From the standpoint of environmental and land use law, the 2004 Regular Legislative Session was a mild event.  Most of the legislative debate and energy was focused on non-environmental and land use issues such as reforming the citizen-initiated constitutional amendment process, freezing telephone rate increases, taxing some cigarette manufacturers, and creating a state-wide voluntary pre-kindergarten program.  In the environmental arena, the most visible issues involved water supply planning and water conservation, which culminated in the passage of CS/CS/HB 293 by Representative David Russel.  A bill creating additional protections for the Wekiva River area in Central Florida also passed.

      Most of the contentious environmental debate centered on potential legislation regarding the ability of the water management districts to reserve water for the natural environment, alternative energy, and reforms to the Development of Regional Impact (DRI) process.  Bills resolving these contentious issues did not pass.  However, many bills of interest to environmental and land use law practitioners did pass, including one defining an “areawide DRI.”  These bills are summarized below.  Water supply is expected to be the focus of the 2005 Legislative session and, in the interim, work on a potential water reservations bill is continuing.  We hope you find this summary informative and helpful.  

CS/CS/SB 162 Invalidating Development Orders (Bennett) - This legislation prohibits a judicial determination invalidating a local government development order due to deficiencies in the approval standards of the local government’s development regulations.  However, the prohibition on invalidatinga development order does not apply if the development order is not the subject of a pending appeal and the time for filing an appeal has expired.

The legislation also specifies that its prohibitions on invalidating development orders do not affect the timely institution of other available remedies at law.  Among the remedies that are specifically not precluded by the invalidation prohibitions in the bill are invalidating development orders through a common law writ of certiorari, or original proceedings instituted under Section 163.3215, Florida Statutes, to challenge the validity of a development order due to its inconsistency with the local government's adopted comprehensive plan.

Additionally, the bill's provisions apply retroactively to any development order issued after January 1, 2002.   As a result of this retroactivity provision, the bill will apply to the development orders issued during the then-ongoing litigation, which resulted in the decision of the Third District Court of Appeal in Miami-Dade County v. Omnipoint Holdings, Inc., 811 So. 2d 767 (Fla. 3d DCA 2002).  In the Omnipoint case, the Third DCA invalidated various sections of the Miami-Dade County land development code because the code provisions lacked objective standards.

This bill became effective May 12, 2004.  (Chapter 2004-37, L.O.F.)

CS/CS/HB 293 Water Conservation and Water Supply (Russell) - CS/CS/HB 293 requires the Department of Environmental Protection (DEP), in cooperation with the water management districts and other stakeholders, to develop a comprehensive statewide water conservation program for public water supply utilities.  Among other things, this statewide water conservation program will (a) encourage utilities to implement water conservation programs that are economically efficient, effective, affordable and appropriate; (b) develop a standardized water conservation planning process for utilities; and (c) create a Florida-specific water conservation guidance document containing a menu of water conservation practices that will assist utilities in designing and implementing goal-based, utility-specific water conservation plans tailored for their individual service areas.  In addition, the bill states that when reviewing a utility’s proposed conservation rate structure, a water management district must give the utility wide latitude in selecting rates and must limit its review to whether the utility has provided reasonable assurance that the rate structure contains a schedule of rates designed to promote the efficient use of water through economic incentives.  The bill prohibits a water management district from fixing or revising water rates.  A report on the progress of this statewide program is due to the legislature on December 1, 2005.

The legislation also allows the water management districts to require the reuse of reclaimed water when environmentally, economically, and technically feasible and the reclaimed water is of such quality and reliability as is necessary to the user.  However, water management districts are prohibited from requiring a reclaimed water provider to redirect reclaimed water from one user to another or to provide uncommitted reclaimed water to a specific user if the provider anticipates using such water either itself or through a different user within a reasonable amount of time.  The bill also provides that reuse feasibility studies performed for DEP pursuant to Section 403.064, Florida Statute, must be given significant consideration by a water management district when analyzing the economic, environmental, and technical feasibility of providing reclaimed water for use as part of a consumptive use permit application.

In the area of water supply planning, the bill requires local governments’ comprehensive plans to address the water supply sources necessary to meet and achieve the existing and projected water use demand for the established planning period, considering the applicable water management district regional water supply plan.  The bill also requires the water management districts’ regional water supply plans to include any reservations of water adopted, as well as identify any instances in which variances to mining reclamation can be used for water supply.  The bill prohibits the water management districts from using regional water supply plans in the review of consumptive use permit applications unless the plan, or applicable portion thereof, has been adopted by rule.

The legislation also empowers the water management districts to adopt rules identifying preferred water supply sources for consumptive uses.  A preferred water supply source must provide a sustainable new water supply to meet the existing and projected reasonable-beneficial uses of a water supply planning region.  A water management district may consider an applicant’s use of a preferred water supply source to determine whether that applicant’s consumptive use is consistent with the public interest.  If requested by the applicant, a consumptive use permit issued for the use of a preferred water supply source must be issued for a minimum of 20 years.  However, the legislation does not require the use of preferred water supply sources.

Finally, the bill addresses some financial issues by empowering the water management districts to establish revolving load funds to provide additional funding assistance for developing alternative water supplies.  Florida’s Safe Drinking Water Act administrative fines (Section 403.121, F.S.) are revised to be consistent with federal law.  DEP is also allowed to deposit revolving loan funds received under the Federal Water Pollution Control Act in financial institutions earning less than the prevailing rate for United States Treasury securities to enable such financial institutions to make below-market interest rate loans to entities qualified to receive loans under that program.

This bill became effective on June 24, 2004.

CS/SB 338 Brownfield Loan Guarantees (Constantine) - This bill changes the funding source for the Brownfield Area Loan Guarantee Program from investment earnings on the Non-mandatory Land Reclamation Trust Fund to the investment of the balance of funds maintained in the Inland Protection Trust Fund (IPTF).  This change in trust funds would allow up to $5 million of the balance in the IPTF to be used for the brownfield loan guarantees or loan loss reserves.  The use of the fund balance for a guaranty of loss reserve would lock up the amount reserved for the period of reservation (up to five years), making it unavailable for the specific purposes of the IPTF.  The legislature must review this loan guarantee program by January 1, 2007.

The bill also provides immunity from liability for contaminated property within the designated brownfield area that escheats to a county.  Additionally, there are several clarifying and technical amendments, revising terms and deleting obsolete references.  One such amendment redefines “brownfield sites” to be similar to the definition used by the U.S. Environmental Protection Agency (USEPA).  This change will assist the DEP in administration of the federal Brownfield grants received from the USEPA.

This bill became effective on July 1, 2004.

HB 373 Southwest Florida Water Management District Boundary Change (Spratt)- HB 373 would have changed the location of the boundary between the Southwest Florida Water Management District and the South Florida Water Management District in Highlands County.  Currently, Highlands County is divided between the Southwest Florida Water Management District and the South Florida Water Management District.  The bill would have placed all of Highlands County into the South Florida Water Management District.

This bill was vetoed by the Governor.

CS/HB 539 Developments of Regional Impact (Justice) - This legislation makes changes to the law regarding developments of regional impact (DRIs).  The legislation increases the guidelines and standards for residential, hotel, motel, office, and retail development for multiuse developments in urban central business districts and regional activity centers under certain conditions.  The legislation also impacts areawide DRIs.  An areawide DRI is one that, at a minimum, encompasses a defined and improved planning area and includes as least two or more developments; maps and defines the land uses proposed; integrates a capital improvements program for transportation and other public facilities; incorporates land development regulations and other restrictions to protect resources and facilities of regional and state significance; and specifies responsibilities and identifies mechanisms for carrying out all commitments in the areawide development plan and compliance with any areawide development order.  More specifically, the legislation establishes the presumption that certain extensions of a buildout date of an areawide DRI does not create a substantial deviation under the DRI law. 

This bill became effective on July 1, 2004.  (Chapter 2004-10, L.O.F.)

CS/SB 540 Manatee Protection (Bennett) - This bill requires the Florida Fish and Wildlife Commission (FWC) to give great weight to existing state manatee protection rules when determining whether additional rules are necessary in a region where measurable biological goals are being achieved.  However, the FWC may amend existing rules or adopt new ones to address risks or circumstances of a particular area or body of water.  The FWC is also directed to develop rules to define how measurable biological goals will be used when evaluating the need for additional rules. 

The bill conforms state law with federal law by allowing an exemption from penalties assessed for violations of motorboat regulation, if the activity is reasonably necessary to prevent loss of human life or a vessel in distress, or to render necessary assistance to persons or vessels in distress.  Finally, the bill requires several studies on manatee protection, habitat and sign placement and boat speed.

This bill became effective on July 1, 2004.

HB 987 Pasco County Water (Anderson) - This bill establishes a pilot program in Pasco County to address the monopoly of water utilities and to respond better to customer complaints of “rotten-egg” odor and “black water.”  The bill authorizes the chair of the Pasco County Commission to establish a monopoly water utility ad hoc committee to analyze the customer complaints and if necessary, recommend requiring new technology to address the water concerns.  The committee shall be in existence no longer than two years and will consult with DEP, USEPA and the Public Service Commission.  The law shall expire July 1, 2005.

This bill became effective on June 17, 2004.

CS/HB 989 Road Construction and Bridge Repair (Spratt) - This bill gives Local governments and land owners located within the Suwannee River Water Management District the same road construction and bridge repair permit exemption previously granted within the boundaries of the Northwest Florida Water Management District.  Additionally, DEP is directed to initiate rulemaking to develop a “no fee general permit” applicable to a qualified project reviewed by DEP or the applicable water management district.  Once adopted, the general permit will have statewide applicability and supercede the above exemption in both water management districts.

This bill became effective on April 14, 2004. (Chapter 2004-16, L.O.F.)

SB 1156 Shooting Ranges (Peaden) - This bill provides shooting or gun ranges immunity from liability for clean-up as long as the shooting range makes good faith efforts to implement “situation appropriate environmental management practices” by January 1, 2006.  The bill permits DEP to assist in contamination assessments at ranges, allows DEP to perform contamination assessments under certain circumstances, and provides for the application of risk based cleanup principles.  Additionally, it requires the withdraw of civil and administrative litigation brought by a Florida public entity within 90 days of the act becoming law, provides a civil cause of action to recover costs of litigation, attorney’s fees, and other damages.  The legislation also creates a first-degree misdemeanor offense if any official, employee, or other agent of a public entity intentionally and maliciously brings a claim against a shooting range in violation of the provisions of this bill.  This controversial bill passed by an 80 to 35 vote in the House and a 33 to 6 vote in the Senate.

This bill became effective on May 13, 2004.

CS/CS/CS/SB 1214 Wekiva Parkway Protection Act (Constantine) - This bill is designed to implement the recommendations of the second Wekiva Basin Coordinating Committee (Coordinating Committee).  It provides legislative intent and sets in place significant regulation for the protection of the Wekiva river system and associated springshed area in Lake, Orange, and Seminole Counties known as the Wekiva Study Area (Study Area).  The bill authorizes the construction of the Wekiva Parkway and related transportation facilities following design criteria contained in the recommendations of the initial Wekiva River Basin Area Task Force Report and the recommendations of the Coordinating Committee.  The bill calls for the Seminole County Expressway Authority, the Department of Transportation, and the Florida Turnpike Enterprise to locate the precise corridor and the interchanges of the Wekiva Parkway between SR 429 and Interstate 4.

The Orlando-Orange County Expressway Authority is granted the authority to act as a third party acquisition agent not only to acquire the rights-of-way for the corridor and to acquire land for roadway impact mitigation, but also to acquire the lands specifically identified as follows:
·       Neighborhood Lakes – 1,587 acres

·       Seminole Woods/Swamp – 5,353 acres

·       New Garden Coal – 1,605 acres

·       Pine Plantation – 617 acres

The funds for these four acquisitions will come from moneys provided through various environmental purchasing programs, as well as certain expressway dollars.

This bill directs a number of studies and rulemaking.  For example, DEP must conduct a series of studies, including water quality and wastewater treatment studies.  Subsequent to the completion of the studies by December 1, 2004, the DEP must initiate rulemaking by March 1, 2005, to achieve nitrogen reductions protective of surface and groundwater quality in the Study Area.  The Department of Health (DOH) must study onsite disposal system standards and prepare a report regarding these standards by December 1, 2004. DOH must then undertake rulemaking by March 1, 2005, to achieve nitrogen reduction protection of water quality.  The DOH is also directed to promote a more stringent level of stormwater treatment for existing and new septic tank systems.  The St. Johns River Water Management District is directed to: initiate rulemaking to amend its recharge criteria; adopt a consolidated environmental resources permit/consumptive use permit for projects that require permits that involve irrigation of urban landscape, golf course, or recreational areas in the Study Area; analyze the impact of redevelopment projects in the Wekiva River Basin upon aquifer recharge and determine whether to adopt rules with regard to redevelopment projects; consider revising the consumptive use permit thresholds in the Study Area to address proposed water withdrawals above 50,000 gallons per day; and establish pollution load reduction goals for the Study Area by December 1, 2005.  The bill also directs local governments to adopt new master stormwater management plans, wastewater facility plans and comprehensive plans amendments.

Finally, the bill creates a new Wekiva River Basin Commission consisting of 19 representatives of various local government and state regulatory entities.  Originally, the Study Committee had proposed an appropriation of $25 million to help “jump start” the road project and facilitate the acquisition of the four previously named environmental parcels.  A cursory review of the budget shows that no specific funding has been appropriated, although various agencies have been instructed to use their existing resources to implement this project. 

This bill became effective July 1, 2004.

CS/HB 1313 Use of Illegal Nets (Gardiner) - This bill revises the criminal and civil penalties applicable to flagrant violations of the marine net fishing limitations contained in Section 16, Article X of the Florida Constitution, and the statutes or rules implementing that provision.  A “flagrant violation” is defined as the illegal possession or use of a monofilament net or a net with a mesh area larger than 2,000 square feet.  Commission of a flagrant violation is a third degree felony, punishable by a mandatory $5,000 penalty and a mandatory suspension of all saltwater fishing privileges for 12 months for a first time offense.  A second and subsequent offense requires a $5,000 penalty, a lifetime revocation of the saltwater products license and forfeiture of all equipment used in the violation.

This bill became effective on July 1, 2004

HB 1545 Monroe County Sewage Treatment (Sorenson) - This bill extends the deadline for Monroe County onsite sewage and treatment disposal systems to meet the requirements set forth in Chapter 99-395, Laws of Florida.  The current deadline of July 1, 2004 is being delayed until July 1, 2010.  For the next six years, the bill allows the sewage systems in the Florida Keys to meet “interim construction standards” established in 1998 Department of Health rules.

This bill became effective on June 17, 2004.

CS/CS/SB 1712 Agricultural Economic Development (Argenziano) - This bill contains several provisions related to agricultural land and agricultural water use.  For one, the bill amends the Bert J. Harris Private Property Rights Protection Act to provide that where a landowner suffers an inordinate burden due to the reclassification, rezoning, or a lowering of the residential density of agricultural land, the landowner has an immediate cause of action, and the time period between filing a claim and initiating legal action is reduced from 180 days to 90 days.  The bill also provides that owners of “agricultural enclaves” (defined as areas where 75 percent or more of the surrounding land consists of industrial, commercial, or residential existing or approved by the local government), can apply for an amendment to the local comprehensive plan to allow uses and intensities consistent with the surrounding area.  Section 163.2517, F.S. is amended to provide that such a comprehensive plan amendment is deemed to prevent urban sprawl and be in compliance with Section 163.3184, F.S.

In the area of agricultural water supply, the bill states that water management district regional water supply plans must recognize limitations on alternative sources of water available to self-suppliers.  Water management districts must also inform applicants for agricultural water use permits about the availability of 20-year permits.  By July 1, 2005, the Department of Agriculture and Consumer Services and each of the water management districts must enter into a memorandum of agreement regarding the processing of Environmental Resource Permitting exemptions for agriculture water usages.

Finally, the bill states that when land with an existing agricultural lease is purchased by a state entity, the state must allow such lease to remain in effect until expiration of the lease.  Reasonable efforts must be made to continue the land in agricultural production.            

This will become effective on July 1, 2004.

HB 1857 Energy Office Transfer (Waters) – This bill transfers the Florida Energy Office, via a Type II transfer, along with the Clean Fuel Florida Advisory Board from the Department of Community Affairs (DCA) to DEP.  The bill makes no provision for funding and the trust fund that previously funded the Energy Office programs will stay at DCA.  However, the DEP’s Grants and Donations Trust Fund has been tapped to receive the revenues that previously went into the DCA trust fund for the Energy Office.

This bill is expected to become effective on July 1, 2004.

CS/CS/SB 2188 Land Development (Finance and Taxation Committee) - This legislation contains a variety of issues related to property and development of property.  For example, the bill declares a shortage of affordable rental housing in urban areas a threat to the health, safety, and welfare of residents and declares that accessory dwelling units serve an important public purpose.  “Accessory dwelling units” are defined, and local governments are authorized to enact ordinances allowing accessory dwelling units in areas zoned for single-family residential use.  An affidavit must accompany an application for a building permit for an accessory dwelling unit that attests that the unit will be rented at an affordable rate to a very-low income, low-income, or moderate-income person.  The bill provides that accessory dwelling units can be used to satisfy the affordable housing component of local comprehensive plans.  DCA is required to evaluate the effectiveness of using accessory dwelling units to address affordable housing shortages and to submit a report to the Legislature by January 1, 2007.

The bill encourages counties to designate rural land stewardship areas as overlays on future land use maps.  The bill expands upon state assistance to local governments to include assistance necessary to prepare a rural land stewardship area.  The bill provides for notice of intent to designate a rural land stewardship area, reduces the minimum area and eliminates the maximum area required for a rural stewardship area.   The conditions associated with the transfer of rural land use credits are modified.  The incentives that are available to encourage landowners to enter into rural land stewardship agreements are expanded to include option agreements for sale to public entities or private land conservation entities.

The proposed law also provides legislative findings regarding the benefits of mixed-use, high-density development to accomplish urban infill and redevelopment.  The bill provides legislative findings regarding the transfers of development rights as a useful tool to accomplish certain policy goals, including preservation of historic buildings and creation of public open spaces in urban areas.  DCA is required to provide technical assistance to local governments regarding the promotion of transfer of development rights within urban areas for high-density infill and redevelopment projects and the encouragement of mixed-use, high-density urban infill and redevelopment projects.

Finally, the bill requires local governments to address, in their comprehensive plans, the water supply resources necessary to meet and achieve existing and projected water use demand for the planning period.  The deadline by which local governments must consider a water supply plan in various elements of the local comprehensive plan is delayed until December 1, 2006.  The bill also requires the updating of local government work plans for building water supply facilities every five years within 12 months of adoption of a regional water supply plan.

This bill became effective on July 1, 2004.

CS/SB 2736 Taking of Fish and Shellfish (Lawson) - This bill increases – from $100 to $125 – the annual fee for a crawfish trap number for persons taking or attempting to take crawfish with a trap in commercial quantities or for commercial purposes.  The $25 increase must be used to pay for the recovery of lost or abandoned crawfish traps.  This bill clarifies that persons who take or attempt to take crawfish in commercial quantities or for commercial purposes by any method other than with a trap must pay a $100 fee annually.  Additionally, for each person holding a crawfish stamp number, the bill provides an exemption from the $10 per trap retrieval fee assessed against trap owners so that the first 5 traps retrieved are free.

This bill became effective on July 1, 2004.

CS/CS/SB 2804 Greenways & Trails (Dockery) - This bill would have renamed Chapter 260, Florida Statutes, as the “Florida Greenways and Trails Act,” and made numerous changes to encourage public/private partnerships that benefit trails.  It would have established the legislature’s intent to recognize the Florida National Scenic Trail as Florida’s official state trail, revised term limits and duties of members of the Florida Greenways and Trails Council, created the “Conserve by Bicycling Program” with the Department of Transportation, and provide for the payment of the “Florida-Mining Recreation, Inc,” a non-profit group that creates trails on mined lands.

This bill was vetoed by the Governor on May 25, 2004.

CS/CS/SB 2820 - Fish and Wildlife Conservation Commission Reorganization (Argenziano) - This legislation is the culmination of a two-year organizational restructuring effort brought about by the 1999 merger of the Marine Fisheries Commission and the Florida Game and Fresh Water Fish Commission.  The bill produces numerous name changes and realigns divisions and responsibilities within those divisions, as well as authorizes the quarterly publication of a Florida Wildlife Magazine beginning January 1, 2005.  An advisory council is created (the Florida Wildlife Magazine Council) to assist the Commission in the development, publication, and sale of the magazine.  The primary focus of Florida Wildlife Magazine will be the promotion of hunting and fishing in Florida, and the magazine will also provide information regarding other outdoor recreational opportunities available to Floridians and out-of-state tourists.  The Legislature appropriated of $390,000 from the State Game Trust Fund for the operating and publication costs of the magazine and for the travel costs and per diem for the Council’s members.

An allocation of federal fishing funds is prescribed between freshwater and saltwater research and management, based upon the number of freshwater and saltwater fishing licenses sold in the state.  The bill assigns the Boating and Waterways Section to the Division of Law Enforcement.  The bill also repeals various provisions relating to employee bond requirements, noncultured shellfish harvesting, spearfishing, the purchase of sponges, the Commission’s seal, and the Wildlife Enforcement Program.

This bill became effective on July 1, 2004.

SB 2832 Water Management District Reports (Atwater) - This bill creates a pilot project within the South Florida Water Management District requiring that the district submit to the Governor and Legislature by February 15, 2005, newly formatted information currently required to be included in various annual reports and plans.  The intent of the bill is to coordinate and consolidate many of the reports and plans submitted by the water management districts.  This pilot project does not modify the requirements of Sections 373.501 and 373.536(5) and (6)(a)1.-2., F.S., and it expressly sunsets as of March 1, 2005.  The South Florida Water Management District is required to make suggestions and recommendations on any statutory changes needed to better coordinate and consolidate its reporting obligations, and these suggestions and recommendations must include any recommendations received from the other water management districts and the DEP.

This bill became effective on May 12, 2004. (Chapter 2004-53, L.O.F.)
 

BILLS THAT DID NOT PASS

Transmission Line Sitting Act CS/HB 689 (Littlefield) / CS/CS/SB 1982 (Posey) – These bills made revisions to the Transmission Line Sitting Act in reaction to changes made by the Federal Energy Regulatory Commission relating to “Regional Transmission Organizations,” “Independent System Operators,” and their counterparts.  The bills also made numerous technical changes aimed at expediting the permitting process; such as creating parallel reviews and allowing DEP to create permit specific public hearings through rule.  There was also a proposed permit fee increase to pay for increased reviewed by state agencies and the regional planning councils. 

Air Emissions Reduction HB 1631 (Dean) / SB 2798 (Argenziano) – These bills provided two mechanisms to achieve significant air emission reductions from electric utilities.  HB 1631 allowed electric utilities to petition the Public Service Commission (PSC) for cost recovery on voluntary agreement with DEP that result in air pollution reductions.  SB 2798 mandated significant reductions in nitrogen oxide, sulfur dioxide and particulate matter at specific electric plants.  The bills would have allowed the affected utilities to recover these costs through a five-to-seven-year rate freeze.  The bills provided for oversight of the electric rate structure by the PSC in order to protect the public interest.

Alternative Energy Bills (SB 112, SB 1316, SB 1492, HB 1521, HB 1551) – These bills all addressed the advancement of alternative energy in Florida.  The discussion on alternative energy this year was focused on two main issues:  waste-to-energy plants and attracting alternative energy businesses to Florida.   

Eric Olsen is the Chair of the Environmental Land Use Law Section Legislative Committee.  Mr. Olsen is a shareholder with Hopping Green & Sams, P.A., in Tallahassee.  He practices in the areas of wetlands regulation, Environmental Resource Permitting, consumptive use and water use permitting, and water supply.  He also lobbies in these areas.  Mr. Olsen received his BA from Clemson University in 1986, and his JD, with honors, from the University of Florida College of Law in 1989.  He was formerly a senior attorney with the St. Johns River Water Management District.

Angela Dempsey is a Senior Assistant General Counsel at the Florida Department of Environmental Protection.  Ms. Dempsey specializes in civil litigation enforcing the Resource Conservation and Recovery Act and other waste and water statutes. She received her J.D., with honors, from the University of Florida College of Law in 1993 and her B.S. from San Diego State University in 1990.  Ms. Dempsey previously practiced as an assistant state attorney in Orlando.