HB 7163

1
A bill to be entitled
2An act relating to environmental permitting; amending s.
3373.414, F.S.; limiting local government authority to
4prohibit mitigation of certain wetlands activities;
5prohibiting certain local government resource permitting
6in the Northwest Florida Water Management District;
7reenacting and amending s. 373.4145, F.S.; requiring the
8district and the Department of Environmental Protection to
9jointly develop rules for the regulation of certain
10activities related to stormwater management systems and
11the management and storage of surface waters; requiring
12the district and the department to streamline federal and
13state wetland permitting programs and to implement such
14measures; requiring certain exemptions and provisions for
15rules relating to certain dwellings; requiring the
16department and district to incorporate certain exemptions
17and general permits in joint rules; exempting certain
18activities and structures from permitting requirements;
19requiring the department and the district to enter into an
20operating agreement for the implementation of certain
21provisions; requiring the district to be responsible for
22the regulation and local delegation of certain activities;
23providing for continuing operation of certain earlier law;
24repealing certain provisions upon the adoption of rules;
25providing effect for failure to fund in any given fiscal
26year; providing an appropriation for operational expenses
27of the district; repealing s. 4 of ch. 2005-273, Laws of
28Florida, and s. 32 of ch. 2005-71, Laws of Florida, which
29specified dates certain for the repeal of certain
30provisions relating to permitting in the district;
31providing an effective date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Paragraph (b) of subsection (1) of section
36373.414, Florida Statutes, is amended to read:
37     373.414  Additional criteria for activities in surface
38waters and wetlands.--
39     (1)  As part of an applicant's demonstration that an
40activity regulated under this part will not be harmful to the
41water resources or will not be inconsistent with the overall
42objectives of the district, the governing board or the department
43shall require the applicant to provide reasonable assurance that
44state water quality standards applicable to waters as defined in
45s. 403.031(13) will not be violated and reasonable assurance that
46such activity in, on, or over surface waters or wetlands, as
47delineated in s. 373.421(1), is not contrary to the public
48interest. However, if such an activity significantly degrades or
49is within an Outstanding Florida Water, as provided by department
50rule, the applicant must provide reasonable assurance that the
51proposed activity will be clearly in the public interest.
52     (b)  If the applicant is unable to otherwise meet the
53criteria set forth in this subsection, the governing board or the
54department, in deciding to grant or deny a permit, shall consider
55measures proposed by or acceptable to the applicant to mitigate
56adverse effects that may be caused by the regulated activity.
57Local governments may not adopt or enforce ordinances,
58resolutions, regulations, or policies that prohibit or restrict
59mitigation that offsets wetland construction impacts pursuant to
60this part. Any local government ordinance or regulation intended
61to regulate construction in wetlands or surface waters shall
62consider measures proposed by or acceptable to the applicant to
63mitigate adverse effects that may be caused by the regulated
64activity. Such measures may include, but are not limited to,
65onsite mitigation, offsite mitigation, offsite regional
66mitigation, and the purchase of mitigation credits from
67mitigation banks permitted under s. 373.4136. It shall be the
68responsibility of the applicant to choose the form of mitigation.
69The mitigation must offset the adverse effects caused by the
70regulated activity. Local governments within the geographical
71jurisdiction of the Northwest Florida Water Management District
72shall not adopt or enforce wetland regulatory programs or
73criteria more stringent than or duplicative of the environmental
74resource permitting program enacted pursuant to s. 373.4145(1).
75     1.  The department or water management districts may accept
76the donation of money as mitigation only where the donation is
77specified for use in a duly noticed environmental creation,
78preservation, enhancement, or restoration project, endorsed by
79the department or the governing board of the water management
80district, which offsets the impacts of the activity permitted
81under this part. However, the provisions of this subsection shall
82not apply to projects undertaken pursuant to s. 373.4137 or
83chapter 378. Where a permit is required under this part to
84implement any project endorsed by the department or a water
85management district, all necessary permits must have been issued
86prior to the acceptance of any cash donation. After the effective
87date of this act, when money is donated to either the department
88or a water management district to offset impacts authorized by a
89permit under this part, the department or the water management
90district shall accept only a donation that represents the full
91cost to the department or water management district of
92undertaking the project that is intended to mitigate the adverse
93impacts. The full cost shall include all direct and indirect
94costs, as applicable, such as those for land acquisition, land
95restoration or enhancement, perpetual land management, and
96general overhead consisting of costs such as staff time,
97building, and vehicles. The department or the water management
98district may use a multiplier or percentage to add to other
99direct or indirect costs to estimate general overhead. Mitigation
100credit for such a donation shall be given only to the extent that
101the donation covers the full cost to the agency of undertaking
102the project that is intended to mitigate the adverse impacts.
103However, nothing herein shall be construed to prevent the
104department or a water management district from accepting a
105donation representing a portion of a larger project, provided
106that the donation covers the full cost of that portion and
107mitigation credit is given only for that portion. The department
108or water management district may deviate from the full cost
109requirements of this subparagraph to resolve a proceeding brought
110pursuant to chapter 70 or a claim for inverse condemnation.
111Nothing in this section shall be construed to require the owner
112of a private mitigation bank, permitted under s. 373.4136, to
113include the full cost of a mitigation credit in the price of the
114credit to a purchaser of said credit.
115     2.  The department and each water management district shall
116report by March 1 of each year, as part of the consolidated
117annual report required by s. 373.036(7), all cash donations
118accepted under subparagraph 1. during the preceding water
119management district fiscal year for wetland mitigation purposes.
120The report shall exclude those contributions pursuant to s.
121373.4137. The report shall include a description of the endorsed
122mitigation projects and, except for projects governed by s.
123373.4135(6), shall address, as applicable, success criteria,
124project implementation status and timeframe, monitoring, long-
125term management, provisions for preservation, and full cost
126accounting.
127     3.  If the applicant is unable to meet water quality
128standards because existing ambient water quality does not meet
129standards, the governing board or the department shall consider
130mitigation measures proposed by or acceptable to the applicant
131that cause net improvement of the water quality in the receiving
132body of water for those parameters which do not meet standards.
133     4.  If mitigation requirements imposed by a local government
134for surface water and wetland impacts of an activity regulated
135under this part cannot be reconciled with mitigation requirements
136approved under a permit for the same activity issued under this
137part, including application of the uniform wetland mitigation
138assessment method adopted pursuant to subsection (18), the
139mitigation requirements for surface water and wetland impacts
140shall be controlled by the permit issued under this part.
141     Section 2.  Section 373.4145, Florida Statutes, is reenacted
142and amended to read:
143     373.4145  Interim Part IV permitting program within the
144geographical jurisdiction of for the Northwest Florida Water
145Management District.--
146     (1)  Within the geographical jurisdiction of the Northwest
147Florida Water Management District, taking into consideration the
148differing physical and natural characteristics of the area, the
149department and the district shall the permitting authority of the
150department under this part shall consist solely of the following,
151notwithstanding the rule adoption deadline in s. 373.414(9):
152     (a)  Jointly develop rules to regulate the construction,
153operation, alteration, maintenance, abandonment, and removal of
154stormwater management systems. The department shall adopt the
155rules no later than January 1, 2007; the district may implement
156rules prior to adoption pursuant to s. 120.54. Until the
157stormwater management system rules take effect, chapter 62-25 17-
15825, Florida Administrative Code, shall remain in full force and
159effect, and shall be implemented by the department.
160Notwithstanding the provisions of this section, chapter 62-25 17-
16125, Florida Administrative Code, may be amended by the department
162as necessary to comply with any requirements of state or federal
163laws or regulations, or any condition imposed by a federal
164program, or as a requirement for receipt of federal grant funds.
165The intent of the rules created under this paragraph is to update
166existing stormwater rules, to improve water quality and water
167quality protection, and to apply the least restrictive measures
168and criteria adopted in other water management district rules.
169     (b)  Jointly develop rules for the management and storage of
170surface waters under this part. The department shall adopt the
171rules no later than July 1, 2008; the district may implement
172rules prior to adoption pursuant to s. 120.54. Until the rules
173for the management and storage of surface waters under this part
174take effect, rules adopted pursuant to the authority of ss.
175403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as
176amended, in effect prior to July 1, 1994, shall remain in full
177force and effect, and shall be implemented by the department.
178However, the department is authorized to establish additional
179exemptions and general permits for dredging and filling, if such
180exemptions or general permits do not allow significant adverse
181impacts to occur individually or cumulatively. However, for the
182purpose of chapter 62-312 17-312, Florida Administrative Code,
183the landward extent of surface waters of the state identified in
184rule 62-312.030(2) 17-312.030(2), Florida Administrative Code,
185shall be determined in accordance with the methodology in rules
18662-340.100 through 62-340.600 17-340.100 through 17-340.600,
187Florida Administrative Code, as ratified in s. 373.4211, upon the
188effective date of such ratified methodology. In implementing s.
189373.421(2), the department shall determine the extent of those
190surface waters and wetlands within the regulatory authority of
191the department as described in this paragraph. At the request of
192the petitioner, the department shall also determine the extent of
193surface waters and wetlands that which can be delineated by the
194methodology ratified in s. 373.4211, but that which are not
195subject to the regulatory authority of the department as
196described in this paragraph. The intent of the rules created
197under this paragraph is to improve the management and storage of
198surface waters with minimal impact on property interests and to
199consider the rural nature of the district relative to the
200permitting thresholds and requirements.
201     (c)  Pursue streamlining of the federal and state wetland
202permitting programs pursuant to ss. 373.4143 and 373.4144.
203     (d)  Implement, to the maximum extent possible, streamlining
204measures, including electronic permitting, field permitting, and
205certification programs for activities with minimal individual or
206cumulative impact, informal wetland determinations, and other
207similar measures.
208     (2)(c)  The department may implement chapter 40A-4, Florida
209Administrative Code, in effect prior to July 1, 1994, pursuant to
210an interagency agreement with the Northwest Florida Water
211Management District adopted under s. 373.046(4).
212     (3)  The rules adopted under subsection (1), as applicable,
213shall:
214     (a)  Incorporate the exemptions in ss. 373.406 and
215403.813(2).
216     (b)  Incorporate the provisions of rule 62-341.475(1)(f),
217Florida Administrative Code, applicable to single-family homes
218located entirely or partially within wholly owned, isolated
219wetlands.
220     (c)  Exempt from the notice and permitting requirements of
221this part the construction or private use of a single-family
222dwelling unit, duplex, triplex, or quadruplex that:
223     1.  Is not part of a larger common plan of development or
224sale proposed by the applicant.
225     2.  Does not involve wetlands or other surface waters.
226     (d)  Incorporate the exemptions and general permits that
227have been enacted by rule under s. 373.414(9) by the department
228and other water management districts and the general permits
229authorized by s. 403.814.
230     (e)  Exempt from permitting requirements activities and
231structures that are exempt from permitting in any other water
232management district.
233     (f)  Exempt from permitting requirements the resurfacing or
234paving of unpaved roads.
235     (g)  Exempt from permitting requirements the alteration of
236wholly owned, artificially created surface waters that do not
237connect to any waters of the state.
238     (2)  The authority of the Northwest Florida Water Management
239District to implement this part or to implement any authority
240pursuant to delegation by the department shall not be affected by
241this section. The rule adoption deadline in s. 373.414(9) shall
242not apply to said district.
243     (4)(3)  The department and the division of permitting
244responsibilities in s. 373.046(4) shall not apply within the
245geographical jurisdiction of the Northwest Florida Water
246Management District shall enter into an operating agreement under
247s. 373.046 to effectively implement this section and provide the
248district with the amount of responsibility under the agreement
249that resources allow, including, at a minimum, the responsibility
250for regulating silviculture and agriculture. The operating
251agreement shall encourage local delegation of the
252responsibilities under this section pursuant to s. 373.441.
253     (5)  The provisions of s. 373.414(11)-(14) shall not apply
254to rules adopted under this section.
255     (6)  The following activities shall continue to be governed
256by the provisions of s. 373.4145, Florida Statutes 1994:
257     (a)  The operation and routine custodial maintenance of
258activities legally in existence before the effective date of the
259rules adopted under subsection (1), as long as the terms and
260conditions of the permit, exemption, or other authorization for
261such activities continue to be met.
262     (b)  The activities approved in a permit issued pursuant to
263s. 373.4145, Florida Statutes 1994, and the review of activities
264proposed in applications received before the effective date of
265the rules adopted under subsection (1), as applicable. This
266paragraph shall also apply to any modification of the plans,
267terms, and conditions of a permit issued pursuant to s. 373.4145,
268Florida Statutes 1994, that lessens the environmental impact,
269except that any such modification shall not extend the time limit
270for construction beyond 2 additional years.
271
272This subsection shall not apply to any activity that is altered,
273modified, expanded, abandoned, or removed after adoption of the
274applicable rules under subsection (1).
275     (7)  Unless the petitioner elects to apply rule 62-340,
276Florida Administrative Code, to all wetlands, the delineation of
277the landward extent of wetlands and other surface waters for
278petitions filed under s. 373.421(2) prior to the effective date
279of the rules adopted under paragraph (1)(b) shall continue to be
280determined in accordance with rule 62-312.030(2), Florida
281Administrative Code, in effect July 1, 1994, and rules 62-340.100
282through 62-340.600, Florida Administrative Code, as ratified in
283s. 373.4211.
284     (4)  If the United States Environmental Protection Agency
285approves an assumption of the federal program to regulate the
286discharge of dredged or fill material by the department or the
287water management districts, or both, pursuant to s. 404 of the
288Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
2891251 et seq.; the United States Army Corps of Engineers issues
290one or more state programmatic general permits under the
291referenced statutes; or the United States Environmental
292Protection Agency or the United States Corps of Engineers
293approves any other delegation of regulatory authority under the
294referenced statutes, then the department may implement any
295permitting authority granted in this part within the Northwest
296Florida Water Management District which is prescribed as a
297condition of granting such assumption, general permit, or
298delegation.
299     (8)(5)  Within the geographical jurisdiction of the
300Northwest Florida Water Management District, the methodology for
301determining the landward extent of surface waters of the state
302under chapter 403 in effect prior to the effective date of the
303methodology ratified in s. 373.4211 shall apply to:
304     (a)  Activities permitted under the rules adopted pursuant
305to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes
3061983, as amended, or that which were exempted from regulation
307under such rules, prior to July 1, 1994, and that which were
308permitted under chapter 62-25 17-25, Florida Administrative Code,
309or exempt from chapter 62-25 17-25, Florida Administrative Code,
310prior to July 1, 1994, provided:
311     1.  An activity authorized by such permits is conducted in
312accordance with the plans, terms, and conditions of such permits.
313     2.  An activity exempted from the permitting requirements of
314the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement
315to the Florida Statutes 1983, as amended, or chapter 62-25 17-25,
316Florida Administrative Code, is:
317     a.  Commenced prior to July 1, 1994, and completed by July
3181, 1999;
319     b.  Conducted in accordance with a plan depicting the
320activity that which has been submitted to and approved for
321construction by the department, the appropriate local government,
322the United States Army Corps of Engineers, or the Northwest
323Florida Water Management District; and
324     c.  Conducted in accordance with the terms of the exemption.
325     (b)  An activity within the boundaries of a valid
326jurisdictional declaratory statement issued pursuant to s.
327403.914, 1984 Supplement to the Florida Statutes 1983, as
328amended, or the rules adopted thereunder, in response to a
329petition received prior to June 1, 1994.
330     (c)  Any modification of a permitted or exempt activity as
331described in paragraph (a) that which does not constitute a
332substantial modification or that which lessens the environmental
333impact of such permitted or exempt activity. For the purposes of
334this section, a substantial modification is one that which is
335reasonably expected to lead to substantially different
336environmental impacts.
337     (d)  Applications for activities permitted under the rules
338adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the
3391983 Florida Statutes, as amended, that which were pending on
340June 15, 1994, unless the application elects to have applied the
341delineation methodology ratified in s. 373.4211.
342     (9)  Subsections (2) and (8) are repealed on the effective
343date of the rules adopted under subsection (1).
344     (10)  In the event that the Legislature in any given fiscal
345year fails to fund and staff the environmental resource
346permitting program established under this section, the
347environmental resource permitting program shall be suspended for
348that fiscal year and the rules and statutes governing development
349activity in the district shall revert to those in effect on April
3501, 2006, until such time as funding and staffing levels are
351restored consistent with this section.
352     (6)  Subsections (1), (2), (3), and (4) shall be repealed
353effective July 1, 2006.
354     Section 3.  The sum of $2,740,000 is appropriated from the
355Water Management Lands Trust Fund to the Department of
356Environmental Protection for the 2006-2007 fiscal year for the
357operational expenditures of the Northwest Florida Water
358Management District pursuant to s. 373.4145, Florida Statutes, as
359amended by this act.
360     Section 4.  Section 4 of chapter 2005-273, Laws of Florida,
361and section 32 of chapter 2005-71, Laws of Florida, are repealed.
362     Section 5.  This act shall take effect July 1, 2006.


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