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

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