Florida Senate - 2009 CS for CS for SB 1004 By the Committees on Judiciary; and Environmental Preservation and Conservation; and Senator Constantine 590-04432-09 20091004c2 1 A bill to be entitled 2 An act relating to coral reefs; creating s. 403.9335, 3 F.S.; creating the “Florida Coral Reef Protection 4 Act”; providing definitions; providing legislative 5 intent; requiring responsible parties to notify the 6 Department of Environmental Protection if their vessel 7 runs aground or damages a coral reef; requiring the 8 responsible party to remove the vessel; requiring the 9 responsible party to cooperate with the department to 10 assess the damage and restore the coral reef; 11 authorizing the department to recover damages from the 12 responsible party; authorizing the department to use a 13 certain method to calculate compensation for damage of 14 coral reefs; authorizing the department to assess 15 civil penalties; authorizing the department to enter 16 into delegation agreements; providing that moneys 17 collected from damages and civil penalties for injury 18 to coral reefs be deposited in the Ecosystem 19 Management and Restoration Trust Fund within the 20 Department of Environmental Protection; providing 21 requirements; authorizing the department to adopt 22 rules; amending s. 403.1651, F.S.; authorizing the 23 department to enter into settlement agreements that 24 require responsible parties to pay another government 25 entity or nonprofit organization to fund projects 26 consistent with the conservation or protection of 27 coral reefs; repealing s. 253.04(3), F.S., relating to 28 civil penalties for damage to coral reefs; repealing 29 s. 380.0558, F.S., relating to coral reef restoration; 30 providing an effective date. 31 32 Be It Enacted by the Legislature of the State of Florida: 33 34 Section 1. Section 403.9335, Florida Statutes, is created 35 to read: 36 403.9335 Coral reef protection.— 37 (1) This section may be cited as the “Florida Coral Reef 38 Protection Act.” 39 (2) As used in this section, the term: 40 (a) “Aggravating circumstances” means operating, anchoring, 41 or mooring a vessel in a reckless or wanton manner; under the 42 influence of drugs or alcohol; or otherwise with disregard for 43 boating regulations concerning speed, navigation, or safe 44 operation. 45 (b) “Coral” means species of the phylum Cnidaria found in 46 state waters including: 47 1. Class Anthozoa, including the subclass Octocorallia, 48 commonly known as gorgonians, soft corals, and telestaceans; and 49 2. Orders Scleractinia, commonly known as stony corals; 50 Stolonifera, including, among others, the organisms commonly 51 known as organ-pipe corals; Antipatharia, commonly known as 52 black corals; and Hydrozoa, including the family Millaporidae 53 and family Stylasteridae, commonly known as hydrocoral. 54 (c) “Coral reefs” mean: 55 1. Limestone structures composed wholly or partially of 56 living corals, their skeletal remains, or both, and hosting 57 other coral, associated benthic invertebrates, and plants; or 58 2. Hard-bottom communities, also known as live bottom 59 habitat or colonized pavement, characterized by the presence of 60 coral and associated reef organisms or worm reefs created by the 61 Phragmatopoma species. 62 (d) “Damages” means moneys paid by any person or entity, 63 whether voluntarily or as a result of administrative or judicial 64 action, to the state as compensation, restitution, penalty, or 65 mitigation for causing injury to or destruction of coral reefs. 66 (e) “Department” means the Department of Environmental 67 Protection. 68 (f) “Fund” means the Ecosystem Management and Restoration 69 Trust Fund. 70 (g) “Person” means any and all persons, natural or 71 artificial, foreign or domestic, including any individual, firm, 72 partnership, business, corporation, and company and the United 73 States and all political subdivisions, regions, districts, 74 municipalities, and public agencies thereof. 75 (h) “Responsible party” means the owner, operator, manager, 76 or insurer of any vessel. 77 (3) The Legislature finds that coral reefs are valuable 78 natural resources that contribute ecologically, aesthetically, 79 and economically to the state. Therefore, the Legislature 80 declares it is in the best interest of the state to clarify the 81 department’s powers and authority to protect coral reefs through 82 timely and efficient recovery of monetary damages resulting from 83 vessel groundings and anchoring-related injuries. It is the 84 intent of the Legislature that the department be recognized as 85 the state’s lead trustee for coral reef resources located within 86 waters of the state or on sovereignty submerged lands unless 87 preempted by federal law. This section does not divest other 88 state agencies and political subdivisions of the state of their 89 interests in protecting coral reefs. 90 (4) The responsible party who knows or should know that 91 their vessel has run aground, struck, or otherwise damaged coral 92 reefs must notify the department of such an event within 24 93 hours after its occurrence. Unless otherwise prohibited or 94 restricted by the United States Coast Guard, the responsible 95 party must remove or cause the removal of the grounded or 96 anchored vessel within 72 hours after the initial grounding or 97 anchoring absent extenuating circumstances such as weather, or 98 marine hazards that would prevent safe removal of the vessel. 99 The responsible party must remove or cause the removal of the 100 vessel or its anchor in a manner that avoids further damage to 101 coral reefs and shall consult with the department in 102 accomplishing this task. The responsible party must cooperate 103 with the department to undertake damage assessment and primary 104 restoration of the coral reef in a timely fashion. 105 (5) In any action or suit initiated pursuant to chapter 253 106 on the behalf of the Board of Trustees of the Internal 107 Improvement Trust Fund, or under chapter 373 or this chapter for 108 damage to coral reefs, the department may recover all damages 109 from the responsible party, including, but not limited to: 110 (a) Compensation for the cost of replacing, restoring, or 111 acquiring the equivalent of the coral reef injured and the value 112 of the lost use and services of the coral reef pending its 113 restoration, replacement, or acquisition of the equivalent coral 114 reef, or the value of the coral reef if the coral reef cannot be 115 restored or replaced or if the equivalent cannot be acquired. 116 (b) The cost of damage assessments, including staff time. 117 (c) The cost of activities undertaken by or at the request 118 of the department to minimize or prevent further injury to coral 119 or coral reefs pending restoration, replacement, or acquisition 120 of an equivalent. 121 (d) The reasonable cost of monitoring the injured, 122 restored, or replaced coral reef for at least 10 years. Such 123 monitoring is not required for a single occurrence of damage to 124 a coral reef damage totaling less than or equal to 1 square 125 meter. 126 (e) The cost of enforcement actions undertaken in response 127 to the destruction or loss of or injury to a coral reef, 128 including court costs, attorney’s fees, and expert witness fees. 129 (6) The department may use habitat equivalency analysis as 130 the method by which the compensation described in subsection (5) 131 is calculated. The parameters for calculation by this method may 132 be prescribed by rule adopted by the department. 133 (7) In addition to the compensation described in subsection 134 (5), the department may assess, per occurrence, civil penalties 135 according the following schedule: 136 (a) For any anchoring of a vessel on a coral reef or for 137 any other damage to a coral reef totaling less than or equal to 138 an area of 1 square meter, $150, provided that a responsible 139 party who has anchored a recreational vessel as defined in s. 140 327.02 which is lawfully registered or exempt from registration 141 pursuant to chapter 328 is issued, at least once, a warning 142 letter in lieu of penalty; with aggravating circumstances, an 143 additional $150; occurring within a state park or aquatic 144 preserve, an additional $150. 145 (b) For damage totaling more than an area of 1 square meter 146 but less than or equal to an area of 10 square meters, $300 per 147 square meter; with aggravating circumstances, an additional $300 148 per square meter; occurring within a state park or aquatic 149 preserve, an additional $300 per square meter. 150 (c) For damage exceeding an area of 10 square meters, 151 $1,000 per square meter; with aggravating circumstances, an 152 additional $1,000 per square meter; occurring within a state 153 park or aquatic preserve, an additional $1,000 per square meter. 154 (d) For a second violation, the total penalty may be 155 doubled. 156 (e) For a third violation, the total penalty may be 157 tripled. 158 (f) For any violation after a third violation, the total 159 penalty may be quadrupled. 160 (g) The total of penalties levied may not exceed $250,000 161 per occurrence. 162 (8) To carry out the intent of this section, the department 163 may enter into delegation agreements with another state agency 164 or any coastal county with coral reefs within its jurisdiction. 165 In deciding to execute such agreements, the department must 166 consider the ability of the potential delegee to adequately and 167 competently perform the duties required to fulfill the intent of 168 this section. When such agreements are executed by the parties 169 and incorporated in department rule, the delegee shall have all 170 rights accorded the department by this section. Nothing herein 171 shall be construed to require the department, another state 172 agency, or a coastal county to enter into such an agreement. 173 (9) Nothing in this section shall be construed to prevent 174 the department or other state agencies from entering into 175 agreements with federal authorities related to the 176 administration of the Florida Keys National Marine Sanctuary. 177 (10) All damages recovered by or on behalf of this state 178 for injury to, or destruction of, the coral reefs of the state 179 that would otherwise be deposited in the general revenue 180 accounts of the State Treasury or in the Internal Improvement 181 Trust Fund shall be deposited in the Ecosystem Management and 182 Restoration Trust Fund in the department and shall remain in 183 such account until expended by the department for the purposes 184 of this section. Moneys in the fund received from damages 185 recovered for injury to, or destruction of, coral reefs must be 186 expended only for the following purposes: 187 (a) To provide funds to the department for reasonable costs 188 incurred in obtaining payment of the damages for injury to, or 189 destruction of, coral reefs, including administrative costs and 190 costs of experts and consultants. Such funds may be provided in 191 advance of recovery of damages if the department determines. 192 (b) To pay for restoration or rehabilitation of the injured 193 or destroyed coral reefs or other natural resources by a state 194 agency or through a contract to any qualified person. 195 (c) To pay for alternative projects selected by the 196 department. Any such project shall be selected on the basis of 197 its anticipated benefits to the residents of this state who used 198 the injured or destroyed coral reefs or other natural resources 199 or will benefit from the alternative project. 200 (d) All claims for trust fund reimbursements under 201 paragraph (a) must be made within 90 days after payment of 202 damages is made to the state. 203 (e) Each private recipient of fund disbursements shall be 204 required to agree in advance that its accounts and records of 205 expenditures of such moneys are subject to audit at any time by 206 appropriate state officials and to submit a final written report 207 describing such expenditures within 90 days after the funds have 208 been expended. 209 (f) When payments are made to a state agency from the fund 210 for expenses compensable under this subsection, such 211 expenditures shall be considered as being for extraordinary 212 expenses, and no agency appropriation shall be reduced by any 213 amount as a result of such reimbursement. 214 (11) The department may adopt rules pursuant to ss. 120.536 215 and 120.54 to administer this section. 216 Section 2. Paragraph (b) of subsection (2) of section 217 403.1651, Florida Statutes, is amended to read: 218 403.1651 Ecosystem Management and Restoration Trust Fund.— 219 (2) The trust fund shall be used for the deposit of all 220 moneys recovered by the state: 221 (b) For injury to or destruction of coral reefs, which 222 moneys would otherwise be deposited into the General Revenue 223 Fund or the Internal Improvement Trust Fund. The department may 224 enter into settlement agreements that require responsible 225 parties to pay a third party to fund projects related to the 226 restoration of a coral reef, to accomplish mitigation for injury 227 to a coral reef, or to support the activities of law enforcement 228 agencies related to coral reef injury response, investigation 229 and assessment. Participation of a law enforcement agency in the 230 receipt of funds through this mechanism shall be at the law 231 enforcement agency’s discretion. 232 Section 3. Subsection (3) of section 253.04, Florida 233 Statutes, is repealed. 234 Section 4. Section 380.0558, Florida Statutes, is repealed. 235 Section 5. This act shall take effect July 1, 2009.