| 1 | A bill to be entitled |
| 2 | An act relating to environmental permitting; amending s. |
| 3 | 373.4132, F.S.; authorizing certain dry slip storage to be |
| 4 | constructed under specified conditions; amending s. |
| 5 | 373.414, F.S.; providing that certain lands added to a |
| 6 | conceptual reclamation plan are exempt from specified |
| 7 | rules; providing that certain lands may not be removed |
| 8 | from a conceptual reclamation plan area; amending s. |
| 9 | 373.4144, F.S.; providing legislative intent; revising |
| 10 | provisions requiring the Department of Environmental |
| 11 | Protection to develop and utilize a mechanism |
| 12 | consolidating federal and state wetland permitting |
| 13 | programs; authorizing implementation of a state |
| 14 | programmatic general permit or regional general permits by |
| 15 | the department and water management districts for certain |
| 16 | dredge and fill activities; specifying conditions |
| 17 | applicable to such permit or permits; amending s. |
| 18 | 373.4211, F.S.; revising the provisions concerning the |
| 19 | methodologies used to delineate the landward extent of |
| 20 | wetlands and surface waters; revising provisions |
| 21 | concerning the vegetative index used to delineate the |
| 22 | landward extent of wetlands and surface waters; providing |
| 23 | for permit modification under certain circumstances; |
| 24 | providing for certain declaratory statements from the |
| 25 | department; providing exemptions for certain permit |
| 26 | petitions and applications relating to specified |
| 27 | activities; amending ss. 161.041, 373.4141, and 403.087, |
| 28 | F.S.; requiring the department and water management |
| 29 | districts to provide applicants with written notice of |
| 30 | permit denial; providing criteria for such notice; |
| 31 | providing a directive to the Division of Statutory |
| 32 | Revision; providing an effective date. |
| 33 |
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| 34 | Be It Enacted by the Legislature of the State of Florida: |
| 35 |
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| 36 | Section 1. Section 373.4132, Florida Statutes, is amended |
| 37 | to read: |
| 38 | 373.4132 Dry storage facility permitting.--The governing |
| 39 | board or the department shall require a permit under this part, |
| 40 | including s. 373.4145, for the construction, alteration, |
| 41 | operation, maintenance, abandonment, or removal of a dry storage |
| 42 | facility for 10 or more vessels that is functionally associated |
| 43 | with a boat launching area; however, a development of regional |
| 44 | impact for which a development order has been issued under |
| 45 | chapter 380, before July 1, 1995, authorizing dry slip storage |
| 46 | that has yet to be constructed, is entitled to the number of dry |
| 47 | slips approved under the development order subject to the |
| 48 | condition that no more than 15 percent of the watercraft from |
| 49 | the dry slip storage may access the water each day. As part of |
| 50 | an applicant's demonstration that such a facility will not be |
| 51 | harmful to the water resources and will not be inconsistent with |
| 52 | the overall objectives of the district, the governing board or |
| 53 | department shall require the applicant to provide reasonable |
| 54 | assurance that the secondary impacts from the facility will not |
| 55 | cause adverse impacts to the functions of wetlands and surface |
| 56 | waters, including violations of state water quality standards |
| 57 | applicable to waters as defined in s. 403.031(13), and will meet |
| 58 | the public interest test of s. 373.414(1)(a), including the |
| 59 | potential adverse impacts to manatees. Nothing in This section |
| 60 | does not shall affect the authority of the governing board or |
| 61 | the department to regulate such secondary impacts under this |
| 62 | part for other regulated activities. |
| 63 | Section 2. Subsection (15) of section 373.414, Florida |
| 64 | Statutes, is amended to read: |
| 65 | 373.414 Additional criteria for activities in surface |
| 66 | waters and wetlands.-- |
| 67 | (15) Activities associated with mining operations as |
| 68 | defined by and subject to ss. 378.201-378.212 and 378.701- |
| 69 | 378.703 and included in a conceptual reclamation plan or |
| 70 | modification application submitted prior to July 1, 1996, shall |
| 71 | continue to be reviewed under the rules of the department |
| 72 | adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the |
| 73 | Florida Statutes 1983, as amended, the rules of the water |
| 74 | management districts under this part, and interagency |
| 75 | agreements, in effect on January 1, 1993. Such activities are |
| 76 | shall be exempt from rules adopted under pursuant to subsection |
| 77 | (9) and the statewide methodology ratified under pursuant to s. |
| 78 | 373.4211. As of January 1, 1994, such activities may be issued |
| 79 | permits authorizing construction for the life of the mine. Lands |
| 80 | added to a conceptual reclamation plan subject to this |
| 81 | subsection through a modification submitted after July 1, 1996, |
| 82 | which are contiguous to the conceptual reclamation plan area are |
| 83 | exempt from rules adopted under subsection (9) if the total |
| 84 | acreage of the conceptual reclamation plan is not increased |
| 85 | through the modification and the cumulative acreage added does |
| 86 | not exceed 3 percent of the conceptual reclamation plan area. |
| 87 | Lands that have been mined or disturbed by mining activities, |
| 88 | lands subject to a conservation easement under which the grantee |
| 89 | is a state or federal regulatory agency, and lands otherwise |
| 90 | preserved as a part of a permitting review may not be removed |
| 91 | from the conceptual reclamation plan area under this subsection. |
| 92 | Section 3. Section 373.4144, Florida Statutes, is amended |
| 93 | to read: |
| 94 | 373.4144 Federal environmental permitting.-- |
| 95 | (1) It is the intent of the Legislature to: |
| 96 | (a) Facilitate coordination and a more efficient process |
| 97 | of implementing regulatory duties and functions between the |
| 98 | Department of Environmental Protection, the water management |
| 99 | districts, the United States Army Corps of Engineers, the United |
| 100 | States Fish and Wildlife Service, the National Marine Fisheries |
| 101 | Service, the United States Environmental Protection Agency, the |
| 102 | Fish and Wildlife Conservation Commission, and other relevant |
| 103 | federal and state agencies. |
| 104 | (b) Authorize the Department of Environmental Protection |
| 105 | to obtain issuance by the United States Army Corps of Engineers, |
| 106 | pursuant to state and federal law and as set forth in this |
| 107 | section, of an expanded state programmatic general permit, or a |
| 108 | series of regional general permits, for categories of activities |
| 109 | in waters of the United States governed by the Clean Water Act |
| 110 | and in navigable waters under the Rivers and Harbors Act of 1899 |
| 111 | that are similar in nature, that will cause only minimal adverse |
| 112 | environmental effects when performed separately, and that will |
| 113 | have only minimal cumulative adverse effects on the environment. |
| 114 | (c) Utilize the mechanism of such a state general permit |
| 115 | or such regional general permits to eliminate overlapping |
| 116 | federal and state regulations that seek to protect the same |
| 117 | resource and to avoid duplication of permitting between the |
| 118 | United States Army Corps of Engineers and the department for |
| 119 | minor work located in waters of the United States, including |
| 120 | navigable waters, thus eliminating, in appropriate cases, the |
| 121 | need for a separate individual approval from the United States |
| 122 | Army Corps of Engineers while ensuring the most stringent |
| 123 | protection of wetland resources. |
| 124 | (d) Direct the department not to seek issuance of or take |
| 125 | any action pursuant to any such permit or permits unless such |
| 126 | conditions are at least as protective of the environment and |
| 127 | natural resources as existing state law under this part and |
| 128 | federal law under the Clean Water Act and the Rivers and Harbors |
| 129 | Act of 1899. |
| 130 | (e) Add slash pine and gallberry to the state list of |
| 131 | facultative species as an incentive for and contingent upon the |
| 132 | alignment of federal and state wetland jurisdictional |
| 133 | delineation, so that the alignment, which seeks to delineate the |
| 134 | same wetland communities, eliminates an impediment to obtaining |
| 135 | authorization from the United States Army Corps of Engineers for |
| 136 | a state programmatic general permit or regional general permits. |
| 137 | The department shall report annually to the Legislature on |
| 138 | efforts to eliminate impediments to achieving greater |
| 139 | efficiencies through expansion of a state programmatic general |
| 140 | permit or regional general permits. The department is directed |
| 141 | to develop, on or before October 1, 2005, a mechanism or plan to |
| 142 | consolidate, to the maximum extent practicable, the federal and |
| 143 | state wetland permitting programs. It is the intent of the |
| 144 | Legislature that all dredge and fill activities impacting 10 |
| 145 | acres or less of wetlands or waters, including navigable waters, |
| 146 | be processed by the state as part of the environmental resource |
| 147 | permitting program implemented by the department and the water |
| 148 | management districts. The resulting mechanism or plan shall |
| 149 | analyze and propose the development of an expanded state |
| 150 | programmatic general permit program in conjunction with the |
| 151 | United States Army Corps of Engineers pursuant to s. 404 of the |
| 152 | Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. |
| 153 | 1251 et seq., and s. 10 of the Rivers and Harbors Act of 1899. |
| 154 | Alternatively, or in combination with an expanded state |
| 155 | programmatic general permit, the mechanism or plan may propose |
| 156 | the creation of a series of regional general permits issued by |
| 157 | the United States Army Corps of Engineers pursuant to the |
| 158 | referenced statutes. All of the regional general permits must be |
| 159 | administered by the department or the water management districts |
| 160 | or their designees. |
| 161 | (2) In order to effectuate efficient wetland permitting |
| 162 | and avoid duplication, the department and water management |
| 163 | districts are authorized to implement a voluntary state |
| 164 | programmatic general permit for all dredge and fill activities |
| 165 | impacting 5 acres or less of wetlands or other surface waters, |
| 166 | including navigable waters, subject to agreement with the United |
| 167 | States Army Corps of Engineers, provided the general permit is |
| 168 | at least as protective of the environment and natural resources |
| 169 | as existing state law under this part and federal law under the |
| 170 | Clean Water Act and the Rivers and Harbors Act of 1899. The |
| 171 | department is directed to file with the Speaker of the House of |
| 172 | Representatives and the President of the Senate a report |
| 173 | proposing any required federal and state statutory changes that |
| 174 | would be necessary to accomplish the directives listed in this |
| 175 | section and to coordinate with the Florida Congressional |
| 176 | Delegation on any necessary changes to federal law to implement |
| 177 | the directives. |
| 178 | (3) Nothing in this section shall be construed to preclude |
| 179 | the department from pursuing a series of regional general |
| 180 | permits for construction activities in wetlands or surface |
| 181 | waters or complete assumption of federal permitting programs |
| 182 | regulating the discharge of dredged or fill material pursuant to |
| 183 | s. 404 of the Clean Water Act, Pub. L. No. 92-500, as amended, |
| 184 | 33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers and Harbors |
| 185 | Act of 1899, so long as the assumption encompasses all dredge |
| 186 | and fill activities in, on, or over jurisdictional wetlands or |
| 187 | waters, including navigable waters, within the state. |
| 188 | Section 4. Subsection (19) of section 373.4211, Florida |
| 189 | Statutes, is amended to read: |
| 190 | 373.4211 Ratification of chapter 17-340, Florida |
| 191 | Administrative Code, on the delineation of the landward extent |
| 192 | of wetlands and surface waters.--Pursuant to s. 373.421, the |
| 193 | Legislature ratifies chapter 17-340, Florida Administrative |
| 194 | Code, approved on January 13, 1994, by the Environmental |
| 195 | Regulation Commission, with the following changes: |
| 196 | (19)(a) Rule 17-340.450(3) is amended by adding, after the |
| 197 | species list, the following language: |
| 198 | "Within Monroe County and the Key Largo portion of Dade |
| 199 | County only, the following species shall be listed as |
| 200 | facultative: Alternanthera paronychioides, Byrsonima lucida, |
| 201 | Ernodea littoralis, Guapira discolor, Marnilkara bahamensis, |
| 202 | Pisonis rotundata, Pithecellobium keyensis, Pithecellobium |
| 203 | unquis-cati, Randia aculeata, Reynosia septentrionalis, and |
| 204 | Thrinax radiata." |
| 205 | (b) Pursuant to s. 373.421 and subject to the conditions |
| 206 | described in this paragraph, the Legislature ratifies the |
| 207 | changes to rule 62-340.450(3), Florida Administrative Code, |
| 208 | approved on February 23, 2006, by the Environmental Regulation |
| 209 | Commission that add slash pine (pinus elliotti) and gallberry |
| 210 | (flex glabral) to the list of facultative plants. However, this |
| 211 | ratification and the rule revision shall not take effect until |
| 212 | state and federal wetland jurisdictional delineation |
| 213 | methodologies are aligned. |
| 214 | (c) Surface water and wetland delineations identified and |
| 215 | approved by a permit issued under rules adopted under this part |
| 216 | prior to the effective date of this act shall remain valid until |
| 217 | expiration of such permit, notwithstanding the changes to rule |
| 218 | 62-340.450(3), Florida Administrative Code, as described in this |
| 219 | subsection. For purposes of this paragraph, the term "identified |
| 220 | and approved" means: |
| 221 | 1. The delineation was field verified by the permitting |
| 222 | agency and such verification was surveyed as part of the |
| 223 | application review process for the permit; or |
| 224 | 2. The delineation was field verified by the permitting |
| 225 | agency and approved pursuant to the permit. |
| 226 |
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| 227 | Where surface water and wetland delineations were not identified |
| 228 | and approved pursuant to the permit issued under rules adopted |
| 229 | under this part, delineations within the geographical area to |
| 230 | which such permit applies shall be determined pursuant to the |
| 231 | rules applicable at the time the permit was issued, |
| 232 | notwithstanding the changes to rule 62-340.450(3), Florida |
| 233 | Administrative Code, as described in this subsection. This |
| 234 | paragraph shall also apply to any modification of the permit |
| 235 | issued under rules adopted pursuant to this part that does not |
| 236 | constitute a substantial modification within the geographical |
| 237 | area to which the permit applies. |
| 238 | (d) Any declaratory statement issued by the department |
| 239 | under s. 403.914, 1984 Supplement to the Florida Statutes 1983, |
| 240 | as amended, pursuant to rules adopted thereunder, or by the |
| 241 | department or a water management district under s. 373.421, in |
| 242 | response to a petition filed on or before the effective date of |
| 243 | this act, shall continue to be valid for the duration of such |
| 244 | declaratory statement. Any such petition pending on or before |
| 245 | the effective date of this act shall be exempt from the changes |
| 246 | to rule 62-340.450(3), Florida Administrative Code, as described |
| 247 | in this subsection, and shall be subject to the provisions of |
| 248 | chapter 62-340, Florida Administrative Code, in effect prior to |
| 249 | such change. Activities proposed within the boundaries of a |
| 250 | valid declaratory statement issued pursuant to a petition |
| 251 | submitted to either the department or the relevant water |
| 252 | management district on or before the effective date of this act, |
| 253 | or a revalidated jurisdictional determination prior to its |
| 254 | expiration, shall continue thereafter to be exempt from the |
| 255 | changes to rule 62-340.450(3), Florida Administrative Code, as |
| 256 | described in this subsection. |
| 257 | (e) A permit application under this part for dredging and |
| 258 | filling or other activity that is pending on or before the |
| 259 | effective date of this act shall be exempt from the changes to |
| 260 | rule 62-340.450(3), Florida Administrative Code, as described in |
| 261 | this subsection. |
| 262 | (f) Activities associated with mining operations as |
| 263 | defined by and subject to ss. 378.201-378.212 and 378.701- |
| 264 | 378.703 and included in a conceptual reclamation plan or |
| 265 | modification application submitted on or before the effective |
| 266 | date of this act shall be exempt from changes to rule 62- |
| 267 | 340.450(3), Florida Administrative Code, as described in this |
| 268 | subsection. |
| 269 | Section 5. Subsection (5) is added to section 161.041, |
| 270 | Florida Statutes, to read: |
| 271 | 161.041 Permits required.-- |
| 272 | (5) When the department denies an application for a |
| 273 | permit, the department shall provide written notice to the |
| 274 | applicant. The notice shall include legal authority for the |
| 275 | denial of the permit and a citation to the applicable portions |
| 276 | of an ordinance, rule, or statute. |
| 277 | Section 6. Subsection (2) of section 373.4141, Florida |
| 278 | Statutes, is amended to read: |
| 279 | 373.4141 Permits; processing.-- |
| 280 | (2) A permit shall be approved or denied within 90 days |
| 281 | after receipt of the original application, the last item of |
| 282 | timely requested additional material, or the applicant's written |
| 283 | request to begin processing the permit application. When the |
| 284 | department or the district denies an application for a permit, |
| 285 | the department or the district shall provide written notice to |
| 286 | the applicant. The notice shall include legal authority for the |
| 287 | denial of the permit and a citation to the applicable portions |
| 288 | of an ordinance, rule, or statute. |
| 289 | Section 7. Subsection (2) of section 403.087, Florida |
| 290 | Statutes, is amended to read: |
| 291 | 403.087 Permits; general issuance; denial; revocation; |
| 292 | prohibition; penalty.-- |
| 293 | (2) The department shall adopt, and may amend or repeal, |
| 294 | rules for the issuance, denial, modification, and revocation of |
| 295 | permits under this section. When the department denies an |
| 296 | application for a permit, the department shall provide written |
| 297 | notice to the applicant. The notice shall include legal |
| 298 | authority for the denial of the permit and a citation to the |
| 299 | applicable portions of an ordinance, rule, or statute. |
| 300 | Section 8. The Division of Statutory Revision is directed |
| 301 | to substitute the date on which this act takes effect for the |
| 302 | phrase "the effective date of this act" wherever it occurs in |
| 303 | provisions of s. 373.4211, Florida Statutes, as amended by this |
| 304 | act, when preparing that section for publication in the next |
| 305 | edition of the Florida Statutes. |
| 306 | Section 9. This act shall take effect upon becoming a law. |