The 2005 Legislative Session differed dramatically from the 2003 and 2004 sessions because the Legislature was flush with money from the booming real estate market, post-hurricane sales tax collections, and a good economy. In addition, the management styles of House Speaker Allan Bense (R) and Senate President Tom Lee (R) enabled the two chambers to work together much better than in recent past. In the environmental area, the Legislature and Governor’s office focused on growth management legislation aimed at funding infrastructure and ensuring infrastructure availability at the time of development. Sustainable water supply legislation complemented the land use provisions of growth management by funding alternative water supplies and providing incentives for water users to cooperate on developing alternative water supplies. The bills on these topics were the subject of great discussion, and did not pass until the final hours of the session. These bills were the first major modifications to growth management laws in 20 years, and were intended to ensure roads, schools, and water are available to meet the needs of growing communities. These bills provide $1.5 billon for a one time funding for infrastructure, with recurring funding of $750 million annually thereafter.

Wetlands regulation, total maximum daily loads (TMDLs), the Wekiva Parkway, greenways and trails, and the Coastal Zone Management Program were also the subjects of legislation. The following is a summary of the significant environmental related bills that passed in the 2005 Legislative Session.

CS/CS/HB 77 - Renewable Energy

This bill requires public utilities, municipal utilities, and rural electric cooperatives to continually offer purchase contracts to producers of renewable energy basing payment on the utility’s avoided cost. The Public Service Commission will oversee this process, which requires a minimum 10-year contract. The bill also removes the existing requirement that a county achieve the 30% waste reduction goal before the Department of Environmental Protection (DEP) can issue a construction permit or certification to build or expand a waste-to-energy facility in that county. This goal is one of the criteria DEP uses to evaluate local government applications for waste-to-energy facility construction or expansion. The bill, if signed by the Governor, would require that a county implement and maintain a solid waste management and recycling program that is designed to achieve the 30% waste reduction goal. This requirement would apply in all counties, including those with a population under 100,000.

If signed by the Governor, this bill takes effect October 1, 2005.

CS/CS/HB 155 - Lake Okeechobee Protection Program

This legislation updates the Lake Okeechobee Protection Plan while affirming the continuation of ongoing programs. The bill formally recognizes that successful implementation of the Lake Okeechobee Watershed Phosphorus Control Program depends on expeditious implementation of the Lake Okeechobee Protection Plan. The scope of the “Lake Okeechobee Watershed” is redefined as being those areas listed in the Lake Okeechobee Protection Plan dated January 1, 2004 (as opposed to the South Florida Water Management District SWIM Plan Update dated August 8, 1997). Several deadlines that had been imposed for the development of the Lake Okeechobee Protection Plan and other past projects have been deleted. However, these projects are still included in the bill as ongoing processes. Funding priorities are established by giving highest priority to those projects and programs that address phosphorus sources having the highest relative contribution to phosphorus loading and the greatest potential for phosphorus reduction. Other factors to be weighed in determining priority include the need for regulatory compliance, availability of federal matching funding, and public-private partnerships.

If it becomes law, this bill will take effect on July 1, 2005.

HB 331 - Inland Lakes and Canals Permitting Exemptions

The bill exempts counties, municipalities, or other governmental entities from Fish & Wildlife Conservation Commission permitting requirements for the placement of waterway markers on inland lakes and their associated canals. If an inland lake and its associated waterways is considered to be “navigable waters of the United States;” waters under the jurisdiction of the United States; or waters under the concurrent jurisdiction of the United States and the State of Florida; then federal waterway marker requirements will apply regardless of the exemption from the state permitting requirements created by the bill.

If this bill becomes law, it will take effect immediately.

CS/CS/SB 332 – Water Protection and Sustainability Trust Fund

This legislation creates the Water Protection and Sustainability Trust Fund to implement section 403.890, Florida Statutes, created in CS/CS/CS/SB 444.

If this bill becomes law, its provisions will take effect July 1, 2005.

CS/CS/CS SB 360 – Growth Management

This bill makes significant changes to the growth management laws. It requires concurrency for water supply, schools and transportation facilities. For water supply, the bill provides that adequate water supplies and potable water facilities must be in place and available to serve new development no later than a local government’s issuance of a certificate of occupancy. Prior to building permit approval, the local government must consult with the applicable water supplier to determine whether adequate water supplies will be available to serve the new development no later than issuance of the certificate of occupancy. Transportation facilities needed to serve new development must be in place or under construction within three years after the local government approves a building permit that results in additional traffic. For public schools, the bill states that a local government may not deny an application for site plan, final subdivision approval, or phase of development approval authorizing residential development because of the failure to achieve and maintain the level of service standard for public school capacities in a local school concurrency management system “where adequate school facilities will be in place or under actual construction within three years after the issuance of final subdivision or site plan approval.”

The bill ties the various concurrency requirements even further to a requirement that local governments annually enact “financially feasible” capital improvement elements. These capital improvement elements are subject to Department of Community Affairs compliance review and are also subject to challenge by affected parties.

The bill contains “proportionate share” provisions to ameliorate the new concurrency requirements. For schools, proportionate share payments allow school concurrency to be satisfied if the developer executes a legally binding commitment to provide mitigation proportionate to the demand for public schools to be created by the actual development of the property. The developer must enter into a binding development agreement with the local government agreeing to provide its proportionate share mitigation for the additional residential units approved by the local government in the development order.

For transportation facilities, the bill provides that a developer may choose to satisfy all transportation concurrency requirements by contributing its proportionate share if transportation facilities identified as mitigation for traffic impacts are (a) specifically identified for funding in the 5-year schedule of capital improvements in the capital improvement element of the local plan; (b) identified for funding in the long term concurrency management system; or (c) if contributions or payments for such facilities or segments are reflected in a five year schedule of a capital improvement plan in the next regularly scheduled update of the local capital improvement element.

SB 360 encourages designation of an urban service boundary (“USB”) for compact, contiguous urban development within a 10-year planning timeframe. With regard to USB’s, the legislation provides that new development outside the USB may not be prohibited, but local governments are encouraged to require a full-cost accounting analysis for any new development outside the USB and to consider the results of that analysis when adopting a plan amendment for property outside the USB.

SB 360 exempts from the development of regional impact (“DRI”) review process development within USB’s; rural land stewardship areas; and urban infill and redevelopment areas provided that the local government has entered into binding agreement with impacted neighboring jurisdictions and the Department of Transportation regarding the mitigation of impacts on state and regional transportation facilities, and further provided that the local government has adopted a proportionate share methodology.

SB 360 creates a 15-member Century Commission for Sustainable Florida. The bill also creates an 11 member task force to work its way through streamlining the process and procedures for establishing school concurrency, and a 15-member Florida Impact Fee Review Task Force. Local governments are also encouraged to develop “community visions.” The bill additionally establishes some incentive grant programs.

If approved it becomes law, this bill will take effect on July 1, 2005.

CS/CS/SB 444 - Alternative Water Supplies & Total Maximum Daily Loads

This legislation provides for numerous changes to Florida’s water resource development efforts including the use of $100 million -- allocated to the water management districts -- to fund alternative water supply development and $50 million, to the Department of Environmental Protection and Department of Agriculture and Consumer Services, for best management practices and capital costs to implement total maximum daily loads (“TMDLs”).

The bill establishes a goal applicable to each of the water management districts to provide a 100% match for each of these allocations, and requires that the districts’ budgets identify the amount needed to assist in implementing alternative water supply development projects. Applicants for funding assistance must provide a 60% match, but the water management district can waive this requirement for financially disadvantaged small local governments. The bill sets forth factors the water management districts must consider in awarding alternative water supply cooperative funding.

The legislation contains encouragements and mandates that are intended to facilitate the development of alternative water supply and regional water supply authority or multi-jurisdictional water supply entity approaches to alternative water supply development. For example, the use of alternative water supply projects identified in a regional water supply plan is presumed to be consistent with the public interest for purposes of consumptive use permitting and consumptive use permits authorizing the use of alternative water supplies will have a 20-year duration.

The bill rewrites the regional water supply planning statute, section 373.0361, F.S., to require that the water management districts identify water supply development project options instead of the current requirement of identifying water supply development sources. The water management district regional water supply plans must also identify the entities that will implement each alternative water supply project option, and the districts must notify those entities. Upon receiving this notice, those entities who have been identified by the district must report annually to the water management district on the status of that entity’s implementation of the identified alternative water supply projects or substitute alternative water supply projects.

The legislation provides that within 18 months after a water management district updates its regional water supply plan, local governments must incorporate the alternative water supply projects identified in the regional water supply plan into their comprehensive plan. The bill states that adequate water supplies must be in place and available to serve new development at the time of the issuance of the certificate of occupancy. To satisfy this requirement, SB 444 provides that the local government shall consult with the applicable water supplier to determine whether adequate water supplies to serve the new development will be available no later than the anticipated date of issuance of the certificate of occupancy.

The bill authorizes DEP to establish TMDLs that establish an initial allocation of pollutant loads among point and non-point sources provided that detailed allocations to specific point sources and specific categories of non-point sources are established in basin management action plans (BMAPs). The bill also authorizes DEP to establish phased TMDLs in cases where additional scientific precision and accuracy are needed. In those cases, DEP will refine the TMDL as additional data becomes available. The bill provides that TMDL allocations may be refined and implemented on a watershed basis through the BMAP process. Significantly, BMAPs integrate the appropriate strategies available to the state through existing water quality protection programs. BMAPs may provide for phased implementation of management strategies to promote timely, cost-effective actions, and shall explain how future pollutant loading will be addressed. BMAPs shall be adopted by order and subject to challenge under Chapter 120, Florida Statutes.

If this bill becomes law, it will take effect immediately.

CS/CS/HB 727 - Water Management District Planning and Reporting

At present, various statutes require each water management district to complete numerous annual reports and planning documents detailing the status of programs and water resources within their jurisdiction. This legislation requires that each year, each water management district will prepare a consolidated water management district report on the management of water resources within that district. The consolidated water management district report must be submitted to the DEP, the Governor, President of the Senate, and Speaker of the House, along with copies to the chairs of all legislative committees having substantive or fiscal jurisdiction over the water management districts, and copies to all county commissions having jurisdiction or deriving any funds for operations of the district.

The consolidated report must include:
 A district water management plan annual report or annual strategic plan.
 The DEP-approved minimum flows and levels annual priority list.
 The annual 5-year capital improvement plan.
 The alternative water supplies annual report.
 The final annual 5-year water resource development work program.
 The Florida Forever Water Management District Work Plan annual report.
 The mitigation donation annual report.


The South Florida Water Management District must also include the following items in its consolidated report:

 The Lake Okeechobee Protection Program annual progress report.
 The Everglades annual progress reports.
 The Everglades restoration annual report.
 The Everglades Forever Act annual implementation report.
 The Everglades Trust Fund annual expenditure report.

This legislation was approved by the Governor on May 10, 2005 (Chapter 2005-36, Laws of Florida). It becomes effective on July 1, 2005.

CS/CS/HB 759 - Environmental Resource Permitting

This legislation deals with a number of wetland regulatory issues. First, the bill directs DEP and the water management districts to develop a plan to accomplish consolidation of the state and federal wetland regulatory programs through the use of a state programmatic general permit (SPGP) or a series of regional general permits (RGPs) for construction activities impacting less than 10 acres of wetlands. Second, the bill extends the existing dredge and fill permitting program in the territory of the Northwest Florida Water Management District until 2010 which represents an additional five year postponement of the Environmental Resource Permitting (ERP) program. Third, the legislation also clarifies that activities within the boundary of a jurisdictional declaratory statement that was applied for on or before June 1, 1994, are exempt from the ERP program rules, and subject to the rules in existence before the ERP rules. Fourth, the bill establishes a wetland financial responsibility requirement for phosphate mines covering a rolling period of three years of impact. Finally, the DEP’s existing requirement to conduct a cumulative impact resource management plan for the Peace River Basin has been extended through January 31, 2007.

If it becomes law, this bill will take effect immediately.

SB 908 - Wekiva Parkway & Protection Act Amendments

This bill modifies DEP’s rulemaking authority to authorize the adoption of rules which will implement the specific recommendations for nitrogen reduction set forth in sections C.2 and C.4 of DEP’s report entitled "A Strategy for Water Quality Protection: Wastewater Treatment in the Wekiva Study Area,” dated December 2004, and which can be found at http://www.dep.state.fl.us/central/Home/Admin/WekivaReportDecember2004.pdf.
DEP rules must also provide an opportunity for relief from the report’s recommendations upon affirmative demonstration by a permittee or permit applicant that the existing discharge of treated wastewater protects surface water and groundwater quality with respect to nitrogen as set forth in section C.1 of the above report. Finally, the bill clarifies that for local governments located partially within the Wekiva Study Area, the requirement that each local government within the Area develop a master stormwater management plan and wastewater facility plan, applies only to that portion located within the Wekiva Study Area.

This bill takes effect upon becoming law. It was presented to the Governor on May 24, 2005.

HB 913 - Littering

This proposed law increases the penalty for a minor littering violation of section 403.413 (solid waste not exceeding 15 pounds in weight or 27 cubic feet in volume) from $50 to $100. The $50 increase in the litter fine will be deposited into the Solid Waste Management Trust Fund and used for the solid waste management grant program pursuant to s. 403.7095, F.S.

If approved by the Governor, these provisions take effect July 1, 2005.


CS/CS/HB 937 - Contamination Notification

This law creates section 376.30702, F.S. and requires notice of contamination under certain circumstances. The law requires that the person responsible for site rehabilitation (PRSR) notify the DEP’s Division of Waste Management within ten days of discovering that contamination exists in any medium beyond the boundaries of the property at which site rehabilitation was initiated pursuant to chapter 376, F.S. The notice is required when the PRSR or representative discovers from lab results that comply with chapter 62-160, F.A.C., that contamination, as defined in DEP rules, exists offsite. The actual notice shall be on a form adopted by DEP and mailed by certified mail, return receipt requested. The PRSR must simultaneously notify the appropriate DEP district office, county health department, and all known lessees and tenants of the source property. The DEP then has 30 days, either from receipt of actual notice or from September 1, 2005, if DEP already possesses information equivalent to that required by the Notice, to send copies of the notice to all recorded owners of any real property at which contamination has been discovered. If the property at which contamination has been discovered is the site of a school, the department must also send a copy of the notice to the chair of the district school board and direct the school board to provide actual notice to teachers and parents (or guardians) of students attending the school during the period of site rehabilitation.

The law provides rulemaking authority to DEP to implement section 376.30702, F.S., and develop the notice form mentioned above. The notice form must contain the location of the property, contact information for the PRSR, identifying information for all record property holders at properties where contamination has been discovered, detailed tables of sampling results and a vicinity map.

This bill was signed by the Governor on May 24, 2005 (Chapter No. 2005-50, Laws of Florida). It takes effect on September 1, 2005.

CS/CS/CS/HB 955 - Waterfront Property

This bill encourages public access to waterways, creating a program to implement the Waterfronts Florida Partnership Program within the Department of Community Affairs. This program’s mission will be providing technical assistance, support, training and financial assistance for the revitalization of waterfront areas throughout the state. The bill requires that DEP and the water management districts, as appropriate, adopt programs to expedite the processing of wetland resource and environmental resource permits for marina projects that reserve at least 10 percent of available boat slips for public use. The bill also directs DEP, in coordination with the Fish and Wildlife Conservation Commission, to study the use of all state parks for possible public access points for recreational boating. In addition, this bill amends Chapter 253, F.S., requiring the Board of Trustees of the Internal Improvement Trust Fund to encourage certain uses for sovereign submerged land and clarifies that the jurisdiction of some aquaculture practices. Lastly, the bill creates sections 197.303 through 197.3047, F.S. which provide tax incentives by allowing counties to adopt ordinances creating ad valorem tax deferrals for certain recreational and commercial working waterfront properties.

If it becomes law, this bill will become effective on January 1, 2006.

HB 989 - Natural Resources

This legislation contains provisions relating to the Fish and Wildlife Conservation Commission. The number of members of the Boating Advisory Council is increased and changed, and the terms of office are increased from two years to three years. The legislation also provides that a firm or corporation may only receive a saltwater products license if it is issued to a valid commercial vessel registration number and, that the license may not be transferred to another individual, firm or corporation. The bill repeals existing law relating to environmental education and the Advisory Council on Environmental Education.

The bill also directs the DEP to adopt by rule one or more general permits for local governments which would authorize the construction, operation and maintenance of public marina facilities, public mooring fields, public boat ramps, and associated parking facilities located in uplands. The general permits must include provisions which will ensure compliance with the Environmental Resource Permitting program criteria relating to general permits (section 373.118, F.S.) and provisions necessary to include the general permits in any state programmatic general permit issued by the US Army Corps of Engineers. Marinas and mooring fields authorized under any such general permit must not exceed an area of 50,000 square feet over wetland and other surface waters. Any facility authorized by such a general permit would be exempt from development of regional impact review if the facility complies with the comprehensive plan of the applicable local government. The facility must also be consistent with the local government manatee protection plan, and must obtain and maintain Clean Marina Program status before opening for operation and maintain that status. All facilities permitted under these general permits must be constructed, maintained and operated in perpetuity exclusively for the use of the general public.

If this bill becomes law, its provisions take effect on July 1, 2005. It was presented to the Governor on May 25, 2005.

CS/CS/HB 1031 - Reuse & Recycling/Campaign Signs

This proposed law authorizes DEP to design a pilot project to be implemented in 2006 which would encourage reuse or recycling of campaign signs. The bill authorizes DEP to, at a minimum, identify two large counties and two small counties in which to establish central depositories for used campaign signs and to make the signs available at no cost to schools and other entities that can reuse them, and to companies that can recycle them. As part of the pilot project, the DEP shall submit details of the program along with a budget request for funding from the Solid Waste Management Trust Fund prior to the start of the 2006 Regular Legislative Session.

If it becomes law, this bill will take effect on July 1, 2005.

CS/CS/HB 1141 - Amendments to Greenways & Trails Act

This bill, which renames Chapter 260, F.S., as the “Florida Greenways and Trails Act,” contains a host of changes intended to add clarity to existing law regarding greenways and trails. It amends statutory language related to the Florida National Scenic Trail, allowing multiple parcels to be considered as one Florida Forever project, and requires water management districts and the Florida Communities Trust to include the Florida National Scenic Trail in its program components. The bill amends the term limits applicable to members of the Florida Greenways and Trails Council and changes the duties of the council to reflect more accurately their activities. It establishes “The Conserve by Bicycle Program” within the Department of Transportation (DOT) and creates the Florida Circumnavigation Saltwater Paddling Trail as part of the Florida Greenways and Trails System. Lastly, the bill encourages Florida Mining-Recreation, Inc. to create plans and assist in the development of recreational opportunities on Florida’s mined lands.

This bill takes effect upon becoming law. It was presented to the Governor on May 20, 2005.

HB 1289 - Signing and Sealing by Professional Geologists

This proposed law provides that if a permit or license, or the performance of an activity regulated under Chapter 373, F.S., requires the services of a professional geologist (PG), DEP or the governing board of a water management district may require that a licensed geologist sign and seal any documents and reports submitted in connection with the permit application or regulated activity. The bill creates Section 373.1175, F.S., and requires that the cost of such signing and sealing by a PG shall be borne by the permit applicant or permittee.

If this bill becomes law, it will take effect July 1, 2005. It was presented to the Governor on May 25, 2005.

CS/SB 1318 - Underground Petroleum Storage Tanks

This bill addresses several different issues associated with the petroleum cleanup program. It directs DEP to encumber funds appropriated for petroleum remediation uniformly throughout the state fiscal year (July - June). It provides for a secondary level of prioritization for cleanup of sites within a particular scoring range. The bill authorizes limited source removal activities out of priority order for certain sites affected by DOT road construction projects or for sites upgrading petroleum storage system secondary containment. It extends the life of the Inland Protection Financing Corporation from 2011 to 2025 and authorizes the corporation to issue debt instruments to pay for large-scale cleanups such as ports, airports, and terminal facilities. The Governor and legislative leadership must pre-approve any debt issuance and the Legislature must specifically approve the clean-up project to be financed. Lastly, the bill provides that a contaminated site acquired prior to July 1, 1990, which ceased operating as a petroleum storage or retail business prior to January 1, 1985, is eligible for financial cleanup assistance.

If approved by the Governor, this bill takes effect on July 1, 2005.

CS/CS/HB 1395 - Beach Safety

This bill revises the current uniform beach warning and safety flag program which prohibits the display of flags not specifically defined by DEP. It opens the beach flags program to lifeguarded and non-lifeguarded beaches, and allows the program to use grant funds. To avoid confusion among beachgoers and lifeguards, the legislation deletes certain requirements in the current law that address the appearance of the flags and signs. The bill also revises the liability provisions of the statute to clarify that governmental entities participating in the program are not liable for injury or loss of life resulting from naturally occurring conditions, and authorizes the DEP to develop and distribute information and materials related to beach safety.

If signed, this bill takes effect July 1, 2005. It was presented to the Governor on May 25, 2005.

HB 1855 - Relating to Natural Resources

This bill addresses a variety of issues including: the creation of the Florida Oceans and Coastal Resources Management Act (sections 161.70-76, F.S.); amendment of section 376.121, F.S., to allow the use of federal natural resource damage assessment methodology; providing a Development of Regional Impact (DRI) exemption for heavy mineral mines; and amending the Florida Coastal Zone Management program to reflect suggestions made by the Department of Commerce and to increase program efficiency.

More specifically, this bill creates the Florida Oceans and Coastal Resources Council (“Council”) within DEP. The Council is comprised of 18 members and three ex-officio members. The bill requires the Council to: encourage joint research and funding to preserve coastal and ocean resources; compile a library of ocean and coastal research and prepare a comprehensive oceans and coastal resource assessment; and publish an annual Florida Oceans and Coastal Scientific Research Plan.

The legislation also amends section 376.121, F.S., by adding language which would allow DEP to calculate natural resources damages in ways other than the using the compensation schedule set up in 376.121(4) – (6) and (9), F.S., such as in accordance with the Oil Pollution Act of 1990. This would allow DEP to enter into cooperative damage assessments with the two federal agency trustees – the U.S. National Oceanic and Atmospheric Administration and U.S. Department of the Interior.

Amendments to the Coastal Zone Management program add specificity and additional qualifications to the list of federal licenses and permits that the state can review for consistency with state laws, including the Federal Power Act, the OCS Land Act and several federal mining laws. The provision allowing broad review of pipeline rights-of-way for oil and gas has been deleted. The legislation also provides that for those projects that require certain environmental analyses under the National Environmental Policy Act (NEPA), those documents are necessary data and information for the state’s consistency review of federal activities.

The bill revises the factors used to determine a substantial deviation to a DRIs for mining operations. An increase in the size of a heavy mineral mine, as defined in s. 378.403(7), F.S., will only constitute a substantial deviation to the DRI if the average annual acreage that is to be mined is more than 500 acres and consumes more than 3 million gallons of water per day.

This bill takes effect upon becoming law. It was presented to the Governor on May 25, 2005.

CS/CS/SB 2502- Water Management District Administration

This legislation authorizes each water management district to implement a small business program designed to help small businesses, including those owned by women and minorities, to participate in district procurement and contract activities. Program specifics must be adopted by rule. The bill also provides for the continuation of water management district governing board member service beyond that member’s four year term until a successor is appointed, but not more than 180 days. The legislation makes a technical correction to existing Environmental Resource Permitting program’s grandfathering language to clarify that activities are grandfathered if they are the subject of declaratory statement petitions filed on or before June 1, 1994. Finally, the bill states that for any water management district regional water supply plan scheduled to be updated before December 31, 2005, the deadline for such update is extended by one year.

If this bill becomes law, it will take effect immediately.


Eric T. 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 C. Dempsey is a member of the Environmental & Land Use Law Section Legislative Committee. She 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.