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         403.9335Coral 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.