Senate Bill sb2082

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    Florida Senate - 2007                                  SB 2082

    By Senator Bennett





    21-1507-07

  1                      A bill to be entitled

  2         An act relating to permitting of activities

  3         that affect wetlands; amending s. 373.4144,

  4         F.S.; removing provisions requiring the

  5         Department of Environmental Protection to

  6         develop a mechanism consolidating federal and

  7         state wetland permitting programs; providing

  8         legislative intent to facilitate coordination

  9         of certain wetland permitting activities of the

10         department, water management districts, and the

11         federal government by authorizing the

12         department to secure issuance of a state

13         programmatic permit or a series of regional

14         programmatic permits by the United States Army

15         Corps of Engineers; specifying conditions

16         applicable to such a permit; requiring the

17         department to provide an annual report to the

18         Legislature concerning efforts to secure the

19         state programmatic general permit or one or

20         more regional general permits; requiring the

21         department and the water management districts

22         to implement, subject to approval by the United

23         States Army Corps of Engineers, a voluntary

24         statewide programmatic general permit for

25         dredge and fill activities that affect certain

26         wetlands or surface waters; specifying

27         conditions applicable to such a permit;

28         requiring that the department and the districts

29         equate certain organic matter and hydric soils

30         under specified circumstances; requiring the

31         department to provide training and guidance to

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 1         the staff of the department and the districts

 2         concerning delineation of surface waters and

 3         wetlands under the statewide programmatic

 4         general permit; specifying conditions

 5         applicable to such a permit; providing for the

 6         pursuit by the department of certain permits

 7         under specified federal laws; amending s.

 8         373.4211, F.S.; revising legislative

 9         ratification of a department rule to include

10         certain lands within areas that are not defined

11         as wetlands under the rule and to require the

12         department to provide certain guidance and

13         training; providing for legislative

14         ratification, contingent upon specified events,

15         of a rule approved by the Environmental

16         Regulation Commission concerning a list of

17         plants used to delineate wetlands; providing

18         for the application of specified wetland

19         delineation methods in various categories of

20         permits, declaratory statements, formal

21         determinations, mining reclamation plans, and

22         modifications to permits or mining reclamation

23         plans; providing an effective date.

24  

25  Be It Enacted by the Legislature of the State of Florida:

26  

27         Section 1.  Section 373.4144, Florida Statutes, is

28  amended to read:

29         373.4144  Federal environmental permitting.--

30         (1)  It is the intent of the Legislature to:

31  

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    Florida Senate - 2007                                  SB 2082
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 1         (a)  Facilitate coordination and a more efficient

 2  process of implementing regulatory duties and functions among

 3  the Department of Environmental Protection, the water

 4  management districts, the United States Army Corps of

 5  Engineers, the United States Fish and Wildlife Service, the

 6  National Marine Fisheries Service, the United States

 7  Environmental Protection Agency, the Florida Fish and Wildlife

 8  Conservation Commission, and other relevant federal and state

 9  agencies.

10         (b)  Authorize the Department of Environmental

11  Protection to obtain issuance by the United States Army Corps

12  of Engineers, under this section and other state and federal

13  laws, of an expanded state programmatic general permit, or a

14  series of regional permits:

15         1.  For categories of activities that are similar in

16  nature and undertaken in waters of the United States governed

17  by the Clean Water Act or in navigable waters governed by the

18  Rivers and Harbors Act of 1899; and

19         2.  That will cause only minimal adverse effects on the

20  environment when issued separately and, when issued

21  cumulatively, will have only minimal cumulative adverse

22  effects on the environment.

23         (c)  Use the mechanism of such a general permit or

24  permits to eliminate overlapping federal regulations and state

25  rules that seek to protect the same resource and to avoid

26  duplication of permitting between the United States Army Corps

27  of Engineers and the department for minor work located in

28  waters of the United States, including navigable waters, so as

29  to eliminate an inappropriate need for a separate, individual

30  approval from the Unites States Army Corps of Engineers while

31  ensuring maximum protection of wetland resources.

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    Florida Senate - 2007                                  SB 2082
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 1         (d)  Prohibit the department from seeking issuance of

 2  or taking any action under any such permit or permits unless

 3  the conditions the permit or permits would impose protect the

 4  environment and natural resources at least as much as the

 5  provisions of this part, the Clean Water Act, and the Rivers

 6  and Harbors Act.

 7         (e)  Add slash pine and gallberry, as facultative

 8  species, to the list of plants that this state uses to

 9  delineate jurisdictional wetland communities as an incentive

10  for and contingent upon aligning the method by which the

11  federal government and this state delineate jurisdictional

12  wetland communities so that federal and state methods

13  delineate the same communities and an impediment to the

14  authorization of a state programmatic general permit by the

15  United States Army Corps of Engineers is removed. The

16  department shall report annually to the Legislature on efforts

17  to eliminate impediments to achieving greater efficiencies

18  through expansion of a state programmatic general permit or

19  one or more regional general permits.

20         (2)  In order to avoid duplication and effectuate

21  efficient permitting of activities that affect wetlands, the

22  department and water management districts shall, subject to

23  agreement of the United States Army Corps of Engineers,

24  implement a statewide programmatic general permit for all

25  dredge and fill activities affecting 5 acres or less of

26  wetlands or other surface waters, including navigable waters.

27  The permit must be voluntary and in accordance with the

28  following conditions:

29         (a)  By seeking to use the statewide programmatic

30  general permit authorized by this subsection, an applicant

31  consents to the department or district applying the

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    Florida Senate - 2007                                  SB 2082
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 1  landward-most delineation of wetlands or other surface waters

 2  applicable under this part or the regulations implementing s.

 3  404 of the Clean Water Act, Pub. L. No. 92-500, as amended, 33

 4  U.S.C. ss. 1251 et seq., and s. 10 of the Rivers and Harbors

 5  Act of 1899. In implementing the 1987 Corps of Engineers

 6  Wetlands Manual Technical Report (87-1), the department or

 7  district shall equate high organic matter in the surface

 8  horizon in accordance with the indications for hydric soils

 9  issued by the Natural Resources Conservation Service and

10  approved for use in this state. The department shall ensure

11  statewide coordination and consistency in the delineation of

12  surface waters and wetlands, pursuant to the statewide

13  programmatic general permit authorized by this subsection, by

14  providing training and guidance to the department and

15  districts in implementing the permit.

16         (b)  By seeking to use the statewide programmatic

17  general permit authorized by this subsection, an applicant

18  consents to applicable substantive federal wetland regulatory

19  criteria, which are not included under this part but which are

20  authorized by the regulation implementing s. 404 of the Clean

21  Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251

22  et seq., and s. 10 of the Rivers and Harbors Act of 1899, as

23  required by the United States Army Corps of Engineers,

24  notwithstanding s. 373.4145 and for the limited purposes of

25  implementing the statewide programmatic general permit

26  authorized by this section.

27         (1)  The department is directed to develop, on or

28  before October 1, 2005, a mechanism or plan to consolidate, to

29  the maximum extent practicable, the federal and state wetland

30  permitting programs. It is the intent of the Legislature that

31  all dredge and fill activities impacting 10 acres or less of

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 1  wetlands or waters, including navigable waters, be processed

 2  by the state as part of the environmental resource permitting

 3  program implemented by the department and the water management

 4  districts. The resulting mechanism or plan shall analyze and

 5  propose the development of an expanded state programmatic

 6  general permit program in conjunction with the United States

 7  Army Corps of Engineers pursuant to s. 404 of the Clean Water

 8  Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et

 9  seq., and s. 10 of the Rivers and Harbors Act of 1899.

10  Alternatively, or in combination with an expanded state

11  programmatic general permit, the mechanism or plan may propose

12  the creation of a series of regional general permits issued by

13  the United States Army Corps of Engineers pursuant to the

14  referenced statutes. All of the regional general permits must

15  be administered by the department or the water management

16  districts or their designees.

17         (2)  The department is directed to file with the

18  Speaker of the House of Representatives and the President of

19  the Senate a report proposing any required federal and state

20  statutory changes that would be necessary to accomplish the

21  directives listed in this section and to coordinate with the

22  Florida Congressional Delegation on any necessary changes to

23  federal law to implement the directives.

24         (3)  Nothing in This section does not shall be

25  construed to preclude the department from pursuing a series of

26  regional general permits for construction activities in

27  wetlands and surface waters or complete assumption of federal

28  permitting programs regulating the discharge of dredged or

29  fill material pursuant to s. 404 of the Clean Water Act, Pub.

30  L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and s.

31  10 of the Rivers and Harbors Act of 1899, so long as the

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    Florida Senate - 2007                                  SB 2082
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 1  assumption encompasses all dredge and fill activities in, on,

 2  or over jurisdictional wetlands or waters, including navigable

 3  waters, within the state.

 4         Section 2.  Subsections (1) and (19) of section

 5  373.4211, Florida Statutes, are amended to read:

 6         373.4211  Ratification of chapter 17-340, Florida

 7  Administrative Code, on the delineation of the landward extent

 8  of wetlands and surface waters.--Pursuant to s. 373.421, the

 9  Legislature ratifies chapter 17-340, Florida Administrative

10  Code, approved on January 13, 1994, by the Environmental

11  Regulation Commission, with the following changes:

12         (1)  The last sentence of rule 17-340.100(1), Florida

13  Administrative Code, is changed to read: "The methodology

14  shall not be used to delineate areas that which are not

15  wetlands as defined in subsection 17-340.200(19), F.A.C.,

16  which include agricultural and silvicultural lands resulting

17  from conversion of nonwetland pine flatwoods as defined in

18  this rule, or nor to delineate as wetlands or surface waters

19  areas exempted from delineation by statute or agency rule." In

20  addition, rule 17-340.100(2), Florida Administrative Code, is

21  amended to read: "To ensure statewide coordination and

22  consistency in the delineation of surface waters and wetlands

23  under this rule the department shall provide the staff of the

24  department, water management districts, and local governments

25  with training and guidance in implementing the requirements

26  under this rule concerning methodology and technical peer

27  review of the delineations that may be requested."

28         (19)(a)  Rule 17-340.450(3) is amended by adding, after

29  the species list, the following language:

30         "Within Monroe County and the Key Largo portion of Dade

31  County only, the following species shall be listed as

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    Florida Senate - 2007                                  SB 2082
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 1  facultative: Alternanthera paronychioides, Byrsonima lucida,

 2  Ernodea littoralis, Guapira discolor, Marnilkara bahamensis,

 3  Pisonis rotundata, Pithecellobium keyensis, Pithecellobium

 4  unquis-cati, Randia aculeata, Reynosia septentrionalis, and

 5  Thrinax radiata."

 6         (b)  The Legislature recognizes that rule 62-340.450,

 7  Florida Administrative Code, was formerly known as rule

 8  17-340.450. Pursuant to s. 373.421 and subject to the

 9  conditions in this paragraph the Legislature ratifies the

10  changes to rule 62-340.450(3), Florida Administrative Code,

11  approved on February 23, 2006, by the Environmental Regulation

12  Commission, which add slash pine (Pinus elliottii) and

13  gallberry (Ilex glabra) to the list of facultative plants.

14  However, this ratification does not take effect unless the

15  state and federal methods to delineate wetland communities for

16  the purpose of wetland permitting jurisdiction are aligned as

17  specified in s. 373.4144.

18         (c)  Notwithstanding any changes to rule 62-340.450(3),

19  Florida Administrative Code, under paragraph (b), a surface

20  water and wetland delineation that was:

21         1.  Identified and approved in a:

22         a.  Permit issued under rule 62-340.450(3) before July

23  1, 2007, is effective for the term of the permit; and

24         b.  Modification to a permit which is not substantial

25  and was issued under rule 62-340.450(3), Florida

26  Administrative Code, before July 1, 2007, is effective for the

27  term of the permit as modified.

28         2.  Not identified and approved in a:

29         a.  Permit issued under rule 62-340.450(3), Florida

30  Administrative Code, before July 1, 2007, must be determined

31  under the rules applicable when the permit was issued.

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 1         b.  Modification to a permit which is not substantial

 2  and was issued under rule 62-340.450(3), Florida

 3  Administrative Code, before July 1, 2007, must be determined

 4  under the rules applicable when the modification was granted.

 5  

 6  The term "identified and approved" means subjected to a

 7  field-verification by the permitting agency which verification

 8  was surveyed as part of the process to review the application

 9  for the permit or modification or formed the basis for

10  issuance of the permit or modification.

11         (d)  Notwithstanding any changes to rule 62-340.450(3),

12  Florida Administrative Code, under paragraph (b), a

13  declaratory statement issued by the department under s.

14  403.914, 1984 Supplement to Florida Statutes 1983, or a formal

15  determination issued by the department or a water management

16  district under s. 373.421 in response to a petition that was

17  filed on or before July 1, 2007, is valid for the duration of

18  the statement or determination.

19         (e)  A petition for a declaratory statement by the

20  department under s. 403.914 or for a formal determination by

21  the department or a water management district under s. 373.421

22  which is pending on or before July 1, 2007, is exempt from any

23  changes to rule 62-340.450(3), Florida Administrative Code,

24  under paragraph (b) and subject to the provisions of rule

25  62-340.450(3), Florida Administrative Code, which were

26  approved by the Environmental Regulation Commission on

27  February 23, 2006.

28         (f)  Any changes to rule 62-340.450(3), Florida

29  Administrative Code, under paragraph (b) do not apply to

30  evaluation of an:

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 1         1.  Activity that is proposed within the boundary of a

 2  declaratory statement deemed valid under paragraph (d) or

 3  issued in accordance with the exemption granted under

 4  paragraph (e).

 5         2.  Application under this part for a permit to conduct

 6  dredge and fill activities which is pending on or before July

 7  1, 2007.

 8         3.  Activity that is associated with a mining operation

 9  under ss. 378.201-378.212 and ss. 378.701-378.703 and included

10  in an application to approve or modify a conceptual

11  reclamation plan submitted on or before July 1, 2007.

12         Section 3.  This act shall take effect July 1, 2007.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides for the Department of Environmental Protection
      to undertake and report on efforts to coordinate wetland
 4    permitting of the department, water management districts,
      and the federal government by securing issuance of a
 5    state programmatic permit or a series of regional
      programmatic permits by the Unites States Army Corps of
 6    Engineers. Specifies conditions applicable to such a
      permit. Requires the department and the water management
 7    districts to implement, subject to approval by the United
      States Army Corps of Engineers, a statewide programmatic
 8    general permit for dredge and fill activities impacting
      certain wetlands or surface waters which is voluntary.
 9    Specifies conditions applicable to such a permit.
      Requires that the department and the districts equate
10    certain organic matter and hydric soils under specified
      circumstances. Requires the department to provide
11    training and guidance concerning delineation of surface
      waters and wetlands under the statewide programmatic
12    general permit. Specifies conditions applicable to that
      permit. Provides for the pursuit by the department of
13    permits under specified federal laws. Revises legislative
      ratification of a department rule concerning delineation
14    of wetlands to include certain lands within areas that
      are not defined as wetlands under the rule and to require
15    the department to provide guidance and training
      concerning wetland delineation. Provides legislative
16    ratification, contingent upon specified events, of a rule
      approved by the Environmental Regulation Commission which
17    concerns a list of plants used for delineation of
      wetlands. Provides for the application of specified
18    wetland delineation methods in the evaluation of various
      categories of permits, declaratory statements, formal
19    determinations, mining reclamation plans, or
      modifications to permits or mining reclamation plans.
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