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 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 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.