HB 957

1	A bill to be entitled
2	An act relating to environmental permitting; amending s.
3	373.4144, F.S.; providing legislative intent; revising
4	provisions requiring the Department of Environmental
5	Protection to develop and utilize a mechanism
6	consolidating federal and state wetland permitting
7	programs; authorizing implementation of a statewide
8	programmatic general permit by the department and water
9	management districts for certain dredge and fill
10	activities; specifying conditions applicable to such
11	permit; authorizing the department to adopt rules and
12	apply program criteria; providing for use of such general
13	permit within the Northwest Florida Water Management
14	District; amending s. 373.4211, F.S.; revising the
15	provisions concerning the methodologies used to delineate
16	the landward extent of wetlands and surface waters;
17	requiring the department to ensure coordination and
18	consistency in the delineation of wetlands and surface
19	waters; specifying activities for such coordination and
20	consistency; revising provisions concerning the vegetative
21	index used to delineate the landward extent of wetlands
22	and surface waters; providing for permit modification
23	under certain circumstances; providing for certain
24	declaratory statements from the department; providing
25	exemptions for certain permit petitions and applications
26	relating to specified activities; providing a directive to
27	the Division of Statutory Revision; providing an effective
28	date.
29
30	Be It Enacted by the Legislature of the State of Florida:
31
32	Section 1.  Section 373.4144, Florida Statutes, is amended
33	to read:
34	373.4144  Federal environmental permitting.--
35	(1)  It is the intent of the Legislature to:
36	(a)  Facilitate coordination and a more efficient process
37	of implementing regulatory duties and functions between the
38	Department of Environmental Protection, the water management
39	districts, the United States Army Corps of Engineers, the United
40	States Fish and Wildlife Service, the National Marine Fisheries
41	Service, the United States Environmental Protection Agency, and
42	the Florida Game and Fresh Water Fish Commission and other
43	relevant federal and state agencies.
44	(b)  Authorize the Department of Environmental Protection
45	to obtain issuance by the United States Army Corps of Engineers,
46	pursuant to state and federal law and as set forth in this
47	section of an expanded state programmatic general permit, or a
48	series of regional permits, for categories of activities in
49	waters of the United States governed by the Clean Water Act and
50	in navigable waters under the Rivers and Harbors Act of 1899
51	that are similar in nature, that will cause only minimal adverse
52	environmental effects when performed separately, and that will
53	have only minimal cumulative adverse effects on the environment.
54	(c)  Utilize the mechanism of such a general permit or
55	permits to eliminate overlapping federal and state regulations
56	that seek to protect the same resource and to avoid duplication
57	of permitting between the United States Army Corps of Engineers
58	and the department for minor work located in waters of the
59	United States, including navigable waters, thus eliminating, in
60	appropriate cases, the need for a separate individual approval
61	from the United States Army Corps of Engineers while ensuring
62	the most stringent protection of wetland resources.
63	(d)  Direct the department not to seek issuance of or take
64	any action pursuant to any such permit or permits unless such
65	conditions are at least as protective of the environment and
66	natural resources as existing state law under part IV of this
67	chapter and federal law under the Clean Water Act and the Rivers
68	and Harbors Act.
69	(e)  Add slash pine and gallberry to the state list of
70	facultative species as an incentive for and contingent upon the
71	alignment of federal and state wetland jurisdictional
72	delineation, so that the alignment, which seeks to delineate the
73	same wetland communities, eliminates an impediment to obtaining
74	authorization from the United States Army Corps of Engineers for
75	a state programmatic general permit. The department shall report
76	annually to the Legislature on efforts to eliminate impediments
77	to achieving greater efficiencies through expansion of a state
78	programmatic general permit or regional general permits. The
79	department is directed to develop, on or before October 1, 2005,
80	a mechanism or plan to consolidate, to the maximum extent
81	practicable, the federal and state wetland permitting programs.
82	It is the intent of the Legislature that all dredge and fill
83	activities impacting 10 acres or less of wetlands or waters,
84	including navigable waters, be processed by the state as part of
85	the environmental resource permitting program implemented by the
86	department and the water management districts. The resulting
87	mechanism or plan shall analyze and propose the development of
88	an expanded state programmatic general permit program in
89	conjunction with the United States Army Corps of Engineers
90	pursuant to s. 404 of the Clean Water Act, Pub. L. No. 92-500,
91	as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers
92	and Harbors Act of 1899. Alternatively, or in combination with
93	an expanded state programmatic general permit, the mechanism or
94	plan may propose the creation of a series of regional general
95	permits issued by the United States Army Corps of Engineers
96	pursuant to the referenced statutes. All of the regional general
97	permits must be administered by the department or the water
98	management districts or their designees.
99	(2)  In order to effectuate efficient wetland permitting
100	and avoid duplication, the department and water management
101	districts are authorized to implement a voluntary statewide
102	programmatic general permit for all dredge and fill activities
103	impacting 5 acres or less of wetlands or other surface waters,
104	including navigable waters, subject to agreement with the United
105	States Army Corps of Engineers in accordance with the following
106	conditions:
107	(a)  By seeking to use the statewide programmatic general
108	permit authorized by this section, an applicant consents to the
109	department or district applying the landward-most delineation of
110	wetlands or other surface waters applicable under this part or
111	the regulations implementing s. 404 of the Clean Water Act, Pub.
112	L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and s. 10
113	of the Rivers and Harbors Act of 1899. In the implementation of
114	the 1987 Corps of Engineers Wetlands Manual Technical Report
115	(87-1), the department or district shall equate high organic
116	matter in the surface horizon in accordance with the National
117	Resource Conservation Service indications for hydric soils
118	approved for use in this state. The department shall ensure
119	statewide coordination and consistency in the delineation of
120	surface waters and wetlands, pursuant to the statewide
121	programmatic general permit authorized by this part, by
122	providing training and guidance to the department and districts
123	in the implementation of such permit.
124	(b)  By seeking to use the statewide programmatic general
125	permit authorized by this section, an applicant consents to
126	applicable substantive federal wetland regulatory criteria that
127	are not included under this part but that are authorized by the
128	regulation implementing s. 404 of the Clean Water Act, Pub. L.
129	No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of
130	the Rivers and Harbors Act of 1899, as required by the United
131	States Army Corps of Engineers, notwithstanding the provisions
132	of s. 373.4145 and for the limited purposes of implementing the
133	statewide programmatic general permit authorized by this
134	section. The department is directed to file with the Speaker of
135	the House of Representatives and the President of the Senate a
136	report proposing any required federal and state statutory
137	changes that would be necessary to accomplish the directives
138	listed in this section and to coordinate with the Florida
139	Congressional Delegation on any necessary changes to federal law
140	to implement the directives.
141	(3)  Nothing in this section shall be construed to preclude
142	the department from pursuing a series of regional general
143	permits for construction activities in wetlands or surface
144	waters or complete assumption of federal permitting programs
145	regulating the discharge of dredged or fill material pursuant to
146	s. 404 of the Clean Water Act, Pub. L. No. 92-500, as amended,
147	33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers and Harbors
148	Act of 1899, so long as the assumption encompasses all dredge
149	and fill activities in, on, or over jurisdictional wetlands or
150	waters, including navigable waters, within the state.
151	Section 2.  Subsections (1) and (19) of section 373.4211,
152	Florida Statutes, are amended to read:
153	373.4211  Ratification of chapter 17-340, Florida
154	Administrative Code, on the delineation of the landward extent
155	of wetlands and surface waters.--Pursuant to s. 373.421, the
156	Legislature ratifies chapter 17-340, Florida Administrative
157	Code, approved on January 13, 1994, by the Environmental
158	Regulation Commission, with the following changes:
159	(1)  The last sentence of rule 62-340.100(1) 17-340.100(1),
160	Florida Administrative Code, is changed to read: "The
161	methodology shall not be used to delineate areas which are not
162	wetlands as defined in subsection 62-340.200(19) 17-340.200(19),
163	F.A.C., which include agricultural and silvicultural lands
164	resulting from conversion of non-wetland pine flatwoods as
165	defined in this rule, nor to delineate as wetlands or surface
166	waters areas exempted from delineation by statute or agency
167	rule." In addition, rule 62-340.100(2), Florida Administrative
168	Code, is changed to read: "The department shall be responsible
169	for ensuring statewide coordination and consistency in the
170	delineation of wetlands and surface waters pursuant to this rule
171	by providing training and guidance to the department, districts,
172	and local governments in implementing the methodology and
173	technical peer review of delineations of wetlands and surface
174	waters as may be requested."
175	(19)(a)  Rule 17-340.450(3) is amended by adding, after the
176	species list, the following language:
177	"Within Monroe County and the Key Largo portion of Dade
178	County only, the following species shall be listed as
179	facultative: Alternanthera paronychioides, Byrsonima lucida,
180	Ernodea littoralis, Guapira discolor, Marnilkara bahamensis,
181	Pisonis rotundata, Pithecellobium keyensis, Pithecellobium
182	unquis-cati, Randia aculeata, Reynosia septentrionalis, and
183	Thrinax radiata."
184	(b)  Pursuant to s. 373.421 and subject to the conditions
185	described in this paragraph, the Legislature ratifies the
186	changes to rule 62-340.450(3), Florida Administrative Code,
187	approved on February 23, 2006, by the Environmental Regulation
188	Commission that add slash pine (pinus elliotti) and gallberry
189	(flex glabral) to the list of facultative plants. However, this
190	ratification and the rule revision shall not take effect until
191	state and federal wetland jurisdictional delineation
192	methodologies are aligned.
193	(c)  Surface water and wetland delineations identified and
194	approved by a permit issued under rules adopted under this part
195	prior to the effective date of this act shall remain valid until
196	expiration of such permit, notwithstanding the changes to rule
197	62-340.450(3), Florida Administrative Code, as described in this
198	subsection. For purposes of this paragraph, the term "identified
199	and approved" means:
200	1.  The delineation was field verified by the permitting
201	agency and such verification was surveyed as part of the
202	application review process for the permit; or
203	2.  The delineation was field verified by the permitting
204	agency and approved pursuant to the permit.
205
206	Where surface water and wetland delineations were not identified
207	and approved pursuant to the permit issued under rules adopted
208	under this part, delineations within the geographical area to
209	which such permit applies shall be determined pursuant to the
210	rules applicable at the time the permit was issued,
211	notwithstanding the changes to rule 62-340.450(3), Florida
212	Administrative Code, as described in this subsection. This
213	paragraph shall also apply to any modification of the permit
214	issued under rules adopted pursuant to this part that does not
215	constitute a substantial modification within the geographical
216	area to which the permit applies.
217	(d)  Any declaratory statement issued by the department
218	under s. 403.914, 1984 Supplement to the Florida Statutes 1983,
219	as amended, pursuant to rules adopted thereunder, or by the
220	department or a water management district under s. 373.421, in
221	response to a petition filed on or before the effective date of
222	this act, shall continue to be valid for the duration of such
223	declaratory statement. Any such petition pending on or before
224	the effective date of this act shall be exempt from the changes
225	to rule 62-340.450(3), Florida Administrative Code, as described
226	in this subsection, and shall be subject to the provisions of
227	chapter 62-340, Florida Administrative Code, in effect prior to
228	such change. Activities proposed within the boundaries of a
229	valid declaratory statement issued pursuant to a petition
230	submitted to either the department or the relevant water
231	management district on or before the effective date of this act,
232	or a revalidated jurisdictional determination prior to its
233	expiration, shall continue thereafter to be exempt from the
234	changes to rule 62-340.450(3), Florida Administrative Code, as
235	described in this subsection.
236	(e)  A permit application under this part for dredging and
237	filling or other activity that is pending on or before the
238	effective date of this act shall be exempt from the changes to
239	rule 62-340.450(3), Florida Administrative Code, as described in
240	this subsection.
241	(f)  Activities associated with mining operations as
242	defined by and subject to ss. 378.201-378.212 and 378.701-
243	378.703 and included in a conceptual reclamation plan or
244	modification application submitted on or before the effective
245	date of this act shall be exempt from changes to rule 62-
246	340.450(3), Florida Administrative Code, as described in this
247	subsection.
248	Section 3.  The Division of Statutory Revision is directed
249	to substitute the date on which this act takes effect for the
250	phrase "the effective date of this act" wherever it occurs in
251	provisions of s. 373.4211, Florida Statutes, as amended by this
252	act, when preparing that section for publication in the next
253	edition of the Florida Statutes.
254	Section 4.  This act shall take effect upon becoming a law.

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