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; requiring
4	the Department of Environmental Protection to pursue the
5	issuance of a state programmatic permit or regional
6	general permits from the United States Army Corps of
7	Engineers; revising provisions requiring the Department of
8	Environmental Protection to develop and use a mechanism
9	consolidating federal and state wetland permitting
10	programs; authorizing implementation of a state
11	programmatic general permit or regional general permits by
12	the department and water management districts for certain
13	dredge and fill activities; specifying conditions
14	applicable to such permits; amending s. 373.4211, F.S.;
15	delaying the effective date of a rule adding slash pine
16	and gallberry to the list of facultative plants; revising
17	provisions concerning the methodologies used to delineate
18	the landward extent of wetlands and surface waters;
19	revising provisions concerning the vegetative index used
20	to delineate the landward extent of wetlands and surface
21	waters; providing for permit modification under certain
22	circumstances; providing for certain declaratory
23	statements or formal jurisdictional determinations from
24	the department or a water management district; providing
25	exemptions for certain permit petitions and applications
26	relating to specified activities; creating ss. 125.0112,
27	F.S.; providing that the construction and operation of a
28	biofuel processing facility or a renewable energy
29	generating facility may be considered a valid industrial,
30	agricultural, and silvicultural use for purposes of any
31	local comprehensive plan; providing that the cultivation
32	and production of bioenergy is a valid industrial,
33	agricultural, and silvicultural use for purposes of any
34	local comprehensive plan; providing for a local government
35	to establish an expedited review process under certain
36	circumstances; providing that local expedited review does
37	not obligate a local government to approve proposed uses;
38	providing for alternative state review of certain plan
39	amendments; providing the construction and operation of
40	certain facilities may not affect classification of
41	property for ad valorem tax purposes; amending s. 373.236,
42	F.S.; requiring that a permit for the use of water for
43	cultivating agricultural products and renewable energy be
44	granted for a specified number of years if certain
45	conditions are met; providing requirements for permittees;
46	providing an exemption; amending s. 403.973, F.S.;
47	providing for the expedited review of permit applications
48	for projects resulting in the production of biofuels or in
49	the construction of a biofuel or biodiesel processing
50	facility or renewable energy generating facility;
51	clarifying provisions relating to memoranda of agreement
52	which establish regional teams for the expedited review of
53	such applications; providing an effective date.
54
55	Be It Enacted by the Legislature of the State of Florida:
56	Section 1.  Section 373.4144, Florida Statutes, is amended
57	to read:
58	373.4144  Federal environmental permitting.--
59	(1)  The Legislature intends to facilitate coordination and
60	a more efficient process of implementing regulatory duties and
61	functions between the Department of Environmental Protection,
62	the water management districts, the United States Army Corps of
63	Engineers, the United States Fish and Wildlife Service, the
64	National Marine Fisheries Service, the United States
65	Environmental Protection Agency, the Fish and Wildlife
66	Conservation Commission, and other relevant federal and state
67	agencies. The department is directed to develop, on or before
68	October 1, 2005, a mechanism or plan to consolidate, to the
69	maximum extent practicable, the federal and state wetland
70	permitting programs. It is the intent of the Legislature that
71	all dredge and fill activities impacting 10 acres or less of
72	wetlands or waters, including navigable waters, be processed by
73	the state as part of the environmental resource permitting
74	program implemented by the department and the water management
75	districts. The resulting mechanism or plan shall analyze and
76	propose the development of an expanded state programmatic
77	general permit program in conjunction with the United States
78	Army Corps of Engineers pursuant to s. 404 of the Clean Water
79	Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq.,
80	and s. 10 of the Rivers and Harbors Act of 1899. Alternatively,
81	or in combination with an expanded state programmatic general
82	permit, the mechanism or plan may propose the creation of a
83	series of regional general permits issued by the United States
84	Army Corps of Engineers pursuant to the referenced statutes. All
85	of the regional general permits must be administered by the
86	department or the water management districts or their designees.
87	(2)(a)  The department shall pursue the issuance by the
88	United States Army Corps of Engineers, pursuant to state and
89	federal law and as set forth in this section, of an expanded
90	state programmatic general permit or a series of regional
91	general permits for categories of activities in waters of the
92	United States governed by the Clean Water Act and in navigable
93	waters under the Rivers and Harbors Act of 1899, which are
94	similar in nature, which will cause only minimal adverse
95	environmental effects when performed separately, and which will
96	have only minimal cumulative adverse effects on the environment.
97	(b)  The department is directed to:
98	1.  Use the mechanism of a state general permit or regional
99	general permits to eliminate overlapping federal regulations and
100	state rules that seek to protect the same resource and to avoid
101	duplication of permitting between the United States Army Corps
102	of Engineers and the department for minor work located in waters
103	of the United States, including navigable waters, thus
104	eliminating, in appropriate cases, the need for a separate
105	individual approval from the United States Army Corps of
106	Engineers while ensuring the most stringent protection of
107	wetland resources; and
108	2.  Not seek issuance of or take any action pursuant to any
109	such permits unless the conditions are at least as protective of
110	the environment and natural resources as existing state law
111	under this part and federal law under the Clean Water Act and
112	the Rivers and Harbors Act of 1899.
113	(c)  The department shall report to the Legislature by
114	January 15 of each year on efforts to eliminate impediments to
115	achieving greater efficiencies through expansion of a state
116	programmatic general permit or regional general permits.
117	(3)(2)  To effectuate efficient wetland permitting and
118	avoid duplication, the department and water management districts
119	may implement a voluntary state programmatic general permit for
120	all dredge and fill activities impacting 5 acres or less of
121	wetlands or other surface waters, including navigable waters,
122	subject to agreement with the United States Army Corps of
123	Engineers, if the general permit is at least as protective of
124	the environment and natural resources as existing state law
125	under this part and federal law under the Clean Water Act and
126	the Rivers and Harbors
127	Act of 1899. This subsection does not prevent the department or
128	water management districts from pursuing and implementing a
129	state programmatic permit for projects impacting more than 5
130	acres of wetlands or other surface waters. The department is
131	directed to file with the Speaker of the House of
132	Representatives and the President of the Senate a report
133	proposing any required federal and state statutory changes that
134	would be necessary to accomplish the directives listed in this
135	section and to coordinate with the Florida Congressional
136	Delegation on any necessary changes to federal law to implement
137	the directives.
138	(4)(3)  Nothing in This section does not shall be construed
139	to preclude the department from pursuing a series of regional
140	general permits for construction activities in wetlands or
141	surface waters or the complete assumption of federal permitting
142	programs regulating the discharge of dredged or fill material
143	pursuant to s. 404 of the Clean Water Act, Pub. L. No. 92-500,
144	as amended, 33 U.S.C. ss. 1251 et seq., and s. 10 of the Rivers
145	and Harbors Act of 1899, so long as the assumption encompasses
146	all dredge and fill activities in, on, or over jurisdictional
147	wetlands or waters, including navigable waters, within the
148	state.
149	(5)(a)  In order to assist in facilitating the objectives
150	of this section and to promote consistency between federal and
151	state mitigation requirements, the department and water
152	management districts shall compare their rules regarding
153	mitigation for adverse impacts to the mitigation rules of the
154	United States Army Corps of Engineers and the United States
155	Environmental Protection Agency in 73 Federal Register, pages
156	19594-19705 (2008). The comparison shall be done in consultation
157	with appropriate representatives of the United States Army Corps
158	of Engineers and the United States Environmental Protection
159	Agency. After performing the comparison, the department and
160	water management districts shall:
161	1.  Identify any inconsistent or contradictory provisions;
162	and
163	2.  Recommend appropriate revisions to the rules of the
164	department or water management districts to reduce inconsistent
165	or contradictory requirements in such a manner that will not
166	lessen environmental protection. The recommendations shall
167	include a consideration for increasing the geographic size of
168	drainage basins and regional watersheds to facilitate or reflect
169	a watershed approach to mitigation.
170	(b)  The department and water management districts shall
171	submit a consolidated report regarding the requirements of this
172	subsection to the Governor, the Chair of the Senate
173	Environmental Preservation and Conservation Committee, and the
174	Chair of the House Agriculture and Natural Resources Policy
175	Committee by January 15, 2010. If the department and water
176	management districts believe any conflicting state law prevents
177	them from amending their rules to achieve the objectives of this
178	subsection, the report must identify such law and explain why it
179	prevents a rule amendment to achieve the objectives of this
180	subsection.
181	Section 2.  Subsection (19) of section 373.4211, Florida
182	Statutes, is amended to read:
183	373.4211  Ratification of chapter 17-340, Florida
184	Administrative Code, on the delineation of the landward extent
185	of wetlands and surface waters.--Pursuant to s. 373.421, the
186	Legislature ratifies chapter 17-340, Florida Administrative
187	Code, approved on January 13, 1994, by the Environmental
188	Regulation Commission, with the following changes:
189	(19)(a)  Rule 17-340.450(3) is amended by adding, after the
190	species list, the following language:
191	"Within Monroe County and the Key Largo portion of Miami-
192	Dade County only, the following species shall be listed as
193	facultative: Alternanthera paronychioides, Byrsonima lucida,
194	Ernodea littoralis, Guapira discolor, Marnilkara bahamensis,
195	Pisonis rotundata, Pithecellobium keyensis, Pithecellobium
196	unquis-cati, Randia aculeata, Reynosia septentrionalis, and
197	Thrinax radiata."
198	(b)  Pursuant to s. 373.421 and subject to the conditions
199	described in this paragraph, the Legislature ratifies the
200	changes to rule 62-340.450(3), Florida Administrative Code,
201	approved on February 23, 2006, by the Environmental Regulation
202	Commission which added slash pine (Pinus elliottii) and
203	gallberry (Ilex glabra) to the list of facultative plants.
204	However, this ratification and the rule revision will not take
205	effect until a voluntary state programmatic general permit for
206	all dredge and fill activities affecting 5 acres or less of
207	wetlands or other surface waters is implemented as provided in
208	s. 373.4144(3).
209	(c)  Unless the holder of a valid permit elects to use the
210	delineation line as amended to add slash pine (Pinus elliottii)
211	and gallberry (Ilex glabra) to the list of facultative plants,
212	the surface water and wetland delineations identified and
213	approved by a permit issued under rules adopted under this part
214	before July 1, 2009, remain valid until expiration of the
215	permit, notwithstanding the changes to rule 62-340.450(3),
216	Florida Administrative Code, as described in this subsection.
217	For purposes of this paragraph, the term "identified and
218	approved" means:
219	1.  The delineation was field-verified by the permitting
220	agency and such verification was surveyed as part of the
221	application review process for the permit; or
222	2.  The delineation was field-verified by the permitting
223	agency and approved pursuant to the permit.
224
225	Where surface water and wetland delineations were not identified
226	and approved pursuant to the permit issued under rules adopted
227	under this part, delineations within the geographical area to
228	which the permit applies shall be determined pursuant to the
229	rules applicable at the time the permit was issued,
230	notwithstanding the changes to rule 62-340.450(3), Florida
231	Administrative Code, as described in this subsection. This
232	paragraph also applies to any modification of the permit issued
233	under rules adopted pursuant to this part which does not
234	constitute a substantial modification within the geographical
235	area to which the permit applies.
236	(d)  Unless the petitioner elects to use the delineation
237	line as amended to add slash pine (Pinus elliottii) and
238	gallberry (Ilex glabra) to the list of facultative plants, any
239	declaratory statement issued by the department under s. 403.914,
240	1984 Supplement to the Florida Statutes 1983 as amended,
241	pursuant to rules adopted thereunder, or formal determination
242	issued by the department or a water management district under s.
243	373.421, in response to a petition filed on or before July 1,
244	2009, shall continue to be valid for the duration of such
245	declaratory statement or formal determination. Any petition
246	pending on or before July 1, 2009, is exempt from the changes to
247	rule 62-340.450(3), Florida Administrative Code, as described in
248	this subsection, and is subject to the provisions of chapter 62-
249	340, Florida Administrative Code, in effect prior to such
250	change. Activities proposed within the boundaries of a valid
251	declaratory statement or formal determination issued pursuant to
252	a petition submitted to the department or the relevant water
253	management district on or before July 1, 2009, or within the
254	boundaries of a revalidated jurisdictional determination prior
255	to its expiration, shall continue to be exempt after July 1,
256	2009 from the changes to rule 62-340.450(3), Florida
257	Administrative Code, as described in this subsection.
258	Section 3.  Section 125.0112, Florida Statutes, is created
259	to read:
260	125.0112  Biofuels and renewable energy.--The construction
261	and operation of a biofuel processing facility or a renewable
262	energy generating facility, as defined in s. 366.91(2)(d), may
263	be considered by a local government to be a valid industrial,
264	agricultural, and silvicultural use permitted within those land
265	use categories in the local comprehensive land use plan. The
266	cultivation and production of bioenergy, as defined in s.
267	570.957(1)(a), shall be considered by a local government to be a
268	valid industrial, agricultural, and silvicultural use permitted
269	within those land use categories in the local comprehensive land
270	use plan. If the local comprehensive plan does not specifically
271	allow for the construction of a biofuel processing facility or
272	renewable energy facility, the local government shall establish
273	a specific review process that may include expediting local
274	review of any necessary comprehensive plan amendment, zoning
275	change, use permit, waiver, variance, or special exemption.
276	Local expedited review of a proposed biofuel processing facility
277	or a renewable energy facility does not obligate a local
278	government to approved such proposed use. A comprehensive plan
279	amendment necessary to accommodate a biofuel processing facility
280	or renewable energy facility shall, if approved by the local
281	government, be eligible for the alternative state review process
282	in s. 163.32465. The construction and operation of a facility
283	and related improvements on a portion of a property under this
284	section shall not affect the remainder of the property's
285	classification as agricultural under s. 193.461.
286	Section 4.  Subsection (6) is added to section 373.236,
287	Florida Statutes, to read:
288	373.236  Duration of permits; compliance reports.--
289	(6)  A permit that is approved for the use of water for a
290	renewable energy operating facility or for cultivating
291	agricultural products on lands consisting of 1,000 acres or more
292	for renewable energy, as defined in s. 366.91(2)(d), shall, upon
293	the applicant's request, be granted for a term of at least 25
294	years based on the anticipated life of the facility if there is
295	sufficient data to provide reasonable assurance that the
296	conditions for issuing a permit will be met for the duration of
297	the permit. However, a permit may be issued for a shorter
298	duration that reflects the longest period for which such
299	reasonable assurances are provided. The permittee shall provide
300	a compliance report every 5 years during the term of the permit
301	as required under subsection (4).
302	Section 5.  Subsection (4) of section 373.243, Florida
303	Statutes, is amended to read:
304	373.243  Revocation of permits.--The governing board or the
305	department may revoke a permit as follows:
306	(4)  For nonuse of the water supply allowed by the permit
307	for a period of 2 years or more, the governing board or the
308	department may revoke the permit permanently and in whole unless
309	the user can prove that his or her nonuse was due to extreme
310	hardship caused by factors beyond the user's control. However,
311	for a permit with a duration determined under s. 373.236(6), the
312	governing board or the department may revoke the permit only if
313	the nonuse of the water supply allowed by the permit is for a
314	period of 4 years or more.
315	Section 6.  Subsections (3), (4), (7), and (11), paragraph
316	(b) of subsection (13), paragraph (b) of subsection (14),
317	subsection (15), and paragraph (b) of subsection (19) of section
318	403.973, Florida Statutes, are amended to read:
319	403.973  Expedited permitting; comprehensive plan
320	amendments.--
321	(3)(a)  The Governor, through the office, shall direct the
322	creation of regional permit action teams, for the purpose of
323	expediting review of permit applications and local comprehensive
324	plan amendments submitted by:
325	1.  Businesses creating at least 100 jobs, or
326	2.  Businesses creating at least 50 jobs if the project is
327	located in an enterprise zone, or in a county having a
328	population of less than 75,000 or in a county having a
329	population of less than 100,000 which is contiguous to a county
330	having a population of less than 75,000, as determined by the
331	most recent decennial census, residing in incorporated and
332	unincorporated areas of the county., or
333	(b)  On a case-by-case basis and at the request of a county
334	or municipal government, the office may certify as eligible for
335	expedited review a project not meeting the minimum job creation
336	thresholds but creating a minimum of 10 jobs. The recommendation
337	from the governing body of the county or municipality in which
338	the project may be located is required in order for the office
339	to certify that any project is eligible for expedited review
340	under this paragraph. When considering projects that do not meet
341	the minimum job creation thresholds but that are recommended by
342	the governing body in which the project may be located, the
343	office shall consider economic impact factors that include, but
344	are not limited to:
345	1.  The proposed wage and skill levels relative to those
346	existing in the area in which the project may be located;
347	2.  The project's potential to diversify and strengthen the
348	area's economy;
349	3.  The amount of capital investment; and
350	4.  The number of jobs that will be made available for
351	persons served by the welfare transition program.
352	(c)  At the request of a county or municipal government,
353	the office or a Quick Permitting County may certify projects
354	located in counties where the ratio of new jobs per participant
355	in the welfare transition program, as determined by Workforce
356	Florida, Inc., is less than one or otherwise critical, as
357	eligible for the expedited permitting process. Such projects
358	must meet the numerical job creation criteria of this
359	subsection, but the jobs created by the project do not have to
360	be high-wage jobs that diversify the state's economy.
361	(d)  Projects located in a designated brownfield area are
362	eligible for the expedited permitting process.
363	(e)  Projects that are part of the state-of-the-art
364	biomedical research institution and campus to be established in
365	this state by the grantee under s. 288.955 are eligible for the
366	expedited permitting process, if the projects are designated as
367	part of the institution or campus by the board of county
368	commissioners of the county in which the institution and campus
369	are established.
370	(f)  Projects that result in the production of biofuels
371	cultivated on lands consisting of 1,000 acres or more, or in the
372	construction of a biofuel or biodiesel processing facility or
373	renewable energy generating facility as defined in s.
374	366.91(2)(d), are eligible for the expedited permitting process.
375	(4)  The regional teams shall be established through the
376	execution of memoranda of agreement developed by the applicant
377	and between the office with input solicited from and the
378	respective heads of the Department of Environmental Protection,
379	the Department of Community Affairs, the Department of
380	Transportation and its district offices, the Department of
381	Agriculture and Consumer Services, the Fish and Wildlife
382	Conservation Commission, appropriate regional planning councils,
383	appropriate water management districts, and voluntarily
384	participating municipalities and counties. The memoranda of
385	agreement must should also accommodate participation in the this
386	expedited process by other local governments and federal
387	agencies as circumstances warrant.
388	(7)  An appeal At the option of the participating local
389	government, appeals of a local government's its final approval
390	for a project must may be conducted pursuant to the summary
391	hearing provisions in of s. 120.574, pursuant to subsection
392	(14), and consolidated with the challenge of applicable state
393	agency actions, if any or pursuant to other appellate processes
394	available to the local government. The local government's
395	decision to enter into a summary hearing must be made as
396	provided in s. 120.574 or in the memorandum of agreement.
397	(11)  The standard form memorandum memoranda of agreement
398	must shall include guidelines to be used in working with state,
399	regional, and local permitting authorities. Guidelines may
400	include, but are not limited to, the following:
401	(a)  A central contact point for filing permit applications
402	and local comprehensive plan amendments and for obtaining
403	information on permit and local comprehensive plan amendment
404	requirements;
405	(b)  Identification of the individual or individuals within
406	each respective agency who will be responsible for processing
407	the expedited permit application or local comprehensive plan
408	amendment for the that agency;
409	(c)  A mandatory preapplication review process to reduce
410	permitting conflicts by providing guidance to applicants
411	regarding the permits needed from each agency and governmental
412	entity, site planning and development, site suitability and
413	limitations, facility design, and steps the applicant can take
414	to ensure expeditious permit application and local comprehensive
415	plan amendment review. As a part of the this process, the first
416	interagency meeting to discuss a project shall be held within 14
417	days after the office's determination that the project is
418	eligible for expedited review. Subsequent interagency meetings
419	may be scheduled to accommodate the needs of participating local
420	governments that are unable to meet public notice requirements
421	for executing a memorandum of agreement within the this
422	timeframe. Such This accommodation may not exceed 45 days from
423	the office's determination that the project is eligible for
424	expedited review;
425	(d)  The preparation of a single coordinated project
426	description form and checklist and an agreement by state and
427	regional agencies to reduce the burden on an applicant to
428	provide duplicate information to multiple agencies;
429	(e)  Establishment of A process for the adoption and review
430	of any comprehensive plan amendment needed by any certified
431	project within 90 days after the submission of an application
432	for a comprehensive plan amendment. However, the memorandum of
433	agreement may not prevent affected persons as defined in s.
434	163.3184 from appealing or participating in the this expedited
435	plan amendment process and any review or appeals of decisions
436	made under this paragraph; and
437	(f)  Additional incentives for an applicant who proposes a
438	project that provides a net ecosystem benefit.
439	(13)  Notwithstanding any other provisions of law:
440	(b)  Projects that are qualified under this section are not
441	subject to interstate highway level-of-service standards adopted
442	by the Department of Transportation for concurrency purposes.
443	The memorandum of agreement specified in subsection (5) must
444	include a process by which the applicant will be assessed a fair
445	share of the cost of mitigating the project's significant
446	traffic impacts, as defined in chapter 380 and related rules.
447	The agreement must also specify whether the significant traffic
448	impacts on the interstate system will be mitigated through the
449	implementation of a project or payment of funds to the
450	Department of Transportation. If Where funds are paid, the
451	Department of Transportation must include in the 5-year work
452	program transportation projects or project phases, in an amount
453	equal to the funds received, to mitigate the traffic impacts
454	associated with the proposed project.
455	(14)
456	(b)  Challenges to state agency action in the expedited
457	permitting process for establishment of a state-of-the-art
458	biomedical research institution and campus in the this state by
459	the grantee under s. 288.955 or a project identified in
460	paragraph (3)(f) are subject to the same requirements as
461	challenges brought under paragraph (a), except that,
462	notwithstanding s. 120.574, summary proceedings must be
463	conducted within 30 days after a party files the motion for
464	summary hearing, regardless of whether the parties agree to the
465	summary proceeding.
466	(15)  The office, working with the agencies that provide
467	input to participating in the memoranda of agreement, shall
468	review sites proposed for the location of facilities eligible
469	for the Innovation Incentive Program under s. 288.1089. Within
470	20 days after the request for the review by the office, the
471	agencies shall provide to the office a statement as to each
472	site's necessary permits under local, state, and federal law and
473	an identification of significant permitting issues, which if
474	unresolved, may result in the denial of an agency permit or
475	approval or any significant delay caused by the permitting
476	process.
477	(19)  The following projects are ineligible for review
478	under this part:
479	(b)  A project, the primary purpose of which is to:
480	1.  Effect the final disposal of solid waste, biomedical
481	waste, or hazardous waste in this state.
482	2.  Produce electrical power, unless the production of
483	electricity is incidental and not the primary function of the
484	project or the electrical power is derived from a renewable
485	energy fuel source as defined in s. 366.91(2)(d).
486	3.  Extract natural resources.
487	4.  Produce oil.
488	5.  Construct, maintain, or operate an oil, petroleum,
489	natural gas, or sewage pipeline.
490	Section 7.  This act shall take effect July 1, 2009.
491

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