Florida Senate - 2008 SB 1242

By Senator Jones

13-02594A-08 20081242__

A bill to be entitled

An act relating to environmental permitting; requiring the

Department of Environmental Protection to conduct a study

and implement a plan to provide parity in salaries for

permitting staff and submit such plan to the President of

the Senate, the Speaker of the House of Representatives,

and the Legislative Committee on Intergovernmental

Relations; requiring the department to develop a plan to

implement the remaining phases of an e-permitting program

and submit such plan to the President of the Senate, the

Speaker of the House of Representatives, and the

Legislative Committee on Intergovernmental Relations;

prohibiting local governments from specifying the format

for a determination made by the department or a water

management district that a proposed project meets

authorization requirements; amending s. 403.061, F.S.;

revising the department's powers and duties to include

maintaining a list of projects or activities that

applicants may consider when developing proposals for

certain projects or activities; amending s. 403.813, F.S.;

prohibiting a local government from requiring further

verification from the department for certain projects that

are exempt from permit requirements other than a general

permit; revising a provision relating to the replacement

or repair of existing docks and piers; providing an

effective date.

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

Section 1. The Department of Environmental Protection shall

conduct a study to develop a plan that will implement parity in

salaries for environmental permitting staff. The department shall

phase in the plan over 3 years, beginning with the 2009-2010

fiscal year. The plan must include salaries that are comparable

to salaries for similar positions within water management

districts, local governments, and the marine construction

industry. The plan must enable the department to obtain and

retain qualified staff who are involved with environmental

resource permitting and related wetlands permit programs at the

state and district levels. The department shall submit the plan

to the President of the Senate, the Speaker of the House of

Representatives, and the Legislative Committee on

Intergovernmental Relations by November 1, 2008.

Section 2. The Department of Environmental Protection shall

develop a project management plan that implements the remaining

phases of an e-permitting program that allows for timely

submittal, processing, and exchange of information relating to

permit applications and compliance. The plan must include an

implementation timetable, estimated costs, and transaction fees.

The department shall submit the plan to the President of the

Senate, the Speaker of the House of Representatives, and the

Legislative Committee on Intergovernmental Relations by November

1, 2008.

Section 3. Notwithstanding any other provisions of law to

the contrary, a local government may not specify the format for a

determination made by the Department of Environmental Protection

or a water management district that a project meets the

requirements for authorization under chapter 253, chapter 373, or

chapter 403, Florida Statutes.

Section 4. Present subsection (40) of section 403.061,

Florida Statutes, is redesignated as subsection (41), and a new

subsection (40) is added to that section to read:

403.061 Department; powers and duties.--The department

shall have the power and the duty to control and prohibit

pollution of air and water in accordance with the law and rules

adopted and promulgated by it, for this purpose to:

(40) Maintain a list of projects or activities that

applicants may consider when developing proposals to meet the

requirements of chapter 253, chapter 373, or this chapter. The

contents of such a list are not a rule as defined in s.

120.52(15), and listing a specific project or activity does not

imply approval by the department for such project or activity.

Each county government shall develop an inventory of projects or

activities for inclusion on the list by obtaining input from

local stakeholder groups in the public, private, and nonprofit

sectors, including local governments, port authorities, marine

contractors, other representatives of the marine construction

industry, environmental or conservation organizations, and other

interested parties.

The department shall implement such programs in conjunction with

its other powers and duties and shall place special emphasis on

reducing and eliminating contamination that presents a threat to

humans, animals or plants, or to the environment.

Section 5. Subsections (2) and (3) of section 403.813,

Florida Statutes, are amended to read:

403.813 Permits issued at district centers; exceptions.--

(2) A permit is not required under this chapter, chapter

373, chapter 61-691, Laws of Florida, or chapter 25214 or chapter

25270, 1949, Laws of Florida, and a local government may not

require further verification from the department for activities

associated with the following types of projects; however, except

as otherwise provided in this subsection, nothing in this

subsection does not relieve relieves an applicant from any

requirement to obtain permission to use or occupy lands owned by

the Board of Trustees of the Internal Improvement Trust Fund or

any water management district in its governmental or proprietary

capacity or from complying with applicable local pollution

control programs authorized under this chapter or other

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requirements of county and municipal governments:

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(a) The installation of overhead transmission lines, with

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support structures which are not constructed in waters of the

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state and which do not create a navigational hazard.

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(b) The installation and repair of mooring pilings and

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dolphins associated with private docking facilities or piers and

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the installation of private docks, piers and recreational docking

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facilities, or piers and recreational docking facilities of local

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governmental entities when the local governmental entity's

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activities will not take place in any manatee habitat, any of

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which docks:

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1. Has 500 square feet or less of over-water surface area

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for a dock which is located in an area designated as Outstanding

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Florida Waters or 1,000 square feet or less of over-water surface

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area for a dock which is located in an area which is not

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designated as Outstanding Florida Waters;

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2. Is constructed on or held in place by pilings or is a

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floating dock which is constructed so as not to involve filling

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or dredging other than that necessary to install the pilings;

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3. Shall not substantially impede the flow of water or

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create a navigational hazard;

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4. Is used for recreational, noncommercial activities

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associated with the mooring or storage of boats and boat

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paraphernalia; and

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5. Is the sole dock constructed pursuant to this exemption

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as measured along the shoreline for a distance of 65 feet, unless

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the parcel of land or individual lot as platted is less than 65

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feet in length along the shoreline, in which case there may be

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one exempt dock allowed per parcel or lot.

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Nothing in this paragraph shall prohibit the department from

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taking appropriate enforcement action pursuant to this chapter to

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abate or prohibit any activity otherwise exempt from permitting

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pursuant to this paragraph if the department can demonstrate that

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the exempted activity has caused water pollution in violation of

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this chapter.

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specifications of boat ramps on artificial bodies of water where

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navigational access to the proposed ramp exists or the

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installation of boat ramps open to the public in any waters of

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the state where navigational access to the proposed ramp exists

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and where the construction of the proposed ramp will be less than

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30 feet wide and will involve the removal of less than 25 cubic

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yards of material from the waters of the state, and the

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maintenance to design specifications of such ramps; however, the

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material to be removed shall be placed upon a self-contained

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upland site so as to prevent the escape of the spoil material

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into the waters of the state.

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(d) The replacement or repair of existing docks and piers,

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except that no fill material is to be used and provided that the

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replacement or repaired dock or pier is in the same location and

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the size does not exceed of the same configuration and dimensions

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as the dock or pier being replaced or repaired.

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(e) The restoration of seawalls at their previous locations

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or upland of, or within 1 foot waterward of, their previous

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locations. However, this shall not affect the permitting

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requirements of chapter 161, and department rules shall clearly

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indicate that this exception does not constitute an exception

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from the permitting requirements of chapter 161.

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(f) The performance of maintenance dredging of existing

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manmade canals, channels, intake and discharge structures, and

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previously dredged portions of natural water bodies within

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drainage rights-of-way or drainage easements which have been

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recorded in the public records of the county, where the spoil

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material is to be removed and deposited on a self-contained,

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upland spoil site which will prevent the escape of the spoil

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material into the waters of the state, provided that no more

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dredging is to be performed than is necessary to restore the

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canals, channels, and intake and discharge structures, and

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previously dredged portions of natural water bodies, to original

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design specifications or configurations, provided that the work

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is conducted in compliance with s. 370.12(2)(d), provided that no

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significant impacts occur to previously undisturbed natural

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areas, and provided that control devices for return flow and best

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management practices for erosion and sediment control are

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utilized to prevent bank erosion and scouring and to prevent

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turbidity, dredged material, and toxic or deleterious substances

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from discharging into adjacent waters during maintenance

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dredging. Further, for maintenance dredging of previously dredged

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portions of natural water bodies within recorded drainage rights-

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of-way or drainage easements, an entity that seeks an exemption

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must notify the department or water management district, as

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applicable, at least 30 days prior to dredging and provide

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documentation of original design specifications or configurations

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where such exist. This exemption applies to all canals and

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previously dredged portions of natural water bodies within

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recorded drainage rights-of-way or drainage easements constructed

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prior to April 3, 1970, and to those canals and previously

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dredged portions of natural water bodies constructed on or after

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April 3, 1970, pursuant to all necessary state permits. This

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exemption does not apply to the removal of a natural or manmade

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barrier separating a canal or canal system from adjacent waters.

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When no previous permit has been issued by the Board of Trustees

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of the Internal Improvement Trust Fund or the United States Army

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Corps of Engineers for construction or maintenance dredging of

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the existing manmade canal or intake or discharge structure, such

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maintenance dredging shall be limited to a depth of no more than

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5 feet below mean low water. The Board of Trustees of the

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Internal Improvement Trust Fund may fix and recover from the

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permittee an amount equal to the difference between the fair

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market value and the actual cost of the maintenance dredging for

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material removed during such maintenance dredging. However, no

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charge shall be exacted by the state for material removed during

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such maintenance dredging by a public port authority. The

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removing party may subsequently sell such material; however,

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proceeds from such sale that exceed the costs of maintenance

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dredging shall be remitted to the state and deposited in the

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Internal Improvement Trust Fund.

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(g) The maintenance of existing insect control structures,

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dikes, and irrigation and drainage ditches, provided that spoil

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material is deposited on a self-contained, upland spoil site

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which will prevent the escape of the spoil material into waters

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of the state. In the case of insect control structures, if the

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cost of using a self-contained upland spoil site is so excessive,

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as determined by the Department of Health, pursuant to s.

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403.088(1), that it will inhibit proposed insect control, then-

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existing spoil sites or dikes may be used, upon notification to

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the department. In the case of insect control where upland spoil

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sites are not used pursuant to this exemption, turbidity control

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devices shall be used to confine the spoil material discharge to

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that area previously disturbed when the receiving body of water

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is used as a potable water supply, is designated as shellfish

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harvesting waters, or functions as a habitat for commercially or

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recreationally important shellfish or finfish. In all cases, no

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more dredging is to be performed than is necessary to restore the

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dike or irrigation or drainage ditch to its original design

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specifications.

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(h) The repair or replacement of existing functional pipes

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or culverts the purpose of which is the discharge or conveyance

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of stormwater. In all cases, the invert elevation, the diameter,

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and the length of the culvert shall not be changed. However, the

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material used for the culvert may be different from the original.

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(i) The construction of private docks of 1,000 square feet

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or less of over-water surface area and seawalls in artificially

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created waterways where such construction will not violate

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existing water quality standards, impede navigation, or affect

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flood control. This exemption does not apply to the construction

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of vertical seawalls in estuaries or lagoons unless the proposed

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construction is within an existing manmade canal where the

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shoreline is currently occupied in whole or part by vertical

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seawalls.

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(j) The construction and maintenance of swales.

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(k) The installation of aids to navigation and buoys

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associated with such aids, provided the devices are marked

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pursuant to s. 327.40.

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(l) The replacement or repair of existing open-trestle foot

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bridges and vehicular bridges that are 100 feet or less in length

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and two lanes or less in width, provided that no more dredging or

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filling of submerged lands is performed other than that which is

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necessary to replace or repair pilings and that the structure to

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be replaced or repaired is the same length, the same

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configuration, and in the same location as the original bridge.

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No debris from the original bridge shall be allowed to remain in

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the waters of the state.

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(m) The installation of subaqueous transmission and

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distribution lines laid on, or embedded in, the bottoms of waters

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in the state, except in Class I and Class II waters and aquatic

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preserves, provided no dredging or filling is necessary.

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(n) The replacement or repair of subaqueous transmission

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and distribution lines laid on, or embedded in, the bottoms of

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waters of the state.

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(o) The construction of private seawalls in wetlands or

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other surface waters where such construction is between and

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adjoins at both ends existing seawalls; follows a continuous and

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uniform seawall construction line with the existing seawalls; is

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no more than 150 feet in length; and does not violate existing

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water quality standards, impede navigation, or affect flood

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control. However, in estuaries and lagoons the construction of

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vertical seawalls is limited to the circumstances and purposes

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stated in s. 373.414(5)(b)1.-4. This paragraph does not affect

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the permitting requirements of chapter 161, and department rules

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must clearly indicate that this exception does not constitute an

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exception from the permitting requirements of chapter 161.

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(p) The restoration of existing insect control impoundment

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dikes which are less than 100 feet in length. Such impoundments

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shall be connected to tidally influenced waters for 6 months each

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year beginning September 1 and ending February 28 if feasible or

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operated in accordance with an impoundment management plan

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approved by the department. A dike restoration may involve no

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more dredging than is necessary to restore the dike to its

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original design specifications. For the purposes of this

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paragraph, restoration does not include maintenance of

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impoundment dikes of operating insect control impoundments.

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(q) The construction, operation, or maintenance of

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stormwater management facilities which are designed to serve

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single-family residential projects, including duplexes,

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triplexes, and quadruplexes, if they are less than 10 acres total

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land and have less than 2 acres of impervious surface and if the

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facilities:

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1. Comply with all regulations or ordinances applicable to

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stormwater management and adopted by a city or county;

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2. Are not part of a larger common plan of development or

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sale; and

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3. Discharge into a stormwater discharge facility exempted

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or permitted by the department under this chapter which has

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sufficient capacity and treatment capability as specified in this

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chapter and is owned, maintained, or operated by a city, county,

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special district with drainage responsibility, or water

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management district; however, this exemption does not authorize

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discharge to a facility without the facility owner's prior

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written consent.

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(r) The removal of aquatic plants, the removal of tussocks,

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the associated replanting of indigenous aquatic plants, and the

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associated removal from lakes of organic detrital material when

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such planting or removal is performed and authorized by permit or

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exemption granted under s. 369.20 or s. 369.25, provided that:

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1. Organic detrital material that exists on the surface of

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natural mineral substrate shall be allowed to be removed to a

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depth of 3 feet or to the natural mineral substrate, whichever is

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less;

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2. All material removed pursuant to this paragraph shall be

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deposited in an upland site in a manner that will prevent the

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reintroduction of the material into waters in the state except

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when spoil material is permitted to be used to create wildlife

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islands in freshwater bodies of the state when a governmental

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entity is permitted pursuant to s. 369.20 to create such islands

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as a part of a restoration or enhancement project;

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3. All activities are performed in a manner consistent with

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state water quality standards; and

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4. No activities under this exemption are conducted in

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wetland areas, as defined by s. 373.019(25), which are supported

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by a natural soil as shown in applicable United States Department

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of Agriculture county soil surveys, except when a governmental

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entity is permitted pursuant to s. 369.20 to conduct such

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activities as a part of a restoration or enhancement project.

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The department may not adopt implementing rules for this

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paragraph, notwithstanding any other provision of law.

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(s) The construction, installation, operation, or

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maintenance of floating vessel platforms or floating boat lifts,

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provided that such structures:

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1. Float at all times in the water for the sole purpose of

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supporting a vessel so that the vessel is out of the water when

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not in use;

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2. Are wholly contained within a boat slip previously

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permitted under ss. 403.91-403.929, 1984 Supplement to the

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Florida Statutes 1983, as amended, or part IV of chapter 373, or

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do not exceed a combined total of 500 square feet, or 200 square

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feet in an Outstanding Florida Water, when associated with a dock

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that is exempt under this subsection or associated with a

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permitted dock with no defined boat slip or attached to a

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bulkhead on a parcel of land where there is no other docking

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structure;

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3. Are not used for any commercial purpose or for mooring

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vessels that remain in the water when not in use, and do not

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substantially impede the flow of water, create a navigational

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hazard, or unreasonably infringe upon the riparian rights of

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adjacent property owners, as defined in s. 253.141;

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4. Are constructed and used so as to minimize adverse

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impacts to submerged lands, wetlands, shellfish areas, aquatic

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plant and animal species, and other biological communities,

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including locating such structures in areas where seagrasses are

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least dense adjacent to the dock or bulkhead; and

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5. Are not constructed in areas specifically prohibited for

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boat mooring under conditions of a permit issued in accordance

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with ss. 403.91-403.929, 1984 Supplement to the Florida Statutes

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1983, as amended, or part IV of chapter 373, or other form of

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authorization issued by a local government.

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Structures that qualify for this exemption are relieved from any

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requirement to obtain permission to use or occupy lands owned by

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the Board of Trustees of the Internal Improvement Trust Fund and,

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with the exception of those structures attached to a bulkhead on

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a parcel of land where there is no docking structure, shall not

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be subject to any more stringent permitting requirements,

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registration requirements, or other regulation by any local

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government. Local governments may require either permitting or

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one-time registration of floating vessel platforms to be attached

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to a bulkhead on a parcel of land where there is no other docking

369

structure as necessary to ensure compliance with local

370

ordinances, codes, or regulations. Local governments may require

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either permitting or one-time registration of all other floating

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vessel platforms as necessary to ensure compliance with the

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exemption criteria in this section; to ensure compliance with

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local ordinances, codes, or regulations relating to building or

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zoning, which are no more stringent than the exemption criteria

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in this section or address subjects other than subjects addressed

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by the exemption criteria in this section; and to ensure proper

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installation, maintenance, and precautionary or evacuation action

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following a tropical storm or hurricane watch of a floating

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vessel platform or floating boat lift that is proposed to be

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attached to a bulkhead or parcel of land where there is no other

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docking structure. The exemption provided in this paragraph shall

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be in addition to the exemption provided in paragraph (b). The

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department shall adopt a general permit by rule for the

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construction, installation, operation, or maintenance of those

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floating vessel platforms or floating boat lifts that do not

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qualify for the exemption provided in this paragraph but do not

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cause significant adverse impacts to occur individually or

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cumulatively. The issuance of such general permit shall also

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constitute permission to use or occupy lands owned by the Board

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of Trustees of the Internal Improvement Trust Fund. No local

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government shall impose a more stringent regulation, permitting

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requirement, registration requirement, or other regulation

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covered by such general permit. Local governments may require

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either permitting or one-time registration of floating vessel

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platforms as necessary to ensure compliance with the general

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permit in this section; to ensure compliance with local

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ordinances, codes, or regulations relating to building or zoning

399

that are no more stringent than the general permit in this

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section; and to ensure proper installation and maintenance of a

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floating vessel platform or floating boat lift that is proposed

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to be attached to a bulkhead or parcel of land where there is no

403

other docking structure.

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(t) The repair, stabilization, or paving of existing county

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maintained roads and the repair or replacement of bridges that

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are part of the roadway, within the Northwest Florida Water

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Management District and the Suwannee River Water Management

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District, provided:

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1. The road and associated bridge were in existence and in

410

use as a public road or bridge, and were maintained by the county

411

as a public road or bridge on or before January 1, 2002;

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2. The construction activity does not realign the road or

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expand the number of existing traffic lanes of the existing road;

414

however, the work may include the provision of safety shoulders,

415

clearance of vegetation, and other work reasonably necessary to

416

repair, stabilize, pave, or repave the road, provided that the

417

work is constructed by generally accepted engineering standards;

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3. The construction activity does not expand the existing

419

width of an existing vehicular bridge in excess of that

420

reasonably necessary to properly connect the bridge with the road

421

being repaired, stabilized, paved, or repaved to safely

422

accommodate the traffic expected on the road, which may include

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expanding the width of the bridge to match the existing connected

424

road. However, no debris from the original bridge shall be

425

allowed to remain in waters of the state, including wetlands;

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4. Best management practices for erosion control shall be

427

employed as necessary to prevent water quality violations;

428

5. Roadside swales or other effective means of stormwater

429

treatment must be incorporated as part of the project;

430

6. No more dredging or filling of wetlands or water of the

431

state is performed than that which is reasonably necessary to

432

repair, stabilize, pave, or repave the road or to repair or

433

replace the bridge, in accordance with generally accepted

434

engineering standards; and

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7. Notice of intent to use the exemption is provided to the

436

department, if the work is to be performed within the Northwest

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Florida Water Management District, or to the Suwannee River Water

438

Management District, if the work is to be performed within the

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Suwannee River Water Management District, 30 days prior to

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performing any work under the exemption.

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Within 30 days after this act becomes a law, the department shall

443

initiate rulemaking to adopt a no fee general permit for the

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repair, stabilization, or paving of existing roads that are

445

maintained by the county and the repair or replacement of bridges

446

that are part of the roadway where such activities do not cause

447

significant adverse impacts to occur individually or

448

cumulatively. The general permit shall apply statewide and, with

449

no additional rulemaking required, apply to qualified projects

450

reviewed by the Suwannee River Water Management District, the St.

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Johns River Water Management District, the Southwest Florida

452

Water Management District, and the South Florida Water Management

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District under the division of responsibilities contained in the

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operating agreements applicable to part IV of chapter 373. Upon

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adoption, this general permit shall, pursuant to the provisions

456

of subsection (3), supersede and replace the exemption in this

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paragraph.

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(u) Notwithstanding any provision to the contrary in this

459

subsection, a permit or other authorization under chapter 253,

460

chapter 369, chapter 373, or this chapter is not required for an

461

individual residential property owner for the removal of organic

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detrital material from freshwater rivers or lakes that have a

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natural sand or rocky substrate and that are not Aquatic

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Preserves or for the associated removal and replanting of aquatic

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vegetation for the purpose of environmental enhancement,

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providing that:

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1. No activities under this exemption are conducted in

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wetland areas, as defined by s. 373.019(25), which are supported

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by a natural soil as shown in applicable United States Department

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of Agriculture county soil surveys.

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2. No filling or peat mining is allowed.

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3. No removal of native wetland trees, including, but not

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limited to, ash, bay, cypress, gum, maple, or tupelo, occurs.

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4. When removing organic detrital material, no portion of

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the underlying natural mineral substrate or rocky substrate is

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removed.

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5. Organic detrital material and plant material removed is

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deposited in an upland site in a manner that will not cause water

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quality violations.

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6. All activities are conducted in such a manner, and with

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appropriate turbidity controls, so as to prevent any water

482

quality violations outside the immediate work area.

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7. Replanting with a variety of aquatic plants native to

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the state shall occur in a minimum of 25 percent of the

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preexisting vegetated areas where organic detrital material is

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removed, except for areas where the material is removed to bare

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rocky substrate; however, an area may be maintained clear of

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vegetation as an access corridor. The access corridor width may

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not exceed 50 percent of the property owner's frontage or 50

490

feet, whichever is less, and may be a sufficient length waterward

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to create a corridor to allow access for a boat or swimmer to

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reach open water. Replanting must be at a minimum density of 2

493

feet on center and be completed within 90 days after removal of

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existing aquatic vegetation, except that under dewatered

495

conditions replanting must be completed within 90 days after

496

reflooding. The area to be replanted must extend waterward from

497

the ordinary high water line to a point where normal water depth

498

would be 3 feet or the preexisting vegetation line, whichever is

499

less. Individuals are required to make a reasonable effort to

500

maintain planting density for a period of 6 months after

501

replanting is complete, and the plants, including naturally

502

recruited native aquatic plants, must be allowed to expand and

503

fill in the revegetation area. Native aquatic plants to be used

504

for revegetation must be salvaged from the enhancement project

505

site or obtained from an aquatic plant nursery regulated by the

506

Department of Agriculture and Consumer Services. Plants that are

507

not native to the state may not be used for replanting.

508

8. No activity occurs any farther than 100 feet waterward

509

of the ordinary high water line, and all activities must be

510

designed and conducted in a manner that will not unreasonably

511

restrict or infringe upon the riparian rights of adjacent upland

512

riparian owners.

513

9. The person seeking this exemption notifies the

514

applicable department district office in writing at least 30 days

515

before commencing work and allows the department to conduct a

516

preconstruction site inspection. Notice must include an organic-

517

detrital-material removal and disposal plan and, if applicable, a

518

vegetation-removal and revegetation plan.

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10. The department is provided written certification of

520

compliance with the terms and conditions of this paragraph within

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30 days after completion of any activity occurring under this

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exemption.

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(3) The provisions of subsection (2) are superseded by

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general permits established pursuant to ss. 373.118 and 403.814

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which include the same activities. Until such time as general

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permits are established, or if should general permits are be

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suspended or repealed, the exemptions under subsection (2) shall

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remain or shall be reestablished in full force and effect.

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Section 6. This act shall take effect upon becoming a law.

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