HB 1123

1	A bill to be entitled
2	An act relating to environmental permitting; amending s.
3	373.4144, F.S.; providing legislative intent; revising
4	provisions requiring the Department of Environmental
5	Protection to develop and use a mechanism consolidating
6	federal and state wetland permitting programs; authorizing
7	implementation of a state programmatic general permit or
8	regional general permits by the department and water
9	management districts for certain dredge and fill
10	activities; specifying conditions applicable to such
11	permits; amending s. 373.4211, F.S.; delaying the
12	effective date of a rule adding slash pine and gallberry
13	to the list of facultative plants; revising provisions
14	concerning the methodologies used to delineate the
15	landward extent of wetlands and surface waters; revising
16	provisions concerning the vegetative index used to
17	delineate the landward extent of wetlands and surface
18	waters; providing for permit modification under certain
19	circumstances; providing for certain declaratory
20	statements from the department; providing exemptions for
21	certain permit petitions and applications relating to
22	specified activities; providing an effective date.
23
24	Be It Enacted by the Legislature of the State of Florida:
25
26	Section 1.  Section 373.4144, Florida Statutes, is amended
27	to read:
28	373.4144  Federal environmental permitting.--
29	(1)  The Legislature intends to:
30	(a)  Facilitate coordination and a more efficient process
31	of implementing regulatory duties and functions between the
32	Department of Environmental Protection, the water management
33	districts, the United States Army Corps of Engineers, the United
34	States Fish and Wildlife Service, the National Marine Fisheries
35	Service, the United States Environmental Protection Agency, the
36	Fish and Wildlife Conservation Commission, and other relevant
37	federal and state agencies.
38	(b)  Authorize the Department of Environmental Protection
39	to obtain issuance by the United States Army Corps of Engineers,
40	pursuant to state and federal law and as set forth in this
41	section, of an expanded state programmatic general permit, or a
42	series of regional general permits, for categories of activities
43	in waters of the United States governed by the Clean Water Act
44	and in navigable waters under the Rivers and Harbors Act of 1899
45	which are similar in nature, which will cause only minimal
46	adverse environmental effects when performed separately, and
47	which will have only minimal cumulative adverse effects on the
48	environment.
49	(c)  Use the mechanism of a state general permit or
50	regional general permits to eliminate overlapping federal
51	regulations and state rules that seek to protect the same
52	resource and to avoid duplication of permitting between the
53	United States Army Corps of Engineers and the department for
54	minor work located in waters of the United States, including
55	navigable waters, thus eliminating, in appropriate cases, the
56	need for a separate individual approval from the United States
57	Army Corps of Engineers while ensuring the most stringent
58	protection of wetland resources.
59	(d)  Direct the department to not seek issuance of or take
60	any action pursuant to any such permits unless the conditions
61	are at least as protective of the environment and natural
62	resources as existing state law under this part and federal law
63	under the Clean Water Act and the Rivers and Harbors Act of
64	1899.
65	(e)  Add slash pine and gallberry to the state list of
66	facultative species as an incentive for and contingent upon the
67	alignment of federal and state wetland jurisdictional
68	delineation, so that the alignment, which seeks to delineate the
69	same wetland communities, eliminates an impediment to obtaining
70	authorization from the United States Army Corps of Engineers for
71	a state programmatic general permit or regional general permits.
72	The department shall report annually to the Legislature on
73	efforts to eliminate impediments to achieving greater
74	efficiencies through expansion of a state programmatic general
75	permit or regional general permits. The department is directed
76	to develop, on or before October 1, 2005, a mechanism or plan to
77	consolidate, to the maximum extent practicable, the federal and
78	state wetland permitting programs. It is the intent of the
79	Legislature that all dredge and fill activities impacting 10
80	acres or less of wetlands or waters, including navigable waters,
81	be processed by the state as part of the environmental resource
82	permitting program implemented by the department and the water
83	management districts. The resulting mechanism or plan shall
84	analyze and propose the development of an expanded state
85	programmatic general permit program in conjunction with the
86	United States Army Corps of Engineers pursuant to s. 404 of the
87	Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
88	1251 et seq., and s. 10 of the Rivers and Harbors Act of 1899.
89	Alternatively, or in combination with an expanded state
90	programmatic general permit, the mechanism or plan may propose
91	the creation of a series of regional general permits issued by
92	the United States Army Corps of Engineers pursuant to the
93	referenced statutes. All of the regional general permits must be
94	administered by the department or the water management districts
95	or their designees.
96	(2)  To effectuate efficient wetland permitting and avoid
97	duplication, the department and water management districts may
98	implement a voluntary state programmatic general permit for all
99	dredge and fill activities impacting 5 acres or less of wetlands
100	or other surface waters, including navigable waters, subject to
101	agreement with the United States Army Corps of Engineers, if the
102	general permit is at least as protective of the environment and
103	natural resources as existing state law under this part and
104	federal law under the Clean Water Act and the Rivers and Harbors
105	Act of 1899. The department is directed to file with the Speaker
106	of the House of Representatives and the President of the Senate
107	a report proposing any required federal and state statutory
108	changes that would be necessary to accomplish the directives
109	listed in this section and to coordinate with the Florida
110	Congressional Delegation on any necessary changes to federal law
111	to implement the directives.
112	(3)  Nothing in This section does not shall be construed to
113	preclude the department from pursuing a series of regional
114	general permits for construction activities in wetlands or
115	surface waters or the complete assumption of federal permitting
116	programs regulating the discharge of dredged or fill material
117	pursuant to s. 404 of the Clean Water Act, Pub. L. No. 92-500,
118	as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers
119	and Harbors Act of 1899, so long as the assumption encompasses
120	all dredge and fill activities in, on, or over jurisdictional
121	wetlands or waters, including navigable waters, within the
122	state.
123	(4)(a)  In order to assist in facilitating the objectives
124	of this section and to promote consistency between federal and
125	state mitigation requirements, the department and water
126	management districts shall compare their rules regarding
127	mitigation for adverse impacts to the mitigation rules of the
128	United States Army Corps of Engineers and the Environmental
129	Protection Agency in 73 Federal Register, pages 19594-19705
130	(2008). The comparison shall be done in consultation with
131	appropriate representatives of the United States Army Corps of
132	Engineers and the Environmental Protection Agency. After
133	performing the comparison, the department and water management
134	districts shall:
135	1.  Identify any inconsistent or contradictory provisions;
136	2.  Recommend revisions to the rules of the department or
137	water management district to reduce redundant or duplicative
138	requirements; and
139	3.  Recommend ways of increasing geographic size of the
140	drainage basins and regional watersheds to better facilitate or
141	reflect a watershed approach to mitigation.
142	(b)  Unless directed otherwise by state law, the department
143	and each water management district shall amend their respective
144	rules to eliminate inconsistent or contradictory provisions,
145	reduce redundant or duplicative requirements, and increase the
146	geographic size of drainage basins and regional watersheds to
147	facilitate or reflect a watershed approach to mitigation.
148	(c)  The department and water management districts shall
149	submit a consolidated report regarding the requirements of this
150	subsection to the Governor, the Chair of the Senate
151	Environmental Preservation and Conservation Committee, and the
152	Chair of the House Agriculture and Natural Resources Policy
153	Committee by January 1, 2010. If the department and water
154	management districts believe any conflicting state law prevents
155	them from amending their rules to achieve the objectives of this
156	subsection, the report shall identify such law and explain why
157	it prevents a rule amendment to achieve the objectives of this
158	subsection.
159	Section 2.  Subsection (19) of section 373.4211, Florida
160	Statutes, is amended to read:
161	373.4211  Ratification of chapter 17-340, Florida
162	Administrative Code, on the delineation of the landward extent
163	of wetlands and surface waters.--Pursuant to s. 373.421, the
164	Legislature ratifies chapter 17-340, Florida Administrative
165	Code, approved on January 13, 1994, by the Environmental
166	Regulation Commission, with the following changes:
167	(19)(a)  Rule 17-340.450(3) is amended by adding, after the
168	species list, the following language:
169	"Within Monroe County and the Key Largo portion of Miami-
170	Dade County only, the following species shall be listed as
171	facultative: Alternanthera paronychioides, Byrsonima lucida,
172	Ernodea littoralis, Guapira discolor, Marnilkara bahamensis,
173	Pisonis rotundata, Pithecellobium keyensis, Pithecellobium
174	unquis-cati, Randia aculeata, Reynosia septentrionalis, and
175	Thrinax radiata."
176	(b)  Pursuant to s. 373.421 and subject to the conditions
177	described in this paragraph, the Legislature ratifies the
178	changes to rule 62-340.450(3), Florida Administrative Code,
179	approved on February 23, 2006, by the Environmental Regulation
180	Commission which added slash pine (pinus elliottii) and
181	gallberry (ilex glabra) to the list of facultative plants.
182	However, this ratification and the rule revision shall not take
183	effect until state and federal wetland jurisdictional
184	delineation methodologies are aligned.
185	(c)  Surface water and wetland delineations identified and
186	approved by a permit issued under rules adopted under this part
187	before July 1, 2009, shall remain valid until expiration of the
188	permit, notwithstanding the changes to rule 62-340.450(3),
189	Florida Administrative Code, as described in this subsection.
190	For purposes of this paragraph, the term "identified and
191	approved" means:
192	1.  The delineation was field-verified by the permitting
193	agency and such verification was surveyed as part of the
194	application review process for the permit; or
195	2.  The delineation was field-verified by the permitting
196	agency and approved pursuant to the permit.
197
198	Where surface water and wetland delineations were not identified
199	and approved pursuant to the permit issued under rules adopted
200	under this part, delineations within the geographical area to
201	which the permit applies shall be determined pursuant to the
202	rules applicable at the time the permit was issued,
203	notwithstanding the changes to rule 62-340.450(3), Florida
204	Administrative Code, as described in this subsection. This
205	paragraph also applies to any modification of the permit issued
206	under rules adopted pursuant to this part which does not
207	constitute a substantial modification within the geographical
208	area to which the permit applies.
209	(d)  Any declaratory statement issued by the department
210	under s. 403.9144, pursuant to rules adopted thereunder, or by
211	the department or a water management district under s. 373.421,
212	in response to a petition filed on or before July 1, 2009, shall
213	continue to be valid for the duration of such declaratory
214	statement. Any petition pending on or before July 1, 2009, is
215	exempt from the changes to rule 62-340.450(3), Florida
216	Administrative Code, as described in this subsection, and is
217	subject to the provisions of chapter 62-340, Florida
218	Administrative Code, in effect prior to such change. Activities
219	proposed within the boundaries of a valid declaratory statement
220	issued pursuant to a petition submitted to the department or the
221	relevant water management district on or before July 1, 2009, or
222	a revalidated jurisdictional determination prior to its
223	expiration, shall continue thereafter to be exempt from the
224	changes to rule 62-340.450(3), Florida Administrative Code, as
225	described in this subsection.
226	Section 3.  This act shall take effect July 1, 2009.

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