Florida Senate - 2009 SB 2016 By Senator Bennett 21-01274A-09 20092016__ 1 A bill to be entitled 2 An act relating to environmental permitting; amending 3 s. 373.4144, F.S.; providing legislative intent; 4 revising provisions requiring the Department of 5 Environmental Protection to develop and use a 6 mechanism consolidating federal and state wetland 7 permitting programs; authorizing implementation of a 8 state programmatic general permit or regional general 9 permits by the department and water management 10 districts for certain dredge and fill activities; 11 specifying conditions applicable to such permits; 12 amending s. 373.4211, F.S.; delaying the effective 13 date of a rule adding slash pine and gallberry to the 14 list of facultative plants; revising provisions 15 concerning the methodologies used to delineate the 16 landward extent of wetlands and surface waters; 17 revising provisions concerning the vegetative index 18 used to delineate the landward extent of wetlands and 19 surface waters; providing for permit modification 20 under certain circumstances; providing for certain 21 declaratory statements from the department; providing 22 exemptions for certain permit petitions and 23 applications relating to specified activities; 24 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 of 33 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 to 41 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 regional 52 general permits to eliminate overlapping federal regulations and 53 state rules that seek to protect the same resource and to avoid 54 duplication of permitting between the United States Army Corps 55 of Engineers and the department for minor work located in waters 56 of the United States, including navigable waters, thus 57 eliminating, in appropriate cases, the need for a separate 58 individual approval from the United States Army Corps of 59 Engineers while ensuring the most stringent protection of 60 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 directed78to develop, on or before October 1, 2005, a mechanism or plan to79consolidate, to the maximum extent practicable, the federal and80state wetland permitting programs. It is the intent of the81Legislature that all dredge and fill activities impacting 1082acres or less of wetlands or waters, including navigable waters,83be processed by the state as part of the environmental resource84permitting program implemented by the department and the water85management districts. The resulting mechanism or plan shall86analyze and propose the development of an expanded state87programmatic general permit program in conjunction with the88United States Army Corps of Engineers pursuant to s. 404 of the89Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss.901251 et seq., and s. 10 of the Rivers and Harbors Act of 1899.91Alternatively, or in combination with an expanded state92programmatic general permit, the mechanism or plan may propose93the creation of a series of regional general permits issued by94the United States Army Corps of Engineers pursuant to the95referenced statutes. All of the regional general permits must be96administered by the department or the water management districts97or 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 Speaker108of the House of Representatives and the President of the Senate109a report proposing any required federal and state statutory110changes that would be necessary to accomplish the directives111listed in this section and to coordinate with the Florida112Congressional Delegation on any necessary changes to federal law113to implement the directives.114 (3)Nothing inThis section does notshall be construed to115 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 of 126 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. 187 (c) Surface water and wetland delineations identified and 188 approved by a permit issued under rules adopted under this part 189 before July 1, 2009, shall remain valid until expiration of the 190 permit, notwithstanding the changes to rule 62-340.450(3), 191 Florida Administrative Code, as described in this subsection. 192 For purposes of this paragraph, the term “identified and 193 approved” means: 194 1. The delineation was field-verified by the permitting 195 agency and such verification was surveyed as part of the 196 application review process for the permit; or 197 2. The delineation was field-verified by the permitting 198 agency and approved pursuant to the permit. 199 200 Where surface water and wetland delineations were not identified 201 and approved pursuant to the permit issued under rules adopted 202 under this part, delineations within the geographical area to 203 which the permit applies shall be determined pursuant to the 204 rules applicable at the time the permit was issued, 205 notwithstanding the changes to rule 62-340.450(3), Florida 206 Administrative Code, as described in this subsection. This 207 paragraph also applies to any modification of the permit issued 208 under rules adopted pursuant to this part which does not 209 constitute a substantial modification within the geographical 210 area to which the permit applies. 211 (d) Any declaratory statement issued by the department 212 under s. 403.9144, pursuant to rules adopted thereunder, or by 213 the department or a water management district under s. 373.421, 214 in response to a petition filed on or before July 1, 2009, shall 215 continue to be valid for the duration of such declaratory 216 statement. Any petition pending on or before July 1, 2009, is 217 exempt from the changes to rule 62-340.450(3), Florida 218 Administrative Code, as described in this subsection, and is 219 subject to the provisions of chapter 62-340, Florida 220 Administrative Code, in effect prior to such change. Activities 221 proposed within the boundaries of a valid declaratory statement 222 issued pursuant to a petition submitted to the department or the 223 relevant water management district on or before July 1, 2009, or 224 a revalidated jurisdictional determination prior to its 225 expiration, shall continue thereafter to be exempt from the 226 changes to rule 62-340.450(3), Florida Administrative Code, as 227 described in this subsection. 228 Section 3. This act shall take effect July 1, 2009.