CS/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; 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 formal determinations
20	and declaratory statements from the department; providing
21	exemptions for certain permit petitions and applications
22	relating to specified activities; providing an effective
23	date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Section 373.4144, Florida Statutes, is amended
28	to read:
29	373.4144  Federal environmental permitting.--
30	(1)  The Legislature intends to:
31	(a)  Facilitate coordination and a more efficient process
32	of implementing regulatory duties and functions between the
33	Department of Environmental Protection, the water management
34	districts, the United States Army Corps of Engineers, the United
35	States Fish and Wildlife Service, the National Marine Fisheries
36	Service, the United States Environmental Protection Agency, the
37	Fish and Wildlife Conservation Commission, and other relevant
38	federal and state agencies.
39	(b)  Authorize the Department of Environmental Protection
40	to obtain issuance by the United States Army Corps of Engineers,
41	pursuant to state and federal law and as set forth in this
42	section, of an expanded state programmatic general permit, or a
43	series of regional general permits, for categories of activities
44	in waters of the United States governed by the Clean Water Act
45	and in navigable waters under the Rivers and Harbors Act of 1899
46	which are similar in nature, which will cause only minimal
47	adverse environmental effects when performed separately, and
48	which will have only minimal cumulative adverse effects on the
49	environment.
50	(c)  Use the mechanism of a state general permit or
51	regional general permits to eliminate overlapping federal
52	regulations and state rules that seek to protect the same
53	resource and to avoid duplication of permitting between the
54	United States Army Corps of Engineers and the department for
55	minor work located in waters of the United States, including
56	navigable waters, thus eliminating, in appropriate cases, the
57	need for a separate individual approval from the United States
58	Army Corps of Engineers while ensuring the most stringent
59	protection of wetland resources.
60	(d)  Direct the department to not seek issuance of or take
61	any action pursuant to any such permits unless the conditions
62	are at least as protective of the environment and natural
63	resources as existing state law under this part and federal law
64	under the Clean Water Act and the Rivers and Harbors Act of
65	1899.
66	(e)  Add slash pine and gallberry to the state list of
67	facultative species as an incentive for and contingent upon the
68	alignment of federal and state wetland jurisdictional
69	delineation, so that the alignment, which seeks to delineate the
70	same wetland communities, eliminates an impediment to obtaining
71	authorization from the United States Army Corps of Engineers for
72	a state programmatic general permit or regional general permits.
73	The department shall report annually to the Legislature on
74	efforts to eliminate impediments to achieving greater
75	efficiencies through expansion of a state programmatic general
76	permit or regional general permits. The department is directed
77	to develop, on or before October 1, 2005, a mechanism or plan to
78	consolidate, to the maximum extent practicable, the federal and
79	state wetland permitting programs. It is the intent of the
80	Legislature that all dredge and fill activities impacting 10
81	acres or less of wetlands or waters, including navigable waters,
82	be processed by the state as part of the environmental resource
83	permitting program implemented by the department and the water
84	management districts. The resulting mechanism or plan shall
85	analyze and propose the development of an expanded state
86	programmatic general permit program in conjunction with the
87	United States Army Corps of Engineers pursuant to s. 404 of the
88	Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.
89	1251 et seq., and s. 10 of the Rivers and Harbors Act of 1899.
90	Alternatively, or in combination with an expanded state
91	programmatic general permit, the mechanism or plan may propose
92	the creation of a series of regional general permits issued by
93	the United States Army Corps of Engineers pursuant to the
94	referenced statutes. All of the regional general permits must be
95	administered by the department or the water management districts
96	or their designees.
97	(2)  To effectuate efficient wetland permitting and avoid
98	duplication, the department and water management districts may
99	implement a voluntary state programmatic general permit for all
100	dredge and fill activities impacting 5 acres or less of wetlands
101	or other surface waters, including navigable waters, subject to
102	agreement with the United States Army Corps of Engineers, if the
103	general permit is at least as protective of the environment and
104	natural resources as existing state law under this part and
105	federal law under the Clean Water Act and the Rivers and Harbors
106	Act of 1899. This subsection does not prevent the department and
107	water management districts from pursuing and implementing a
108	state programmatic permit for projects impacting more than 5
109	acres of wetlands or other surface waters. The department is
110	directed to file with the Speaker of the House of
111	Representatives and the President of the Senate a report
112	proposing any required federal and state statutory changes that
113	would be necessary to accomplish the directives listed in this
114	section and to coordinate with the Florida Congressional
115	Delegation on any necessary changes to federal law to implement
116	the directives.
117	(3)  Nothing in This section does not shall be construed to
118	preclude the department from pursuing a series of regional
119	general permits for construction activities in wetlands or
120	surface waters or the complete assumption of federal permitting
121	programs regulating the discharge of dredged or fill material
122	pursuant to s. 404 of the Clean Water Act, Pub. L. No. 92-500,
123	as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers
124	and Harbors Act of 1899, so long as the assumption encompasses
125	all dredge and fill activities in, on, or over jurisdictional
126	wetlands or waters, including navigable waters, within the
127	state.
128	(4)(a)  In order to assist in facilitating the objectives
129	of this section and to promote consistency between federal and
130	state mitigation requirements, the department and water
131	management districts shall compare their rules regarding
132	mitigation for adverse impacts to the mitigation rules of the
133	United States Army Corps of Engineers and the Environmental
134	Protection Agency in 73 Federal Register, pages 19594-19705
135	(2008). The comparison shall be done in consultation with
136	appropriate representatives of the United States Army Corps of
137	Engineers and the Environmental Protection Agency. After
138	performing the comparison, the department and water management
139	districts shall:
140	1.  Identify any inconsistent or contradictory provisions.
141	2.  Recommend appropriate revisions to the rules of the
142	department or water management district to reduce inconsistent
143	or contradictory provisions in a manner that will not lessen
144	environmental protection, including consideration of increasing
145	the geographic size of the drainage basins and regional
146	watersheds to facilitate or reflect a watershed approach to
147	mitigation.
148	(b)  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 a voluntary state programmatic general permit for
184	all dredge and fill activities impacting 5 acres or less of
185	wetlands or other surface waters is implemented as provided in
186	s. 373.4144(2).
187	(c)  Unless the holder of a valid permit elects to use the
188	delineation line as amended to add slash pine (Pinus elliottii)
189	and gallberry (Ilex glabra) to the list of facultative plants,
190	the surface water and wetland delineations identified and
191	approved by a permit issued under rules adopted under this part
192	before July 1, 2009, shall remain valid until expiration of the
193	permit, notwithstanding the changes to rule 62-340.450(3),
194	Florida Administrative Code, as described in this subsection.
195	For purposes of this paragraph, the term "identified and
196	approved" means:
197	1.  The delineation was field-verified by the permitting
198	agency and such verification was surveyed as part of the
199	application review process for the permit; or
200	2.  The delineation was field-verified by the permitting
201	agency and approved pursuant to the permit.
202
203	Where surface water and wetland delineations were not identified
204	and approved pursuant to the permit issued under rules adopted
205	under this part, delineations within the geographical area to
206	which the permit applies shall be determined pursuant to the
207	rules applicable at the time the permit was issued,
208	notwithstanding the changes to rule 62-340.450(3), Florida
209	Administrative Code, as described in this subsection. This
210	paragraph also applies to any modification of the permit issued
211	under rules adopted pursuant to this part which does not
212	constitute a substantial modification within the geographical
213	area to which the permit applies.
214	(d)  Unless the petitioner elects to use the delineation
215	line as amended to add slash pine (Pinus elliottii) and
216	gallberry (Ilex glabra) to the list of facultative plants, any
217	formal determination or declaratory statement issued by the
218	department under former s. 403.914, pursuant to rules adopted
219	thereunder, or by the department or a water management district
220	under s. 373.421, in response to a petition filed on or before
221	July 1, 2009, shall continue to be valid for the duration of
222	such formal determination or declaratory statement. Any petition
223	pending on or before July 1, 2009, is exempt from the changes to
224	rule 62-340.450(3), Florida Administrative Code, as described in
225	this subsection, and is subject to the provisions of chapter 62-
226	340, Florida Administrative Code, in effect prior to such
227	change. Activities proposed within the boundaries of a valid
228	formal determination or declaratory statement issued pursuant to
229	a petition submitted to the department or the relevant water
230	management district on or before July 1, 2009, or a revalidated
231	jurisdictional determination prior to its expiration, shall
232	continue thereafter to be exempt from the changes to rule 62-
233	340.450(3), Florida Administrative Code, as described in this
234	subsection.
235	Section 3.  This act shall take effect July 1, 2009.

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