HB 1453

1	A bill to be entitled
2	An act relating to coral reef protection; creating s.
3	380.29, F.S.; providing a short title; providing
4	legislative findings and intent; providing definitions;
5	requiring the responsible party to notify the Department
6	of Environmental Protection when a vessel impacts a coral
7	reef; providing requirements for the removal of vessels;
8	authorizing the department to recover specified damages
9	from the responsible party; authorizing the department to
10	use a certain methodology in calculating damages;
11	authorizing the department to assess civil penalties;
12	providing a limitation; authorizing the department to
13	enter into delegation agreements with other state agencies
14	or coastal counties for purposes of coral reef protection;
15	authorizing the department to adopt rules; providing
16	construction; amending s. 253.04, F.S.; deleting
17	provisions authorizing the department to develop a
18	schedule for the assessment of civil penalties for damage
19	to coral reefs; amending s. 380.0558, F.S.; revising
20	definitions of the terms "coral reefs" and "natural
21	resources"; revising authorization requirements for
22	certain expenditure of moneys in the Ecosystem Management
23	and Restoration Trust Fund; amending s. 403.1651, F.S.;
24	authorizing the department to enter into settlement
25	agreements requiring parties responsible for injury to or
26	destruction of coral reefs to pay a third party to fund
27	projects related to the restoration of coral reefs, the
28	mitigation of injuries to coral reefs, or specified law
29	enforcement activities; providing an effective date.
30
31	Be It Enacted by the Legislature of the State of Florida:
32
33	Section 1.  Section 380.29, Florida Statutes, is created to
34	read:
35	380.29  Coral reef protection.---
36	(1)  This section may cited as the "Florida Coral Reef
37	Protection Act."
38	(2)  The Legislature finds that coral reefs are valuable
39	natural resources that contribute ecologically, aesthetically,
40	and economically to the state. Therefore, the Legislature
41	declares it is in the best interest of the state to clarify the
42	power and authority of the Department of Environmental
43	Protection to protect coral reefs through the timely and
44	efficient recovery of monetary damages resulting from vessel
45	groundings and anchoring-related injuries. It is the intent of
46	the Legislature that the department, as staff to the Board of
47	Trustees of the Internal Improvement Trust Fund and by virtue of
48	its own regulatory powers, be recognized as the state's lead
49	trustee for coral reef resources associated with sovereign
50	submerged lands unless preempted by federal law.
51	(3)  As used in this section, the term:
52	(a)  "Aggravating circumstances" means operating,
53	anchoring, or mooring a vessel in a reckless, careless, or
54	wanton manner, under the influence of drugs or alcohol, or
55	otherwise with disregard for boating regulations concerning
56	speed, navigation, or safe operation.
57	(b)  "Coral" means species of the phylum Cnidaria found in
58	state waters, including:
59	1.  All species of the class Anthozoa, including subclass
60	Octocorallia, commonly known as gorgonians, soft corals, and
61	telestaceans;
62	2.  The order Scleractinia, commonly known as stony corals;
63	3.  The order Stolonifera, including the organisms commonly
64	known as organpipe corals;
65	4.  The order Antipatharia, commonly known as black corals;
66	and
67	5.  The order Hydrozoa, including the family Milleporidae
68	and the family Stylasteridae, commonly known as hydrocorals.
69	(c)  "Coral reef" means limestone structures, composed
70	wholly or partially of living stony corals or stony coral
71	skeletal remains, hosting other coral and associated benthic
72	invertebrates and plants; hard-bottom communities, also known as
73	live bottom habitat or colonized pavement, characterized by the
74	presence of stony coral and associated reef organisms; or worm
75	reefs created by Phragmatopoma species.
76	(d)  "Damages" means money paid by any person or entity,
77	whether voluntarily or as a result of administrative or judicial
78	action, to the state as compensation, restitution, penalty, or
79	mitigation for causing injury to or destruction of coral reefs.
80	(e)  "Department" means the Department of Environmental
81	Protection.
82	(f)  "Responsible party" means the owner, operator,
83	manager, or insurer of any vessel.
84	(4)  The responsible party for a vessel that has run
85	aground, struck, anchored on, or otherwise damaged a coral reef
86	must notify the department of such event within 24 hours after
87	its occurrence. Unless otherwise prohibited or restricted by the
88	United States Coast Guard, the responsible party shall remove or
89	cause the removal of the grounded or anchored vessel as soon as
90	possible and no later than 72 hours after the initial grounding
91	or anchoring absent extenuating circumstances such as weather,
92	sea state, or hazards that would prevent safe removal of the
93	vessel. The responsible party shall consult with the department
94	to remove or cause the removal of the vessel or its anchor in a
95	manner that avoids further damage to coral reefs and cooperate
96	with the department to undertake damage assessment and primary
97	restoration of the coral reef in a timely fashion.
98	(5)(a)  In any action or suit initiated under chapter 253
99	or chapter 403 for damage to coral reefs, the department, acting
100	on its own behalf or on behalf of the Board of Trustees of the
101	Internal Improvement Trust Fund, as appropriate, may recover all
102	damages from the responsible party, including, but not limited
103	to:
104	1.  Compensation for the cost of restoring, replacing, or
105	acquiring the equivalent of the coral reef injured and the value
106	of the lost use and services of the coral reef pending the
107	restoration, replacement, or acquisition or compensation
108	equivalent to the value of the coral reef injured if the coral
109	reef cannot be restored or replaced or its equivalent acquired.
110	2.  The cost of damage assessments, including staff time.
111	3.  The cost of activities undertaken by or at the request
112	of the department to minimize or prevent further injury to the
113	coral or coral reef pending restoration, replacement, or
114	acquisition of an equivalent.
115	4.  The reasonable cost of monitoring appropriate to the
116	injured, restored, or replaced coral reef for a period of no
117	less than 10 years.
118	5.  The cost of enforcement actions undertaken in response
119	to the destruction or loss of or injury to a coral reef,
120	including court costs, attorney's fees, and expert witness fees.
121	(b)  The department may, by rule, use habitat equivalency
122	analysis to calculate compensation under this subsection,
123	including the parameters for such calculation.
124	(6)  In addition to the compensation provided under
125	subsection (5), the department may assess civil penalties;
126	however, the total amount of penalties levied may not exceed
127	$250,000 per occurrence, as follows:
128	(a)  For failure to notify the department in accordance
129	with subsection (4), $500.
130	(b)  For any anchoring of a vessel on a coral reef on
131	sovereign submerged lands or for any other damage to a coral
132	reef totaling 1 square meter or less, provided the responsible
133	party has been issued at least one written warning, $150; with
134	aggravating circumstances, an additional $150; and occurring
135	within a state park or aquatic preserve, an additional $150.
136	(c)  For damage totaling more than 1 meter but less than or
137	equal to 10 square meters of reef area, $300 per square meter;
138	with aggravating circumstances, an additional $300 per square
139	meter; and occurring within a state park or aquatic preserve, an
140	additional $300 per square meter.
141	(d)  For damage totaling more than 10 square meters of reef
142	area, $1,000 per square meter; with aggravating circumstances,
143	an additional $1,000 per square meter; and occurring within a
144	state park or aquatic preserve, an additional $1,000 per square
145	meter.
146	(e)  For a second violation, the total penalty may be
147	doubled.
148	(f)  For a third violation, the total penalty may be
149	tripled.
150	(g)  For any violation after a third violation, the total
151	penalty may be quadrupled.
152	(7)  To carry out the intent of this section, the
153	department may enter into delegation agreements with another
154	state agency or any coastal county with coral reefs within its
155	jurisdiction. In any decision to execute such an agreement, the
156	department must consider the ability of the potential delegee to
157	adequately and competently perform the duties required to carry
158	out the intent of this section. When such agreements are
159	executed by the parties and incorporated in department rule, the
160	delegee shall have all rights accorded the department by this
161	section. This subsection does not require the department, a
162	state agency, or a coastal county to enter into such an
163	agreement.
164	(8)  The department may adopt rules pursuant to ss.
165	120.536(1) and 120.54 to administer this section.
166	(9)  This section does not divest other state agencies and
167	political subdivisions of the state of their interests in
168	protecting coral reefs or prevent the department or other state
169	agencies from entering into agreements with federal authorities
170	related to the administration of the Florida Keys National
171	Marine Sanctuary.
172	Section 2.  Subsections (3) through (7) of section 253.04,
173	Florida Statutes, are amended to read:
174	253.04  Duty of board to protect, etc., state lands; state
175	may join in any action brought.--
176	(3)  The Department of Environmental Protection is
177	authorized to develop by rule a schedule for the assessment of
178	civil penalties for damage to coral reefs in state waters. The
179	highest penalty shall not exceed $1,000 per square meter of reef
180	area damaged. The schedule may include additional penalties for
181	aggravating circumstances, not to exceed $250,000 per
182	occurrence. A determination of aggravating circumstances shall
183	be based on factors relating to the cause of the damage such as,
184	but not limited to:
185	(a)  Absence of extenuating circumstances, such as weather
186	conditions or other factors beyond the control of the vessel
187	operator.
188	(b)  Disregard for safe boating practices.
189	(c)  Whether the vessel operator was under the influence of
190	alcohol or drugs.
191	(d)  Navigational error.
192	(e)  Disregard for speed limits or other boating
193	regulations.
194	(f)  Failure to use available charts and equipment or to
195	have such equipment on board.
196	(g)  Willful or intentional nature of the violation.
197	(h)  Previous coral reef damage caused by the vessel
198	operator.
199
200	Penalties assessed according to this section may be doubled for
201	damage to coral reefs located within the boundaries of John
202	Pennekamp Coral Reef State Park.
203	(3)(4)  Whenever any person or the agent of any person
204	knowingly refuses to comply with or willfully violates any of
205	the provisions of this chapter so that such person causes damage
206	to the lands of the state or products thereof, including removal
207	of those products, such violator is liable for such damage.
208	Whenever two or more persons or their agents cause damage, and
209	if such damage is indivisible, each violator is jointly and
210	severally liable for such damage; however, if such damage is
211	divisible and may be attributed to a particular violator or
212	violators, each violator is liable only for that damage and
213	subject to the fine attributable to his or her violation.
214	(4)(5)  If a person or the person's agent as described in
215	subsection (2) fails to comply with an order of the board to
216	remove or alter a structure on state-owned land, the board may
217	alter or remove the structure and recover the cost of the
218	removal or alteration from such person.
219	(5)(6)  All fines imposed and damages awarded pursuant to
220	this section are a lien upon the real and personal property of
221	the violator or violators, enforceable by the Department of
222	Environmental Protection as are statutory liens under chapter
223	85.
224	(6)(7)  All moneys collected pursuant to fines imposed or
225	damages awarded pursuant to this section shall be deposited into
226	the Internal Improvement Trust Fund created by s. 253.01 and
227	used for the purposes defined in that section.
228	Section 3.  Paragraphs (a) and (d) of subsection (1) and
229	paragraph (c) of subsection (5) of section 380.0558, Florida
230	Statutes, are amended to read:
231	380.0558  Coral reef restoration.--
232	(1)  DEFINITIONS.--As used in this section, the term:
233	(a)  "Coral reefs" means limestone structures, composed
234	wholly or partially of living stony corals or stony coral
235	skeletal remains, hosting other coral and associated benthic
236	invertebrates and plants; hard-bottom communities, also known as
237	live bottom habitat or colonized pavement, characterized by the
238	presence of stony coral and associated reef organisms; or worm
239	reefs created by Phragmatopoma species the assemblage of corals
240	and other organisms that are actively building three-dimensional
241	reef structures off the southern coast of Florida.
242	(d)  "Natural resources" means land, air, water,
243	groundwater, drinking water supplies, fish and their habitats,
244	wildlife and their habitats, biota, and other such resources
245	belonging to, managed by, held in trust by, appertaining to, or
246	otherwise controlled by the state of Florida and situated in an
247	area of critical state concern or offshore from an area of
248	critical state concern.
249	(5)  TRUST FUND EXPENDITURES.--Moneys in the fund received
250	from damages recovered for injury to, or destruction of, coral
251	reefs or natural resources shall be expended only for the
252	following purposes:
253	(c)  To pay for alternative projects selected by the
254	department as staff to the Board of Trustees of the Internal
255	Improvement Trust Fund. Any such project shall be selected on
256	the basis of its anticipated benefits to the residents of this
257	state who used the injured or destroyed coral reefs or other
258	natural resources or will benefit from the alternative project.
259	Section 4.  Paragraph (b) of subsection (2) of section
260	403.1651, Florida Statutes, is amended to read:
261	403.1651  Ecosystem Management and Restoration Trust
262	Fund.--
263	(2)  The trust fund shall be used for the deposit of all
264	moneys recovered by the state:
265	(b)  For injury to or destruction of coral reefs, which
266	moneys would otherwise be deposited into the General Revenue
267	Fund or the Internal Improvement Trust Fund. The department may
268	enter into settlement agreements that require responsible
269	parties to pay a third party to fund projects related to the
270	restoration of coral reefs, mitigation of injuries to coral
271	reefs, or, at the request of a law enforcement agency,
272	activities related to coral reef injury response, investigation,
273	and assessment.
274	Section 5.  This act shall take effect July 1, 2009.

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