rules adopted under
100subsection (9), unless the applicant elects to have such
101activities reviewed under the rules adopted under this part, as
102amended in accordance with subsection (9).
103     (19)(a)  Financial responsibility for mitigation for
104wetlands and other surface waters required by a permit issued
105pursuant to this part for activities associated with the
106extraction of phosphate are subject to approval by the
107department as part of permit application review. Financial
108responsibility for permitted activities which will occur over a
109period of 3 years or less of mining operations must be provided
110to the department prior to the commencement of mining operations
111and shall be in an amount equal to 110 percent of the estimated
112mitigation costs for wetlands and other surface waters affected
113under the permit. For permitted activities which will occur over
114a period of more than 3 years of mining operations, the initial
115financial responsibility demonstration shall be in an amount
116equal to 110 percent of the estimated mitigation costs for
117wetlands and other surface waters affected in the first 3 years
118of operation under the permit; and, for each year thereafter,
119the financial responsibility demonstration shall be updated,
120including to provide an amount equal to 110 percent of the
121estimated mitigation costs for the next year of operations under
122the permit for which financial responsibility has not already
123been demonstrated and to release portions of the financial
124responsibility mechanisms in accordance with applicable rules.
125     (b)  The mechanisms for providing financial responsibility
126pursuant to the permit shall, at the discretion of the
127applicant, include the following:
128     1.  Cash or cash equivalent deposited in an escrow account.
129     2.  Irrevocable letter of credit.
130     3.  Performance bond.
131     4.  Trust fund agreement.
132     5.  Guarantee bond.
133     6.  Insurance certificate.
134     7.  A demonstration that the applicant meets the financial
135test and corporate guarantee requirements set forth in 40 C.F.R.
136s. 264.143(f).
137     8.  A demonstration that the applicant meets the self-
138bonding provision set forth in 30 C.F.R. s. 800.23.
140The form and content of all financial responsibility mechanisms
141shall be approved by the department. When utilizing an
142irrevocable letter of credit, performance bond, or guarantee
143bond, all payments made thereunder shall be deposited into a
144stand-by trust fund established contemporaneously with the
145posting of the financial assurance instrument. All trust fund
146agreements and stand-by trust fund agreements shall provide that
147distributions therefrom will be made only at the request of the
148department and that the trustees of such funds shall be either a
149National or state chartered banking institution or a state-
150regulated trust company.
151     (c)  The provisions of this subsection shall not apply to
152any mitigation for wetlands and other surface waters that is
153required pursuant to a permit or permits initially issued by the
154department or district prior to January 1, 2005.
155     (d)  Nothing provided in this subsection supersedes or
156modifies the financial responsibility requirements of s.
158     Section 2.  Section 373.4143, Florida Statutes, is created
159to read:
160     373.4143  Declaration of policy.--It is the policy of the
161Legislature that the state provide efficient government services
162by consolidating, to the maximum extent practicable, federal and
163state permitting associated with wetlands and navigable waters
164within the state.
165     Section 3.  Section 373.4144, Florida Statutes, is created
166to read:
167     373.4144  Federal environmental permitting.--
168     (1)  The department is directed to develop, on or before
169October 1, 2005, a mechanism or plan to consolidate, to the
170maximum extent practicable, the federal and state wetland
171permitting programs. It is the intent of the Legislature that
172all dredge and fill activities impacting 10 acres or less of
173wetlands or waters, including navigable waters, be processed by
174the state as part of the environmental resource permitting
175program implemented by the department and the water management
176districts. The resulting mechanism or plan shall analyze and
177propose the development of an expanded state programmatic
178general permit program in conjunction with the United States
179Army Corps of Engineers pursuant to s. 404 of the Clean Water
180Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq.,
181and s. 10 of the Rivers and Harbors Act of 1899. Alternatively,
182or in combination with an expanded state programmatic general
183permit, the mechanism or plan may propose the creation of a
184series of regional general permits issued by the United States
185Army Corps of Engineers pursuant to the referenced statutes. All
186of the regional general permits must be administered by the
187department or the water management districts or their designees.
188     (2)  The department is directed to file with the Speaker of
189the House of Representatives and the President of the Senate a
190report proposing any required federal and state statutory
191changes that would be necessary to accomplish the directives
192listed in this section and to coordinate with the Florida
193Congressional Delegation on any necessary changes to federal law
194to implement the directives.
195     (3)  Nothing in this section shall be construed to preclude
196the department from pursuing complete assumption of federal
197permitting programs regulating the discharge of dredged or fill
198material pursuant to s. 404 of the Clean Water Act, Pub. L. No.
19992-500, as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the
200Rivers and Harbors Act of 1899, so long as the assumption
201encompasses all dredge and fill activities in, on, or over
202jurisdictional wetlands or waters, including navigable waters,
203within the state.
204     Section 4.  Notwithstanding the repeal of subsections (1),
205(2), (3), and (4) of section 373.4145, Florida Statutes,
206scheduled for July 1, 2005, said subsections are reenacted, and
207subsection (6) of said section is amended, to read:
208     373.4145  Interim part IV permitting program for the
209Northwest Florida Water Management District.--
210     (1)  Within the geographical jurisdiction of the Northwest
211Florida Water Management District, the permitting authority of
212the department under this part shall consist solely of the
213following, notwithstanding the rule adoption deadline in s.
215     (a)  Chapter 17-25, Florida Administrative Code, shall
216remain in full force and effect, and shall be implemented by the
217department. Notwithstanding the provisions of this section,
218chapter 17-25, Florida Administrative Code, may be amended by
219the department as necessary to comply with any requirements of
220state or federal laws or regulations, or any condition imposed
221by a federal program, or as a requirement for receipt of federal
222grant funds.
223     (b)  Rules adopted pursuant to the authority of ss. 403.91-
224403.929, 1984 Supplement to the Florida Statutes 1983, as
225amended, in effect prior to July 1, 1994, shall remain in full
226force and effect, and shall be implemented by the department.
227However, the department is authorized to establish additional
228exemptions and general permits for dredging and filling, if such
229exemptions or general permits do not allow significant adverse
230impacts to occur individually or cumulatively. However, for the
231purpose of chapter 17-312, Florida Administrative Code, the
232landward extent of surface waters of the state identified in
233rule 17-312.030(2), Florida Administrative Code, shall be
234determined in accordance with the methodology in rules 17-
235340.100 through 17-340.600, Florida Administrative Code, as
236ratified in s. 373.4211, upon the effective date of such
237ratified methodology. In implementing s. 373.421(2), the
238department shall determine the extent of those surface waters
239and wetlands within the regulatory authority of the department
240as described in this paragraph. At the request of the
241petitioner, the department shall also determine the extent of
242surface waters and wetlands which can be delineated by the
243methodology ratified in s. 373.4211, but which are not subject
244to the regulatory authority of the department as described in
245this paragraph.
246     (c)  The department may implement chapter 40A-4, Florida
247Administrative Code, in effect prior to July 1, 1994, pursuant
248to an interagency agreement with the Northwest Florida Water
249Management District adopted under s. 373.046(4).
250     (2)  The authority of the Northwest Florida Water
251Management District to implement this part or to implement any
252authority pursuant to delegation by the department shall not be
253affected by this section. The rule adoption deadline in s.
254373.414(9) shall not apply to said district.
255     (3)  The division of permitting responsibilities in s.
256373.046(4) shall not apply within the geographical jurisdiction
257of the Northwest Florida Water Management District.
258     (4)  If the United States Environmental Protection Agency
259approves an assumption of the federal program to regulate the
260discharge of dredged or fill material by the department or the
261water management districts, or both, pursuant to s. 404 of the
262Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
2631251 et seq.; the United States Army Corps of Engineers issues
264one or more state programmatic general permits under the
265referenced statutes; or the United States Environmental
266Protection Agency or the United States Corps of Engineers
267approves any other delegation of regulatory authority under the
268referenced statutes, then the department may implement any
269permitting authority granted in this part within the Northwest
270Florida Water Management District which is prescribed as a
271condition of granting such assumption, general permit, or
273     (6)  Subsections (1), (2), (3), and (4) shall be repealed
274effective July 1, 2010 2005.
275     Section 5.  Subsection (4) of section 10 of chapter 2003-
276423, Laws of Florida, is amended to read:
277     Section 10.
278     (4)  The resource management plan shall be submitted to the
279Governor, the President of the Senate, and the Speaker of the
280House of Representatives no later than January 31, 2007 July 1,
282     Section 6.  This act shall take effect upon becoming a law.

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