CS/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 state
8	programmatic general permit or regional general permits by
9	the department and water management districts for certain
10	dredge and fill activities; specifying conditions
11	applicable to such permit or permits; amending s.
12	373.4211, F.S.; revising the provisions concerning the
13	methodologies used to delineate the landward extent of
14	wetlands and surface waters; revising provisions
15	concerning the vegetative index used to delineate the
16	landward extent of wetlands and surface waters; providing
17	for permit modification under certain circumstances;
18	providing for certain declaratory statements from the
19	department; providing exemptions for certain permit
20	petitions and applications relating to specified
21	activities; amending ss. 161.041, 373.4141, and 403.087,
22	F.S.; requiring the department and water management
23	districts to provide applicants with written notice of
24	permit denial; providing criteria for such notice;
25	amending s. 373.441, F.S.; requiring local governments to
26	enact and enforce wetland regulatory programs through the
27	state environmental resource permit program; providing a
28	directive to the Division of Statutory Revision; providing
29	an effective date.
30
31	Be It Enacted by the Legislature of the State of Florida:
32
33	Section 1.  Section 373.4144, Florida Statutes, is amended
34	to read:
35	373.4144  Federal environmental permitting.--
36	(1)  It is the intent of the Legislature to:
37	(a)  Facilitate coordination and a more efficient process
38	of implementing regulatory duties and functions between the
39	Department of Environmental Protection, the water management
40	districts, the United States Army Corps of Engineers, the United
41	States Fish and Wildlife Service, the National Marine Fisheries
42	Service, the United States Environmental Protection Agency, the
43	Fish and Wildlife Conservation Commission, and other relevant
44	federal and state agencies.
45	(b)  Authorize the Department of Environmental Protection
46	to obtain issuance by the United States Army Corps of Engineers,
47	pursuant to state and federal law and as set forth in this
48	section, of an expanded state programmatic general permit, or a
49	series of regional general permits, for categories of activities
50	in waters of the United States governed by the Clean Water Act
51	and in navigable waters under the Rivers and Harbors Act of 1899
52	that are similar in nature, that will cause only minimal adverse
53	environmental effects when performed separately, and that will
54	have only minimal cumulative adverse effects on the environment.
55	(c)  Utilize the mechanism of such a state general permit
56	or such regional general permits to eliminate overlapping
57	federal and state regulations that seek to protect the same
58	resource and to avoid duplication of permitting between the
59	United States Army Corps of Engineers and the department for
60	minor work located in waters of the United States, including
61	navigable waters, thus eliminating, in appropriate cases, the
62	need for a separate individual approval from the United States
63	Army Corps of Engineers while ensuring the most stringent
64	protection of wetland resources.
65	(d)  Direct the department not to seek issuance of or take
66	any action pursuant to any such permit or permits unless such
67	conditions are at least as protective of the environment and
68	natural resources as existing state law under this part and
69	federal law under the Clean Water Act and the Rivers and Harbors
70	Act of 1899.
71	(e)  Add slash pine and gallberry to the state list of
72	facultative species as an incentive for and contingent upon the
73	alignment of federal and state wetland jurisdictional
74	delineation, so that the alignment, which seeks to delineate the
75	same wetland communities, eliminates an impediment to obtaining
76	authorization from the United States Army Corps of Engineers for
77	a state programmatic general permit or regional general permits.
78	The department shall report annually to the Legislature on
79	efforts to eliminate impediments to achieving greater
80	efficiencies through expansion of a state programmatic general
81	permit or regional general permits. The department is directed
82	to develop, on or before October 1, 2005, a mechanism or plan to
83	consolidate, to the maximum extent practicable, the federal and
84	state wetland permitting programs. It is the intent of the
85	Legislature that all dredge and fill activities impacting 10
86	acres or less of wetlands or waters, including navigable waters,
87	be processed by the state as part of the environmental resource
88	permitting program implemented by the department and the water
89	management districts. The resulting mechanism or plan shall
90	analyze and propose the development of an expanded state
91	programmatic general permit program in conjunction with the
92	United States Army Corps of Engineers pursuant to s. 404 of the
93	Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
94	1251 et seq., and s. 10 of the Rivers and Harbors Act of 1899.
95	Alternatively, or in combination with an expanded state
96	programmatic general permit, the mechanism or plan may propose
97	the creation of a series of regional general permits issued by
98	the United States Army Corps of Engineers pursuant to the
99	referenced statutes. All of the regional general permits must be
100	administered by the department or the water management districts
101	or their designees.
102	(2)  In order to effectuate efficient wetland permitting
103	and avoid duplication, the department and water management
104	districts are authorized to implement a voluntary state
105	programmatic general permit for all dredge and fill activities
106	impacting 5 acres or less of wetlands or other surface waters,
107	including navigable waters, subject to agreement with the United
108	States Army Corps of Engineers, provided the general permit is
109	at least as protective of the environment and natural resources
110	as existing state law under this part and federal law under the
111	Clean Water Act and the Rivers and Harbors Act of 1899. The
112	department is directed to file with the Speaker of the House of
113	Representatives and the President of the Senate a report
114	proposing any required federal and state statutory changes that
115	would be necessary to accomplish the directives listed in this
116	section and to coordinate with the Florida Congressional
117	Delegation on any necessary changes to federal law to implement
118	the directives.
119	(3)  Nothing in this section shall be construed to preclude
120	the department from pursuing a series of regional general
121	permits for construction activities in wetlands or surface
122	waters or complete assumption of federal permitting programs
123	regulating the discharge of dredged or fill material pursuant to
124	s. 404 of the Clean Water Act, Pub. L. No. 92-500, as amended,
125	33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers and Harbors
126	Act of 1899, so long as the assumption encompasses all dredge
127	and fill activities in, on, or over jurisdictional wetlands or
128	waters, including navigable waters, within the state.
129	Section 2.  Subsection (19) of section 373.4211, Florida
130	Statutes, is amended to read:
131	373.4211  Ratification of chapter 17-340, Florida
132	Administrative Code, on the delineation of the landward extent
133	of wetlands and surface waters.--Pursuant to s. 373.421, the
134	Legislature ratifies chapter 17-340, Florida Administrative
135	Code, approved on January 13, 1994, by the Environmental
136	Regulation Commission, with the following changes:
137	(19)(a)  Rule 17-340.450(3) is amended by adding, after the
138	species list, the following language:
139	"Within Monroe County and the Key Largo portion of Dade
140	County only, the following species shall be listed as
141	facultative: Alternanthera paronychioides, Byrsonima lucida,
142	Ernodea littoralis, Guapira discolor, Marnilkara bahamensis,
143	Pisonis rotundata, Pithecellobium keyensis, Pithecellobium
144	unquis-cati, Randia aculeata, Reynosia septentrionalis, and
145	Thrinax radiata."
146	(b)  Pursuant to s. 373.421 and subject to the conditions
147	described in this paragraph, the Legislature ratifies the
148	changes to rule 62-340.450(3), Florida Administrative Code,
149	approved on February 23, 2006, by the Environmental Regulation
150	Commission that add slash pine (pinus elliotti) and gallberry
151	(flex glabral) to the list of facultative plants. However, this
152	ratification and the rule revision shall not take effect until
153	state and federal wetland jurisdictional delineation
154	methodologies are aligned.
155	(c)  Surface water and wetland delineations identified and
156	approved by a permit issued under rules adopted under this part
157	prior to the effective date of this act shall remain valid until
158	expiration of such permit, notwithstanding the changes to rule
159	62-340.450(3), Florida Administrative Code, as described in this
160	subsection. For purposes of this paragraph, the term "identified
161	and approved" means:
162	1.  The delineation was field verified by the permitting
163	agency and such verification was surveyed as part of the
164	application review process for the permit; or
165	2.  The delineation was field verified by the permitting
166	agency and approved pursuant to the permit.
167
168	Where surface water and wetland delineations were not identified
169	and approved pursuant to the permit issued under rules adopted
170	under this part, delineations within the geographical area to
171	which such permit applies shall be determined pursuant to the
172	rules applicable at the time the permit was issued,
173	notwithstanding the changes to rule 62-340.450(3), Florida
174	Administrative Code, as described in this subsection. This
175	paragraph shall also apply to any modification of the permit
176	issued under rules adopted pursuant to this part that does not
177	constitute a substantial modification within the geographical
178	area to which the permit applies.
179	(d)  Any declaratory statement issued by the department
180	under s. 403.914, 1984 Supplement to the Florida Statutes 1983,
181	as amended, pursuant to rules adopted thereunder, or by the
182	department or a water management district under s. 373.421, in
183	response to a petition filed on or before the effective date of
184	this act, shall continue to be valid for the duration of such
185	declaratory statement. Any such petition pending on or before
186	the effective date of this act shall be exempt from the changes
187	to rule 62-340.450(3), Florida Administrative Code, as described
188	in this subsection, and shall be subject to the provisions of
189	chapter 62-340, Florida Administrative Code, in effect prior to
190	such change. Activities proposed within the boundaries of a
191	valid declaratory statement issued pursuant to a petition
192	submitted to either the department or the relevant water
193	management district on or before the effective date of this act,
194	or a revalidated jurisdictional determination prior to its
195	expiration, shall continue thereafter to be exempt from the
196	changes to rule 62-340.450(3), Florida Administrative Code, as
197	described in this subsection.
198	(e)  A permit application under this part for dredging and
199	filling or other activity that is pending on or before the
200	effective date of this act shall be exempt from the changes to
201	rule 62-340.450(3), Florida Administrative Code, as described in
202	this subsection.
203	(f)  Activities associated with mining operations as
204	defined by and subject to ss. 378.201-378.212 and 378.701-
205	378.703 and included in a conceptual reclamation plan or
206	modification application submitted on or before the effective
207	date of this act shall be exempt from changes to rule 62-
208	340.450(3), Florida Administrative Code, as described in this
209	subsection.
210	Section 3.  Subsection (5) is added to section 161.041,
211	Florida Statutes, to read:
212	161.041  Permits required.--
213	(5)  When the department denies an application for a
214	permit, the department shall provide written notice to the
215	applicant. The notice shall include legal authority for the
216	denial of the permit and a citation to the applicable portions
217	of an ordinance, rule, or statute.
218	Section 4.  Subsection (2) of section 373.4141, Florida
219	Statutes, is amended to read:
220	373.4141  Permits; processing.--
221	(2)  A permit shall be approved or denied within 90 days
222	after receipt of the original application, the last item of
223	timely requested additional material, or the applicant's written
224	request to begin processing the permit application. When the
225	department or the district denies an application for a permit,
226	the department or the district shall provide written notice to
227	the applicant. The notice shall include legal authority for the
228	denial of the permit and a citation to the applicable portions
229	of an ordinance, rule, or statute.
230	Section 5.  Subsection (2) of section 403.087, Florida
231	Statutes, is amended to read:
232	403.087  Permits; general issuance; denial; revocation;
233	prohibition; penalty.--
234	(2)  The department shall adopt, and may amend or repeal,
235	rules for the issuance, denial, modification, and revocation of
236	permits under this section. When the department denies an
237	application for a permit, the department shall provide written
238	notice to the applicant. The notice shall include legal
239	authority for the denial of the permit and a citation to the
240	applicable portions of an ordinance, rule, or statute.
241	Section 6.  Subsection (4) is added to section 373.441,
242	Florida Statutes, to read:
243	373.441  Role of counties, municipalities, and local
244	pollution control programs in permit processing.--
245	(4)  In order to avoid duplication and inefficiency, no
246	local government shall enact or enforce a wetland regulatory
247	program except through delegation of the state environmental
248	resource permit program pursuant to s. 403.182.
249	Section 7.  The Division of Statutory Revision is directed
250	to substitute the date on which this act takes effect for the
251	phrase "the effective date of this act" wherever it occurs in
252	provisions of s. 373.4211, Florida Statutes, as amended by this
253	act, when preparing that section for publication in the next
254	edition of the Florida Statutes.
255	Section 8.  This act shall take effect upon becoming a law.

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