Florida Senate - 2018                                    SB 1402
       By Senator Simmons
       9-00612D-18                                           20181402__
    1                        A bill to be entitled                      
    2         An act relating to state assumption of federal section
    3         404 dredge and fill permitting authority; creating s.
    4         373.4146, F.S.; defining the term “state assumed
    5         waters”; providing the Department of Environmental
    6         Protection with the power and authority to adopt rules
    7         to assume and implement the section 404 dredge and
    8         fill permitting program pursuant to the federal Clean
    9         Water Act; specifying that certain rules, standards,
   10         or other requirements are not effective or enforceable
   11         until such assumption is approved; providing
   12         legislative intent; providing applicability of other
   13         state law regulating discharges; specifying the
   14         applicability of certain exemptions; specifying
   15         department authority upon assumption of the section
   16         404 dredge and fill permitting program; specifying
   17         certain procedures for permit applications; exempting
   18         the department from certain permitting timeframe
   19         limitations upon such assumption; specifying the
   20         maximum dredge and fill permit period for activities
   21         in state assumed waters; specifying certain procedures
   22         for permit reissuance; requiring the department to
   23         adopt rules to create an expedited permit review
   24         process; specifying applicability of certain
   25         administrative procedures; authorizing the department
   26         to delegate certain activities; specifying that the
   27         department must retain the authority to review,
   28         modify, revoke, or rescind any permit authorizing
   29         activities in state assumed waters which is issued by
   30         a delegated entity; providing an effective date.
   32  Be It Enacted by the Legislature of the State of Florida:
   34         Section 1. Section 373.4146, Florida Statutes, is created
   35  to read:
   36         373.4146 State assumption of the federal Clean Water Act,
   37  section 404 dredge and fill permitting program.—
   38         (1)As used in this section, the term “state assumed
   39  waters” means waters of the United States that the state assumes
   40  permitting authority over pursuant to s. 404 of the Clean Water
   41  Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq.,
   42  and rules promulgated thereunder, for the purposes of permitting
   43  the discharge of dredge or fill material.
   44         (2) The department has the power and authority to assume,
   45  in accordance with 40 C.F.R. part 233, the dredge and fill
   46  permitting program established in s. 404 of the Clean Water Act,
   47  Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and
   48  rules promulgated thereunder. The department may adopt any
   49  federal requirements, criteria, or regulations necessary to
   50  obtain assumption, including, but not limited to, the guidelines
   51  specified in 40 C.F.R. part 230 and the public interest review
   52  criteria in 33 C.F.R. s. 320.4(a). Any rule, standard, or other
   53  requirement adopted pursuant to the authority granted in this
   54  subsection for purposes of obtaining assumption may not become
   55  effective or otherwise enforceable until the United States
   56  Environmental Protection Agency has approved the state’s
   57  assumption application. This legislative authority is intended
   58  to be sufficient to enable the department to assume and
   59  implement the federal section 404 dredge and fill permitting
   60  program in conjunction with the environmental resource
   61  permitting program established in this chapter.
   62         (3) To the extent that state law applies and does not
   63  conflict with the federal requirements identified in subsection
   64  (2), the application of such state law to further regulate
   65  discharges in state assumed waters is not prohibited. Provisions
   66  of state law which conflict with the federal requirements
   67  identified in subsection (2) do not apply to state administered
   68  section 404 permits.
   69         (4)A state administered section 404 permit is not required
   70  for activities as specified in 33 U.S.C. s. 1344(f), 40 C.F.R.
   71  s. 232.3, or 33 C.F.R. s. 323.4. The exemptions established in
   72  ss. 373.406, 373.4145, and 403.813 still apply to environmental
   73  resource permits. However, the exemptions identified in ss.
   74  373.406, 373.4145, and 403.813 may not be applied to state
   75  administered section 404 permits.
   76         (5)Upon state assumption of the section 404 dredge and
   77  fill permitting program pursuant to subsection (2):
   78         (a) The department must grant or deny an application for a
   79  state administered section 404 permit within the time allowed
   80  for permit review under 40 C.F.R. part 233, subparts D and F.
   81  The department is specifically exempted from the time
   82  limitations provided in ss. 120.60 and 373.4141 for state
   83  administered section 404 permits.
   84         (b)All state administered section 404 permits issued under
   85  this section must be for a period of no more than 5 years. Upon
   86  an applicant’s submittal of a timely application for reissuance,
   87  a state administered section 404 permit does not expire until
   88  the department takes final action upon the application or until
   89  the last day for seeking judicial review of the agency order or
   90  a later date fixed by order of the reviewing court. If the
   91  department fails to render a permitting decision within the time
   92  allowed by s. 404 of the Clean Water Act, Pub. L. No. 92-500, as
   93  amended, 33 U.S.C. ss. 1251 et seq., 40 C.F.R. part 233,
   94  subparts D and F, or a memorandum of agreement executed by the
   95  department and the United States Environmental Protection
   96  Agency, whichever is shorter, the applicant may apply for an
   97  order from the circuit court requiring the department to render
   98  a decision within a specified time. The department must adopt by
   99  rule an expedited permit review process that is consistent with
  100  federal law for the reissuance of state administered section 404
  101  permits where there have been no material changes in the scope
  102  of the project as originally permitted, site and surrounding
  103  environmental conditions have not changed, and the applicant
  104  does not have a history of noncompliance with the existing
  105  permit. The decision by the department to approve the reissuance
  106  of any state administered section 404 permit issued pursuant to
  107  this section is subject to ss. 120.569 and 120.57 only with
  108  respect to any material permit modification or material changes
  109  in the scope of the project as originally permitted.
  110         (c)The department may delegate administration of the state
  111  administered section 404 permitting program if such delegation
  112  is in accordance with federal law. The department must retain
  113  the authority to review, modify, revoke, or rescind a state
  114  administered section 404 permit issued by any delegated entity
  115  to ensure consistency with federal law.
  116         Section 2. This act shall take effect upon becoming a law.