Florida Senate - 2008 CS for SB 1242

By the Committee on Environmental Preservation and Conservation; and Senators Jones and Bennett

592-06008-08 20081242c1

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 requiring the

production of certain written documentation from the

Department of Environmental Protection or a water

management district showing that a project does not

require a particular permit; 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 require the production

of written documentation from the Department of Environmental

Protection or a water management district showing that a project

does not require a permit pursuant to s. 403.813(2), 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

100

control programs authorized under this chapter or other

101

requirements of county and municipal governments:

102

(a) The installation of overhead transmission lines, with

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support structures which are not constructed in waters of the

104

state and which do not create a navigational hazard.

105

(b) The installation and repair of mooring pilings and

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dolphins associated with private docking facilities or piers and

107

the installation of private docks, piers and recreational docking

108

facilities, or piers and recreational docking facilities of local

109

governmental entities when the local governmental entity's

110

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

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which docks:

112

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

113

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

114

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

115

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

116

designated as Outstanding Florida Waters;

117

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

118

floating dock which is constructed so as not to involve filling

119

or dredging other than that necessary to install the pilings;

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3. Shall not substantially impede the flow of water or

121

create a navigational hazard;

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4. Is used for recreational, noncommercial activities

123

associated with the mooring or storage of boats and boat

124

paraphernalia; and

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5. Is the sole dock constructed pursuant to this exemption

126

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

127

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

136

this chapter.

137

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specifications of boat ramps on artificial bodies of water where

139

navigational access to the proposed ramp exists or the

140

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

141

the state where navigational access to the proposed ramp exists

142

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

143

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

144

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

145

maintenance to design specifications of such ramps; however, the

146

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

147

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

148

into the waters of the state.

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

150

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

151

replacement or repaired dock or pier is in approximately the same

152

location and no larger in size and in substantially the same

153

configuration and dimensions as the existing dock or pier being

154

replaced or repaired..

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(e) The restoration of seawalls at their previous locations

156

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

157

locations. However, this shall not affect the permitting

158

requirements of chapter 161, and department rules shall clearly

159

indicate that this exception does not constitute an exception

160

from the permitting requirements of chapter 161.

161

(f) The performance of maintenance dredging of existing

162

manmade canals, channels, intake and discharge structures, and

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previously dredged portions of natural water bodies within

164

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

165

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

166

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

167

upland spoil site which will prevent the escape of the spoil

168

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

169

dredging is to be performed than is necessary to restore the

170

canals, channels, and intake and discharge structures, and

171

previously dredged portions of natural water bodies, to original

172

design specifications or configurations, provided that the work

173

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

176

management practices for erosion and sediment control are

177

utilized to prevent bank erosion and scouring and to prevent

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turbidity, dredged material, and toxic or deleterious substances

179

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-

182

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

183

must notify the department or water management district, as

184

applicable, at least 30 days prior to dredging and provide

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documentation of original design specifications or configurations

186

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

189

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

192

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

193

barrier separating a canal or canal system from adjacent waters.

194

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

195

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

201

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

208

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,

211

dikes, and irrigation and drainage ditches, provided that spoil

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

213

which will prevent the escape of the spoil material into waters

214

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

215

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

216

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

217

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

218

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

219

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

220

sites are not used pursuant to this exemption, turbidity control

221

devices shall be used to confine the spoil material discharge to

222

that area previously disturbed when the receiving body of water

223

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

225

recreationally important shellfish or finfish. In all cases, no

226

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

227

dike or irrigation or drainage ditch to its original design

228

specifications.

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(h) The repair or replacement of existing functional pipes

230

or culverts the purpose of which is the discharge or conveyance

231

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

240

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

245

associated with such aids, provided the devices are marked

246

pursuant to s. 327.40.

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

248

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

249

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

250

filling of submerged lands is performed other than that which is

251

necessary to replace or repair pilings and that the structure to

252

be replaced or repaired is the same length, the same

253

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.

256

(m) The installation of subaqueous transmission and

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

258

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

269

control. However, in estuaries and lagoons the construction of

270

vertical seawalls is limited to the circumstances and purposes

271

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

272

the permitting requirements of chapter 161, and department rules

273

must clearly indicate that this exception does not constitute an

274

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

277

shall be connected to tidally influenced waters for 6 months each

278

year beginning September 1 and ending February 28 if feasible or

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operated in accordance with an impoundment management plan

280

approved by the department. A dike restoration may involve no

281

more dredging than is necessary to restore the dike to its

282

original design specifications. For the purposes of this

283

paragraph, restoration does not include maintenance of

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impoundment dikes of operating insect control impoundments.

285

(q) The construction, operation, or maintenance of

286

stormwater management facilities which are designed to serve

287

single-family residential projects, including duplexes,

288

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

289

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

290

facilities:

291

1. Comply with all regulations or ordinances applicable to

292

stormwater management and adopted by a city or county;

293

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

294

sale; and

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3. Discharge into a stormwater discharge facility exempted

296

or permitted by the department under this chapter which has

297

sufficient capacity and treatment capability as specified in this

298

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

299

special district with drainage responsibility, or water

300

management district; however, this exemption does not authorize

301

discharge to a facility without the facility owner's prior

302

written consent.

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

304

the associated replanting of indigenous aquatic plants, and the

305

associated removal from lakes of organic detrital material when

306

such planting or removal is performed and authorized by permit or

307

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

308

1. Organic detrital material that exists on the surface of

309

natural mineral substrate shall be allowed to be removed to a

310

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

311

less;

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2. All material removed pursuant to this paragraph shall be

313

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

314

reintroduction of the material into waters in the state except

315

when spoil material is permitted to be used to create wildlife

316

islands in freshwater bodies of the state when a governmental

317

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

318

as a part of a restoration or enhancement project;

319

3. All activities are performed in a manner consistent with

320

state water quality standards; and

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4. No activities under this exemption are conducted in

322

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

323

by a natural soil as shown in applicable United States Department

324

of Agriculture county soil surveys, except when a governmental

325

entity is permitted pursuant to s. 369.20 to conduct such

326

activities as a part of a restoration or enhancement project.

327

328

The department may not adopt implementing rules for this

329

paragraph, notwithstanding any other provision of law.

330

(s) The construction, installation, operation, or

331

maintenance of floating vessel platforms or floating boat lifts,

332

provided that such structures:

333

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

334

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

335

not in use;

336

2. Are wholly contained within a boat slip previously

337

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

338

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

339

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

340

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

341

that is exempt under this subsection or associated with a

342

permitted dock with no defined boat slip or attached to a

343

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

344

structure;

345

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

346

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

347

substantially impede the flow of water, create a navigational

348

hazard, or unreasonably infringe upon the riparian rights of

349

adjacent property owners, as defined in s. 253.141;

350

4. Are constructed and used so as to minimize adverse

351

impacts to submerged lands, wetlands, shellfish areas, aquatic

352

plant and animal species, and other biological communities,

353

including locating such structures in areas where seagrasses are

354

least dense adjacent to the dock or bulkhead; and

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5. Are not constructed in areas specifically prohibited for

356

boat mooring under conditions of a permit issued in accordance

357

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

358

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

359

authorization issued by a local government.

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361

Structures that qualify for this exemption are relieved from any

362

requirement to obtain permission to use or occupy lands owned by

363

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

364

with the exception of those structures attached to a bulkhead on

365

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

366

be subject to any more stringent permitting requirements,

367

registration requirements, or other regulation by any local

368

government. Local governments may require either permitting or

369

one-time registration of floating vessel platforms to be attached

370

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

371

structure as necessary to ensure compliance with local

372

ordinances, codes, or regulations. Local governments may require

373

either permitting or one-time registration of all other floating

374

vessel platforms as necessary to ensure compliance with the

375

exemption criteria in this section; to ensure compliance with

376

local ordinances, codes, or regulations relating to building or

377

zoning, which are no more stringent than the exemption criteria

378

in this section or address subjects other than subjects addressed

379

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

380

installation, maintenance, and precautionary or evacuation action

381

following a tropical storm or hurricane watch of a floating

382

vessel platform or floating boat lift that is proposed to be

383

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

384

docking structure. The exemption provided in this paragraph shall

385

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

386

department shall adopt a general permit by rule for the

387

construction, installation, operation, or maintenance of those

388

floating vessel platforms or floating boat lifts that do not

389

qualify for the exemption provided in this paragraph but do not

390

cause significant adverse impacts to occur individually or

391

cumulatively. The issuance of such general permit shall also

392

constitute permission to use or occupy lands owned by the Board

393

of Trustees of the Internal Improvement Trust Fund. No local

394

government shall impose a more stringent regulation, permitting

395

requirement, registration requirement, or other regulation

396

covered by such general permit. Local governments may require

397

either permitting or one-time registration of floating vessel

398

platforms as necessary to ensure compliance with the general

399

permit in this section; to ensure compliance with local

400

ordinances, codes, or regulations relating to building or zoning

401

that are no more stringent than the general permit in this

402

section; and to ensure proper installation and maintenance of a

403

floating vessel platform or floating boat lift that is proposed

404

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

405

other docking structure.

406

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

407

maintained roads and the repair or replacement of bridges that

408

are part of the roadway, within the Northwest Florida Water

409

Management District and the Suwannee River Water Management

410

District, provided:

411

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

412

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

413

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

414

2. The construction activity does not realign the road or

415

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

416

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

417

clearance of vegetation, and other work reasonably necessary to

418

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

419

work is constructed by generally accepted engineering standards;

420

3. The construction activity does not expand the existing

421

width of an existing vehicular bridge in excess of that

422

reasonably necessary to properly connect the bridge with the road

423

being repaired, stabilized, paved, or repaved to safely

424

accommodate the traffic expected on the road, which may include

425

expanding the width of the bridge to match the existing connected

426

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

427

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

428

4. Best management practices for erosion control shall be

429

employed as necessary to prevent water quality violations;

430

5. Roadside swales or other effective means of stormwater

431

treatment must be incorporated as part of the project;

432

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

433

state is performed than that which is reasonably necessary to

434

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

435

replace the bridge, in accordance with generally accepted

436

engineering standards; and

437

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

438

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

439

Florida Water Management District, or to the Suwannee River Water

440

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

441

Suwannee River Water Management District, 30 days prior to

442

performing any work under the exemption.

443

444

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

445

initiate rulemaking to adopt a no fee general permit for the

446

repair, stabilization, or paving of existing roads that are

447

maintained by the county and the repair or replacement of bridges

448

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

449

significant adverse impacts to occur individually or

450

cumulatively. The general permit shall apply statewide and, with

451

no additional rulemaking required, apply to qualified projects

452

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

453

Johns River Water Management District, the Southwest Florida

454

Water Management District, and the South Florida Water Management

455

District under the division of responsibilities contained in the

456

operating agreements applicable to part IV of chapter 373. Upon

457

adoption, this general permit shall, pursuant to the provisions

458

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

459

paragraph.

460

(u) Notwithstanding any provision to the contrary in this

461

subsection, a permit or other authorization under chapter 253,

462

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

463

individual residential property owner for the removal of organic

464

detrital material from freshwater rivers or lakes that have a

465

natural sand or rocky substrate and that are not Aquatic

466

Preserves or for the associated removal and replanting of aquatic

467

vegetation for the purpose of environmental enhancement,

468

providing that:

469

1. No activities under this exemption are conducted in

470

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

471

by a natural soil as shown in applicable United States Department

472

of Agriculture county soil surveys.

473

2. No filling or peat mining is allowed.

474

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

475

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

476

4. When removing organic detrital material, no portion of

477

the underlying natural mineral substrate or rocky substrate is

478

removed.

479

5. Organic detrital material and plant material removed is

480

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

481

quality violations.

482

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

483

appropriate turbidity controls, so as to prevent any water

484

quality violations outside the immediate work area.

485

7. Replanting with a variety of aquatic plants native to

486

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

487

preexisting vegetated areas where organic detrital material is

488

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

489

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

490

vegetation as an access corridor. The access corridor width may

491

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

492

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

493

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

494

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

495

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

496

existing aquatic vegetation, except that under dewatered

497

conditions replanting must be completed within 90 days after

498

reflooding. The area to be replanted must extend waterward from

499

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

500

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

501

less. Individuals are required to make a reasonable effort to

502

maintain planting density for a period of 6 months after

503

replanting is complete, and the plants, including naturally

504

recruited native aquatic plants, must be allowed to expand and

505

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

506

for revegetation must be salvaged from the enhancement project

507

site or obtained from an aquatic plant nursery regulated by the

508

Department of Agriculture and Consumer Services. Plants that are

509

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

510

8. No activity occurs any farther than 100 feet waterward

511

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

512

designed and conducted in a manner that will not unreasonably

513

restrict or infringe upon the riparian rights of adjacent upland

514

riparian owners.

515

9. The person seeking this exemption notifies the

516

applicable department district office in writing at least 30 days

517

before commencing work and allows the department to conduct a

518

preconstruction site inspection. Notice must include an organic-

519

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

520

vegetation-removal and revegetation plan.

521

10. The department is provided written certification of

522

compliance with the terms and conditions of this paragraph within

523

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.