HB 7163

CS

CHAMBER ACTION

1	The Agriculture & Environment Appropriations Committee
2	recommends the following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to environmental permitting; amending s.
8	373.414, F.S.; limiting local government authority to
9	prohibit mitigation of certain wetlands activities;
10	prohibiting certain local government resource permitting
11	in the Northwest Florida Water Management District;
12	reenacting and amending s. 373.4145, F.S.; requiring the
13	district and the Department of Environmental Protection to
14	jointly develop rules for the regulation of certain
15	activities related to stormwater management systems and
16	the management and storage of surface waters; requiring
17	the district and the department to streamline federal and
18	state wetland permitting programs and to implement such
19	measures; requiring certain exemptions and provisions for
20	rules relating to certain dwellings; requiring the
21	department and district to incorporate certain exemptions
22	and general permits in joint rules; exempting certain
23	activities and structures from permitting requirements;
24	requiring the department and the district to enter into an
25	operating agreement for the implementation of certain
26	provisions; requiring the district to be responsible for
27	the regulation and local delegation of certain activities;
28	providing for continuing operation of certain earlier law;
29	repealing certain provisions upon the adoption of rules;
30	providing effect for failure to fund in any given fiscal
31	year; providing an appropriation for operational expenses
32	of the district; repealing s. 4 of ch. 2005-273, Laws of
33	Florida, and s. 32 of ch. 2005-71, Laws of Florida, which
34	specified dates certain for the repeal of certain
35	provisions relating to permitting in the district;
36	providing an effective date.
37
38	Be It Enacted by the Legislature of the State of Florida:
39
40	Section 1.  Paragraph (b) of subsection (1) of section
41	373.414, Florida Statutes, is amended to read:
42	373.414  Additional criteria for activities in surface
43	waters and wetlands.--
44	(1)  As part of an applicant's demonstration that an
45	activity regulated under this part will not be harmful to the
46	water resources or will not be inconsistent with the overall
47	objectives of the district, the governing board or the
48	department shall require the applicant to provide reasonable
49	assurance that state water quality standards applicable to
50	waters as defined in s. 403.031(13) will not be violated and
51	reasonable assurance that such activity in, on, or over surface
52	waters or wetlands, as delineated in s. 373.421(1), is not
53	contrary to the public interest. However, if such an activity
54	significantly degrades or is within an Outstanding Florida
55	Water, as provided by department rule, the applicant must
56	provide reasonable assurance that the proposed activity will be
57	clearly in the public interest.
58	(b)  If the applicant is unable to otherwise meet the
59	criteria set forth in this subsection, the governing board or
60	the department, in deciding to grant or deny a permit, shall
61	consider measures proposed by or acceptable to the applicant to
62	mitigate adverse effects that may be caused by the regulated
63	activity. Local governments may not adopt or enforce ordinances,
64	resolutions, regulations, or policies that prohibit or restrict
65	mitigation that offsets wetland construction impacts pursuant to
66	this part. Any local government ordinance or regulation intended
67	to regulate construction in wetlands or surface waters shall
68	consider measures proposed by or acceptable to the applicant to
69	mitigate adverse effects that may be caused by the regulated
70	activity. Such measures may include, but are not limited to,
71	onsite mitigation, offsite mitigation, offsite regional
72	mitigation, and the purchase of mitigation credits from
73	mitigation banks permitted under s. 373.4136. It shall be the
74	responsibility of the applicant to choose the form of
75	mitigation. The mitigation must offset the adverse effects
76	caused by the regulated activity. Local governments within the
77	geographical jurisdiction of the Northwest Florida Water
78	Management District shall not adopt or enforce wetland
79	regulatory programs or criteria more stringent than or
80	duplicative of the environmental resource permitting program
81	enacted pursuant to s. 373.4145(1).
82	1.  The department or water management districts may accept
83	the donation of money as mitigation only where the donation is
84	specified for use in a duly noticed environmental creation,
85	preservation, enhancement, or restoration project, endorsed by
86	the department or the governing board of the water management
87	district, which offsets the impacts of the activity permitted
88	under this part. However, the provisions of this subsection
89	shall not apply to projects undertaken pursuant to s. 373.4137
90	or chapter 378. Where a permit is required under this part to
91	implement any project endorsed by the department or a water
92	management district, all necessary permits must have been issued
93	prior to the acceptance of any cash donation. After the
94	effective date of this act, when money is donated to either the
95	department or a water management district to offset impacts
96	authorized by a permit under this part, the department or the
97	water management district shall accept only a donation that
98	represents the full cost to the department or water management
99	district of undertaking the project that is intended to mitigate
100	the adverse impacts. The full cost shall include all direct and
101	indirect costs, as applicable, such as those for land
102	acquisition, land restoration or enhancement, perpetual land
103	management, and general overhead consisting of costs such as
104	staff time, building, and vehicles. The department or the water
105	management district may use a multiplier or percentage to add to
106	other direct or indirect costs to estimate general overhead.
107	Mitigation credit for such a donation shall be given only to the
108	extent that the donation covers the full cost to the agency of
109	undertaking the project that is intended to mitigate the adverse
110	impacts. However, nothing herein shall be construed to prevent
111	the department or a water management district from accepting a
112	donation representing a portion of a larger project, provided
113	that the donation covers the full cost of that portion and
114	mitigation credit is given only for that portion. The department
115	or water management district may deviate from the full cost
116	requirements of this subparagraph to resolve a proceeding
117	brought pursuant to chapter 70 or a claim for inverse
118	condemnation. Nothing in this section shall be construed to
119	require the owner of a private mitigation bank, permitted under
120	s. 373.4136, to include the full cost of a mitigation credit in
121	the price of the credit to a purchaser of said credit.
122	2.  The department and each water management district shall
123	report by March 1 of each year, as part of the consolidated
124	annual report required by s. 373.036(7), all cash donations
125	accepted under subparagraph 1. during the preceding water
126	management district fiscal year for wetland mitigation purposes.
127	The report shall exclude those contributions pursuant to s.
128	373.4137. The report shall include a description of the endorsed
129	mitigation projects and, except for projects governed by s.
130	373.4135(6), shall address, as applicable, success criteria,
131	project implementation status and timeframe, monitoring, long-
132	term management, provisions for preservation, and full cost
133	accounting.
134	3.  If the applicant is unable to meet water quality
135	standards because existing ambient water quality does not meet
136	standards, the governing board or the department shall consider
137	mitigation measures proposed by or acceptable to the applicant
138	that cause net improvement of the water quality in the receiving
139	body of water for those parameters which do not meet standards.
140	4.  If mitigation requirements imposed by a local
141	government for surface water and wetland impacts of an activity
142	regulated under this part cannot be reconciled with mitigation
143	requirements approved under a permit for the same activity
144	issued under this part, including application of the uniform
145	wetland mitigation assessment method adopted pursuant to
146	subsection (18), the mitigation requirements for surface water
147	and wetland impacts shall be controlled by the permit issued
148	under this part.
149	Section 2.  Section 373.4145, Florida Statutes, is
150	reenacted and amended to read:
151	373.4145  Interim Part IV permitting program within the
152	geographical jurisdiction of for the Northwest Florida Water
153	Management District.--
154	(1)  Within the geographical jurisdiction of the Northwest
155	Florida Water Management District, taking into consideration the
156	differing physical and natural characteristics of the area, the
157	department and the district shall the permitting authority of
158	the department under this part shall consist solely of the
159	following, notwithstanding the rule adoption deadline in s.
160	373.414(9):
161	(a)  Jointly develop rules to regulate the construction,
162	operation, alteration, maintenance, abandonment, and removal of
163	stormwater management systems. The department shall adopt the
164	rules no later than January 1, 2007; the district may implement
165	rules prior to adoption pursuant to s. 120.54. Until the
166	stormwater management system rules take effect, chapter 62-25
167	17-25, Florida Administrative Code, shall remain in full force
168	and effect, and shall be implemented by the department.
169	Notwithstanding the provisions of this section, chapter 62-25
170	17-25, Florida Administrative Code, may be amended by the
171	department as necessary to comply with any requirements of state
172	or federal laws or regulations, or any condition imposed by a
173	federal program, or as a requirement for receipt of federal
174	grant funds. The intent of the rules created under this
175	paragraph is to update existing stormwater rules, to improve
176	water quality and water quality protection, and to apply the
177	least restrictive measures and criteria adopted in other water
178	management district rules.
179	(b)  Jointly develop rules for the management and storage
180	of surface waters under this part. The department shall adopt
181	the rules no later than July 1, 2008; the district may implement
182	rules prior to adoption pursuant to s. 120.54. Until the rules
183	for the management and storage of surface waters under this part
184	take effect, rules adopted pursuant to the authority of ss.
185	403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as
186	amended, in effect prior to July 1, 1994, shall remain in full
187	force and effect, and shall be implemented by the department.
188	However, the department is authorized to establish additional
189	exemptions and general permits for dredging and filling, if such
190	exemptions or general permits do not allow significant adverse
191	impacts to occur individually or cumulatively. However, for the
192	purpose of chapter 62-312 17-312, Florida Administrative Code,
193	the landward extent of surface waters of the state identified in
194	rule 62-312.030(2) 17-312.030(2), Florida Administrative Code,
195	shall be determined in accordance with the methodology in rules
196	62-340.100 through 62-340.600 17-340.100 through 17-340.600,
197	Florida Administrative Code, as ratified in s. 373.4211, upon
198	the effective date of such ratified methodology. In implementing
199	s. 373.421(2), the department shall determine the extent of
200	those surface waters and wetlands within the regulatory
201	authority of the department as described in this paragraph. At
202	the request of the petitioner, the department shall also
203	determine the extent of surface waters and wetlands that which
204	can be delineated by the methodology ratified in s. 373.4211,
205	but that which are not subject to the regulatory authority of
206	the department as described in this paragraph. The intent of the
207	rules created under this paragraph is to improve the management
208	and storage of surface waters with minimal impact on property
209	interests and to consider the rural nature of the district
210	relative to the permitting thresholds and requirements.
211	(c)  Pursue streamlining of the federal and state wetland
212	permitting programs pursuant to ss. 373.4143 and 373.4144.
213	(d)  Implement, to the maximum extent possible,
214	streamlining measures, including electronic permitting, field
215	permitting, and certification programs for activities with
216	minimal individual or cumulative impact, informal wetland
217	determinations, and other similar measures.
218	(2)(c)  The department may implement chapter 40A-4, Florida
219	Administrative Code, in effect prior to July 1, 1994, pursuant
220	to an interagency agreement with the Northwest Florida Water
221	Management District adopted under s. 373.046(4).
222	(3)  The rules adopted under subsection (1), as applicable,
223	shall:
224	(a)  Incorporate the exemptions in ss. 373.406 and
225	403.813(2).
226	(b)  Incorporate the provisions of rule 62-341.475(1)(f),
227	Florida Administrative Code, applicable to single-family homes
228	located entirely or partially within wholly owned, isolated
229	wetlands.
230	(c)  Exempt from the notice and permitting requirements of
231	this part the construction or private use of a single-family
232	dwelling unit, duplex, triplex, or quadruplex that:
233	1.  Is not part of a larger common plan of development or
234	sale proposed by the applicant.
235	2.  Does not involve wetlands or other surface waters.
236	(d)  Incorporate the exemptions and general permits that
237	have been enacted by rule under s. 373.414(9) by the department
238	and other water management districts and the general permits
239	authorized by s. 403.814.
240	(e)  Exempt from permitting requirements activities and
241	structures that are exempt from permitting in any other water
242	management district.
243	(f)  Exempt from permitting requirements the resurfacing or
244	paving of unpaved roads.
245	(g)  Exempt from permitting requirements the alteration of
246	wholly owned, artificially created surface waters that do not
247	connect to any waters of the state.
248	(2)  The authority of the Northwest Florida Water
249	Management District to implement this part or to implement any
250	authority pursuant to delegation by the department shall not be
251	affected by this section. The rule adoption deadline in s.
252	373.414(9) shall not apply to said district.
253	(4)(3)  The department and the division of permitting
254	responsibilities in s. 373.046(4) shall not apply within the
255	geographical jurisdiction of the Northwest Florida Water
256	Management District shall enter into an operating agreement
257	under s. 373.046 to effectively implement this section and
258	provide the district with the amount of responsibility under the
259	agreement that resources allow, including, at a minimum, the
260	responsibility for regulating silviculture and agriculture. The
261	operating agreement shall encourage local delegation of the
262	responsibilities under this section pursuant to s. 373.441.
263	(5)  The provisions of s. 373.414(11)-(14) shall not apply
264	to rules adopted under this section.
265	(6)  The following activities shall continue to be governed
266	by the provisions of s. 373.4145, Florida Statutes 1994:
267	(a)  The operation and routine custodial maintenance of
268	activities legally in existence before the effective date of the
269	rules adopted under subsection (1), as long as the terms and
270	conditions of the permit, exemption, or other authorization for
271	such activities continue to be met.
272	(b)  The activities approved in a permit issued pursuant to
273	s. 373.4145, Florida Statutes 1994, and the review of activities
274	proposed in applications received before the effective date of
275	the rules adopted under subsection (1), as applicable. This
276	paragraph shall also apply to any modification of the plans,
277	terms, and conditions of a permit issued pursuant to s.
278	373.4145, Florida Statutes 1994, that lessens the environmental
279	impact, except that any such modification shall not extend the
280	time limit for construction beyond 2 additional years.
281
282	This subsection shall not apply to any activity that is altered,
283	modified, expanded, abandoned, or removed after adoption of the
284	applicable rules under subsection (1).
285	(7)  Unless the petitioner elects to apply rule 62-340,
286	Florida Administrative Code, to all wetlands, the delineation of
287	the landward extent of wetlands and other surface waters for
288	petitions filed under s. 373.421(2) prior to the effective date
289	of the rules adopted under paragraph (1)(b) shall continue to be
290	determined in accordance with rule 62-312.030(2), Florida
291	Administrative Code, in effect July 1, 1994, and rules 62-
292	340.100 through 62-340.600, Florida Administrative Code, as
293	ratified in s. 373.4211.
294	(4)  If the United States Environmental Protection Agency
295	approves an assumption of the federal program to regulate the
296	discharge of dredged or fill material by the department or the
297	water management districts, or both, pursuant to s. 404 of the
298	Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
299	1251 et seq.; the United States Army Corps of Engineers issues
300	one or more state programmatic general permits under the
301	referenced statutes; or the United States Environmental
302	Protection Agency or the United States Corps of Engineers
303	approves any other delegation of regulatory authority under the
304	referenced statutes, then the department may implement any
305	permitting authority granted in this part within the Northwest
306	Florida Water Management District which is prescribed as a
307	condition of granting such assumption, general permit, or
308	delegation.
309	(8)(5)  Within the geographical jurisdiction of the
310	Northwest Florida Water Management District, the methodology for
311	determining the landward extent of surface waters of the state
312	under chapter 403 in effect prior to the effective date of the
313	methodology ratified in s. 373.4211 shall apply to:
314	(a)  Activities permitted under the rules adopted pursuant
315	to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes
316	1983, as amended, or that which were exempted from regulation
317	under such rules, prior to July 1, 1994, and that which were
318	permitted under chapter 62-25 17-25, Florida Administrative
319	Code, or exempt from chapter 62-25 17-25, Florida Administrative
320	Code, prior to July 1, 1994, provided:
321	1.  An activity authorized by such permits is conducted in
322	accordance with the plans, terms, and conditions of such
323	permits.
324	2.  An activity exempted from the permitting requirements
325	of the rules adopted pursuant to ss. 403.91-403.929, 1984
326	Supplement to the Florida Statutes 1983, as amended, or chapter
327	62-25 17-25, Florida Administrative Code, is:
328	a.  Commenced prior to July 1, 1994, and completed by July
329	1, 1999;
330	b.  Conducted in accordance with a plan depicting the
331	activity that which has been submitted to and approved for
332	construction by the department, the appropriate local
333	government, the United States Army Corps of Engineers, or the
334	Northwest Florida Water Management District; and
335	c.  Conducted in accordance with the terms of the
336	exemption.
337	(b)  An activity within the boundaries of a valid
338	jurisdictional declaratory statement issued pursuant to s.
339	403.914, 1984 Supplement to the Florida Statutes 1983, as
340	amended, or the rules adopted thereunder, in response to a
341	petition received prior to June 1, 1994.
342	(c)  Any modification of a permitted or exempt activity as
343	described in paragraph (a) that which does not constitute a
344	substantial modification or that which lessens the environmental
345	impact of such permitted or exempt activity. For the purposes of
346	this section, a substantial modification is one that which is
347	reasonably expected to lead to substantially different
348	environmental impacts.
349	(d)  Applications for activities permitted under the rules
350	adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the
351	1983 Florida Statutes, as amended, that which were pending on
352	June 15, 1994, unless the application elects to have applied the
353	delineation methodology ratified in s. 373.4211.
354	(9)  Subsections (2) and (8) are repealed on the effective
355	date of the rules adopted under subsection (1).
356	(10)  In the event that the Legislature in any given fiscal
357	year fails to fund and staff the environmental resource
358	permitting program established under this section, the
359	environmental resource permitting program shall be suspended for
360	that fiscal year and the rules and statutes governing
361	development activity in the district shall revert to those in
362	effect on April 1, 2006, until such time as funding and staffing
363	levels are restored consistent with this section.
364	(6)  Subsections (1), (2), (3), and (4) shall be repealed
365	effective July 1, 2006.
366	Section 3.  The sum of $2,740,000 is appropriated from the
367	General Revenue Fund to the Department of Environmental
368	Protection for the 2006-2007 fiscal year for the operational
369	expenditures of the Northwest Florida Water Management District
370	pursuant to s. 373.4145, Florida Statutes, as amended by this
371	act.
372	Section 4.  Section 4 of chapter 2005-273, Laws of Florida,
373	and section 32 of chapter 2005-71, Laws of Florida, are
374	repealed.
375	Section 5.  This act shall take effect July 1, 2006.

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