Senate Bill sb2082c1

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    Florida Senate - 2007                           CS for SB 2082

    By the Committee on General Government Appropriations; and
    Senator Bennett




    601-2687-07

  1                      A bill to be entitled

  2         An act relating to environmental permitting;

  3         amending s. 373.4132, F.S.; authorizing certain

  4         dry slip storage to be constructed under

  5         specified conditions; amending s. 373.414,

  6         F.S.; providing that certain lands added to a

  7         conceptual reclamation plan are exempt from

  8         specified rules; amending s. 373.4144, F.S.;

  9         providing legislative intent relating to

10         seeking permits from the United States Army

11         Corps of Engineers; revising provisions

12         requiring the Department of Environmental

13         Protection to develop and consolidate federal

14         and state wetland permitting programs;

15         authorizing implementation of a state

16         programmatic general permit or regional general

17         permits by the department and water management

18         districts for certain dredge and fill

19         activities; specifying conditions applicable to

20         such permit or permits; creating s. 373.4212,

21         F.S.; ratifying changes to department rule

22         relating to facultative plants; postponing the

23         effect of the rule until state and federal

24         wetland delineation methodologies are aligned;

25         providing for permit modification under certain

26         circumstances; providing for certain

27         declaratory statements from the department;

28         providing exemptions for certain permit

29         petitions and applications relating to

30         specified activities; amending ss. 161.041,

31         373.4141, and 403.087, F.S.; requiring the

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    Florida Senate - 2007                           CS for SB 2082
    601-2687-07




 1         department and water management districts to

 2         provide applicants with written notice of

 3         permit denial; providing criteria for such

 4         notice; providing a directive to the Division

 5         of Statutory Revision; providing an effective

 6         date.

 7  

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

 9  

10         Section 1.  Section 373.4132, Florida Statutes, is

11  amended to read:

12         373.4132  Dry storage facility permitting.--The

13  governing board or the department shall require a permit under

14  this part, including s. 373.4145, for the construction,

15  alteration, operation, maintenance, abandonment, or removal of

16  a dry storage facility for 10 or more vessels that is

17  functionally associated with a boat launching area; however,

18  developments of regional impact for which a development order

19  has been issued under chapter 380, before July 1,1995,

20  authorizing a dry slip storage that has yet to be constructed,

21  is entitled to the number of dry slips approved under the

22  development order subject to the condition that no more than

23  15 percent of the watercraft from the dry slip storage may

24  access the water each day. As part of an applicant's

25  demonstration that such a facility will not be harmful to the

26  water resources and will not be inconsistent with the overall

27  objectives of the district, the governing board or department

28  shall require the applicant to provide reasonable assurance

29  that the secondary impacts from the facility will not cause

30  adverse impacts to the functions of wetlands and surface

31  waters, including violations of state water quality standards

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    Florida Senate - 2007                           CS for SB 2082
    601-2687-07




 1  applicable to waters as defined in s. 403.031(13), and will

 2  meet the public interest test of s. 373.414(1)(a), including

 3  the potential adverse impacts to manatees. Nothing in This

 4  section does not shall affect the authority of the governing

 5  board or the department to regulate such secondary impacts

 6  under this part for other regulated activities.

 7         Section 2.  Subsection (15) of section 373.414, Florida

 8  Statutes, is amended to read:

 9         373.414  Additional criteria for activities in surface

10  waters and wetlands.--

11         (15)  Activities associated with mining operations as

12  defined by and subject to ss. 378.201-378.212 and

13  378.701-378.703 and included in a conceptual reclamation plan

14  or modification application submitted prior to July 1, 1996,

15  shall continue to be reviewed under the rules of the

16  department adopted pursuant to ss. 403.91-403.929, 1984

17  Supplement to the Florida Statutes 1983, as amended, the rules

18  of the water management districts under this part, and

19  interagency agreements, in effect on January 1, 1993. Such

20  activities are shall be exempt from rules adopted under

21  pursuant to subsection (9) and the statewide methodology

22  ratified under pursuant to s. 373.4211. As of January 1, 1994,

23  such activities may be issued permits authorizing construction

24  for the life of the mine. Lands added to a conceptual

25  reclamation plan subject to this subsection through a

26  modification submitted after July 1, 1996, which are

27  contiguous to the conceptual reclamation plan area are exempt

28  from rules adopted under subsection (9) if the total acreage

29  of the conceptual reclamation plan is not increased through

30  the modification and the cumulative acreage added does not

31  exceed 3 percent of the conceptual reclamation plan area.

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    Florida Senate - 2007                           CS for SB 2082
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 1  Lands that have been mined or disturbed by mining activities,

 2  lands subject to a conservation easement under which the

 3  grantee is a state or federal regulatory agency, and lands

 4  otherwise preserved as a part of a permitting review may not

 5  be removed from the conceptual reclamation plan area under

 6  this subsection.

 7         Section 3.  Section 373.4144, Florida Statutes, is

 8  amended to read:

 9         373.4144  Federal environmental permitting.--

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

11         (a)  Facilitate coordination and a more efficient

12  process of implementing regulatory duties and functions

13  between the Department of Environmental Protection, the water

14  management districts, the United States Army Corps of

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

16  National Marine Fisheries Service, the United States

17  Environmental Protection Agency, the Fish and Wildlife

18  Conservation Commission, and other relevant federal and state

19  agencies.

20         (b)  Authorize the Department of Environmental

21  Protection to obtain from the United States Army Corps of

22  Engineers, under state and federal law and as set forth in

23  this section, an expanded state programmatic general permit,

24  or a series of regional general permits, for categories of

25  activities conducted in waters of the United States governed

26  by the Clean Water Act and in navigable waters under the

27  Rivers and Harbors Act of 1899 which are similar in nature,

28  which will cause only minimal adverse environmental effects

29  when performed separately, and which will have only minimal

30  cumulative adverse effects on the environment.

31  

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    Florida Senate - 2007                           CS for SB 2082
    601-2687-07




 1         (c)  Use a state general permit or regional general

 2  permits to eliminate overlapping federal and state regulations

 3  that relate to the same resource and to avoid duplication of

 4  permitting between the United States Army Corps of Engineers

 5  and the department for minor work located in waters of the

 6  United States, including navigable waters, thus eliminating,

 7  if appropriate, the need for separate approval from the United

 8  States Army Corps of Engineers while ensuring the most

 9  stringent protection of wetland resources.

10         (d)  Direct the department to not seek issuance of or

11  take any action pursuant to obtaining a general permit or

12  regional general permits unless conditions are at least as

13  protective of the environment and natural resources as

14  existing state law under this part and federal law under the

15  Clean Water Act and the Rivers and Harbors Act of 1899.

16         (e)  Add slash pine and gallberry to the state list of

17  facultative species as an incentive for and contingent upon

18  the alignment of federal and state wetland jurisdictional

19  delineation, so that the alignment eliminates an impediment to

20  obtaining authorization from the United States Army Corps of

21  Engineers for a state programmatic general permit or regional

22  general permits. The department is directed to develop, on or

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

24  the maximum extent practicable, the federal and state wetland

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

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

27  wetlands or waters, including navigable waters, be processed

28  by the state as part of the environmental resource permitting

29  program implemented by the department and the water management

30  districts. The resulting mechanism or plan shall analyze and

31  propose the development of an expanded state programmatic

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    Florida Senate - 2007                           CS for SB 2082
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 1  general permit program in conjunction with the United States

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

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

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

 5  Alternatively, or in combination with an expanded state

 6  programmatic general permit, the mechanism or plan may propose

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

 8  the United States Army Corps of Engineers pursuant to the

 9  referenced statutes. All of the regional general permits must

10  be administered by the department or the water management

11  districts or their designees.

12         (2)  In order to effectuate efficient wetland

13  permitting and avoid duplication, the department and water

14  management districts are authorized to implement a voluntary

15  state programmatic general permit for all dredge and fill

16  activities impacting 5 acres or less of wetlands or other

17  surface waters, including navigable waters, subject to

18  agreement with the United States Army Corps of Engineers, if

19  the general permit is at least as protective of the

20  environment and natural resources as existing state law under

21  this part and federal law under the Clean Water Act and the

22  Rivers and Harbors Act of 1899. The department is directed to

23  file with the Speaker of the House of Representatives and the

24  President of the Senate a report proposing any required

25  federal and state statutory changes that would be necessary to

26  accomplish the directives listed in this section and to

27  coordinate with the Florida Congressional Delegation on any

28  necessary changes to federal law to implement the directives.

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

30  construed to preclude the department from pursuing a series of

31  regional general permits for construction activities in

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    Florida Senate - 2007                           CS for SB 2082
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 1  wetlands or surface waters or complete assumption of federal

 2  permitting programs regulating the discharge of dredged or

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

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

 5  10 of the Rivers and Harbors Act of 1899., so long as The

 6  assumption of federal permitting programs must encompass

 7  encompasses all dredge and fill activities in, on, or over

 8  jurisdictional wetlands or waters, including navigable waters,

 9  within the state.

10         (4)  The department shall report annually to the

11  Legislature on its efforts to eliminate impediments to

12  achieving greater efficiencies through expansion of a state

13  programmatic general permit or of regional general permits.

14         Section 4.  Section 373.4212, Florida Statutes, is

15  created to read:

16         373.4212  Ratification of department rule; facultative

17  plants.--Pursuant to s. 373.421 and subject to the conditions

18  described in this section, the Legislature ratifies the change

19  to rule 62-340.450(3), Florida Administrative Code, approved

20  on February 23, 2006, by the Environmental Regulation

21  Commission which adds Pinus elliottii, and Ilex glabra to the

22  list of facultative plants. This ratification and the rule

23  revision may not take effect until state and federal wetland

24  jurisdictional delineation methodologies are aligned.

25         (1)  Surface water and wetland delineations identified

26  and approved by a permit issued under rules adopted under this

27  part before the effective date of this act remain valid until

28  the expiration of the permit, notwithstanding the change to

29  rule 62-340.450(3). For purposes of this section, the term

30  "identified and approved" means:

31  

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    Florida Senate - 2007                           CS for SB 2082
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 1         (a)  The delineation was field-verified by the

 2  permitting agency and the verification was surveyed as part of

 3  the application review process for the permit; or

 4         (b)  The delineation was field-verified by the

 5  permitting agency and approved pursuant to the permit.

 6         (2)  Where surface water and wetland delineations were

 7  not identified and approved under the permit issued under

 8  rules adopted under this part, delineations within the

 9  geographical area to which the permit applies shall be

10  determined pursuant to the rules applicable at the time the

11  permit was issued, notwithstanding the change to rule

12  62-340.450(3). This section also applies to any modification

13  of the permit issued under rules adopted under this part which

14  do not constitute a substantial modification within the

15  geographical area to which the permit applies.

16         (3)  Any declaratory statement issued by the department

17  under s. 403.914, 1984 Supplement to the Florida Statutes

18  1983, as amended, pursuant to rules adopted thereunder, or by

19  the department or a water management district under s.

20  373.421, in response to a petition filed on or before the

21  effective date of this act shall continue to be valid for the

22  duration of such declaratory statement. Any petition pending

23  on or before the effective date of this act shall be exempt

24  from the change to rule 62-340.450(3) and shall be subject to

25  the provisions of chapter 62-340, Florida Administrative Code,

26  in effect prior to such change. Activities proposed within the

27  boundaries of a valid declaratory statement issued pursuant to

28  a petition submitted to either the department or the relevant

29  water management district on or before the effective date of

30  this act, or are validated jurisdictional determination prior

31  

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    Florida Senate - 2007                           CS for SB 2082
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 1  to its expiration, shall continue thereafter to be exempt from

 2  the change to rule 62-340.450(3).

 3         (4)  A permit application under this part for dredging

 4  and filling or other activity that is pending on or before the

 5  effective date of this act is exempt from the change to rule

 6  62-340.450(3).

 7         (5)  Activities associated with mining operations as

 8  defined by and subject to ss. 378.201-378.212 and

 9  378.701-378.703 and included in a conceptual reclamation plan

10  or modification application submitted on or before the

11  effective date of this act is exempt from change to rule

12  62-340.450(3).

13         Section 5.  Subsection (5) is added to section 161.041,

14  Florida Statutes, to read:

15         161.041  Permits required.--

16         (5)  When the department denies an application for a

17  permit, the department shall provide written notice to the

18  applicant. The notice must include legal authority for the

19  denial of the permit and a citation to the applicable portions

20  of an ordinance, rule, or statute.

21         Section 6.  Subsection (2) of section 373.4141, Florida

22  Statutes, is amended to read:

23         373.4141  Permits; processing.--

24         (2)  A permit shall be approved or denied within 90

25  days after receipt of the original application, the last item

26  of timely requested additional material, or the applicant's

27  written request to begin processing the permit application.

28  When the department or the district denies an application for

29  a permit, the department or the district shall provide written

30  notice to the applicant. The notice must include legal

31  

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    Florida Senate - 2007                           CS for SB 2082
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 1  authority for the denial of the permit and a citation to the

 2  applicable portions of an ordinance, rule, or statute.

 3         Section 7.  Present subsection (9) of section 403.087,

 4  Florida Statutes, is redesignated as subsection (10), and a

 5  new subsection (9) is added to that section, to read:

 6         403.087  Permits; general issuance; denial; revocation;

 7  prohibition; penalty.--

 8         (9)  When the department denies an application for a

 9  permit, the department shall provide written notice to the

10  applicant. The notice must include legal authority for the

11  denial of the permit and a citation to the applicable portions

12  of an ordinance, rule, or statute.

13         Section 8.  The Division of Statutory Revision is

14  directed to substitute the date on which this act takes effect

15  for the phrase "the effective date of this act" wherever it

16  occurs in provisions of s. 373.4212, Florida Statutes, as

17  amended by this act, when preparing that section for

18  publication in the next edition of the Florida Statutes.

19         Section 9.  This act shall take effect upon becoming a

20  law.

21  

22          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
23                         Senate Bill 2082

24                                 

25  Amends s. 373.4132, F.S., to allow a dry slip storage facility
    whose development order was issued prior to July 1, 1995, to
26  be built with certain restrictions.

27  Amends s. 373.414, F.S., to allow phosphate mining operations
    to complete reclamation activities under a life-of-the-mine
28  permit, based on specific criteria.

29  Requires the Department of Environmental Protection to provide
    notice when an applicant is denied a permit.
30  

31  

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