ELULS.orgThe Environmental and Land Use Law Section of The Florida Bar
Section Reporter

March 2007

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ELULS.org  2007 Legislative Session Summary
  Eric T. Olsen & Jennifer Fitzwater

      

The 2007 Legislature focused primarily on taxation and fiscal issues. The main issue of the session was how to address rising property taxes. Not surprisingly, the House and Senate’s proposals on the property tax question differed and, by the end of the regular session they were unable to resolve these differences leaving the issue to be addressed in a special session scheduled to begin June 12, 2007. Budgetary issues were not as easy as in the past. Unlike 2005 and 2006, the 2007 Legislature was not flush with tax revenues. For the first time in a number of years, the funds available for highway construction and other state programs were constrained and less than the prior year’s funds.

There was new leadership for the 2007 session. The election of Governor Charlie Crist presented the Legislature with its first new governor in eight years. In addition, Senator Ken Pruitt assumed the role as President of the Senate and Representative Marco Rubio became the Speaker of the House.

The Legislature finished its deliberations on May 4th at 4:12 p.m. avoiding the usual late into the night, last minute passage of legislation. The final legislative tally was: 2,538 bills introduced and 345 passed for a near all-time low. Continued funding of the Everglades and Lake Okechobee Restoration Projects and growth management were the main environmental and land use focuses in the 2007 session. The following is a summary of the significant environmental and land use related bills that passed in the 2007 Legislative Session.

CS/CS/HB 197 – Relating to Surface Water Protection Programs
This bill applies the variance provisions of Section 403.201, Florida Statutes, to Environmental Resource Permits issued in Northwest Florida. It continues an exception to state water quality standards inside stormwater management systems for the Northwest Florida Environmental Resource Permit program. The bill clarifies that the Department of Environmental Protection or the South Florida Water Management District may adopt basin-specific criteria to protect water resources in the Lake Okeechobee basin. The bill streamlines permitting of high-quality peat mining and the applicable mitigation requirements. It provides that the Suwannee River and Northwest Florida water management districts are not required to provide matching monies for the Surface Water Improvement and Management program. It increases the cumulative acreage that is used to define certain small mines, distinguishing them from the larger mines that must meet greater regulatory requirements. Effective date: July 1, 2007.

CS/CS/SB 392 – Relating to Everglades, Lake Okeechobee, St. Lucie River, and Caloosahatchee River Watersheds
This bill expands the authority for the issuance of Everglades restoration bonds to include the costs of the Lake Okeechobee Protection Plan and the newly created Caloosahatchee and St. Lucie River watershed protection plans. The bill places all of these plans under Section 373.4595, Florida Statues. It also expands the existing Lake Okeechobee Protection Program to include the “northern Everglades and estuaries” which takes in the Caloosahatchee River and St. Lucie River watersheds. The bill would apply all of the water quality protection and restoration measures to these newly added areas that are now being applied in the Lake Okeechobee basin. These measure focus on nutrient (phosphorus and nitrogen) reduction and include restrictions on wastewater residuals, animal waste and septage; the implementation of various best management practices; and overall adherence to the limitations established in the Total Maximum Daily Load determinations and Basin Management Action Plans. The legislation requires the Department of Environmental Protection to expedite their regulatory determinations for these programs and practices. The legislation also requires the development and implementation of specific watershed protection plans – by dates certain – for the St. Lucie and Caloosahatchee rivers. These plans generally parallel the requirements for the development and implementation of the Lake Okeechobee Protection Plan. The legislation also makes some modifications to the provisions relating to the Lake Okeechobee Protection Program, updating the requirements to reflect progress to date. Effective date: July 1, 2007.

HB 549 - Relating to Power Plants/Integrated Gasification
Integrated gasification combined cycle (IGCC) power plants convert coal into synthetic gas which is then burned in a standard combined cycle power plant to create electric power. House Bill 549 allows cost recovery for the siting, design, licensing and construction of IGCC power plants. The bill also requires IGCC power plants to undergo the same determination of need by the Public Service Commission as nuclear facilities. Finally, the bill exempts IGCC power plants from the Public Service Commission’s bid rule. Effective date: Upon becoming law.

CS/CSSB 668 - Relating to Surplus Lands
This bill directs the Department of Environmental Protection to surplus any lands if:
• the land was given to the state, or purchased for $1 consideration from a fair association incorporated under chapter 161, Florida Statues before 1955; and,
• the land is less than 3 acres in size.
Once the land has been surplused, the property will be offered to the fair association for no consideration. The Department of Environmental Protection must notice parcels of land that meet the criteria by by July 1, 2008. This provision of law would expire July 1, 2008. Effective date: July 1, 2007.

CS/HB 981- Relating to State Parks
This bill decriminalizes violations of the rules of the Division of Recreation and Parks. Currently, the violation of any rule authorized by Section 258.007 (2), Florida Statues, is a misdemeanor and punishable as a criminal activity. This bill also provides for certain listed crimes to remain as misdemeanors, but allows the majority of park rule violations to be punished as non-criminal infractions and the imposition of fines.

The bill also allows tenant farming and hunting to continue on the Babcock Ranch until a ranch management plan is completed provided that the Babcock Ranch Management meets the requirements of Section 259.1053(11)(d), Florida Statutes.

Finally, the bill allows members of the National Guard and their families to be admitted to state parks for half-price, and the use of golf carts and utility vehicles in state parks. Effective date: July 1, 2007.

CS/HB 1039 - Relating to Southwest Florida Water Management District
This bill revises the residence requirements for governing board members of the Southwest Florida Water Management District, and increases the total number of board members by two, to a total of 13. The bill:
• Adds an additional, permanent member for Polk County, raising the County’s total number of seats to two.
• Revises the qualifications for the “at large” seats to provide for one “at large” member from Hardee, DeSoto, and Highlands Counties; and one “at large” member from Sarasota and Charlotte Counties.
Effective date: Upon becoming law.

HB 1375 – Relating to Affordable Housing
This bill requires that a local comprehensive plan housing element must identify adequate sites for affordable workforce housing. By July 1, 2008, each county not designated as an area of critical state concern, and where the gap between the buying power of a family of four and the median home sales price exceeds $170,000, must adopt a plan to ensure affordable workforce housing. “Affordable workforce housing” is defined as housing affordable to persons or families whose household income does not exceed 140 percent of the area median income adjusted to household size. If a county does not adopt an affordable workforce housing plan, the county is not eligible to receive state housing assistance grants.

The bill also exempts certain affordable housing units in close proximity to employment centers from transportation concurrency. The bill authorizes a local government and a developer of affordable workforce housing to identify employment centers that are located within five miles of the nearest point of a development of regional impact (DRI). If at least half of the units are occupied by employees of an identified employment centers, then all the affordable workforce housing units are exempt from transportation concurrency requirements. The employment center must employ at least 25 or more full-time employees.

The bill extends all phase, buildout, and expiration dates for projects that are DRI’s and under construction on July 1, 2007, for three years. This extension is not a substantial deviation, not subject to further review, and must not be considered when determining if a subsequent extension is a substantial deviation requiring further DRI review. The bill exempts from substantial deviation review development changes that permit the sale of an affordable housing unit to a person who earns less than 120% of the area median income, if the developer actively markets the unit as such for at least six months.

The bill allows local governments that identify within a comprehensive plan the types of housing development and conditions (consistent with local housing incentive strategies required to participate in the State Housing Initiatives Partnership Program), for which it will consider plan amendment to expedite consideration of those plan amendments. The bill provides requirements to consider these amendments, and the local government is authorized to hold only one public hearing which is the plan amendment adoption hearing. The bill also creates an affordable housing tax deferral program by authorizing the local government to adopt an ordinance allowing for the deferral of ad valorem taxes and non-ad valorem assessments if the property owners are engaging in the operation, rehabilitation, or renovation of affordable rental housing property.

The bill makes several revisions and clarifications relating to the duties and responsibilities of the Florida Housing Finance Corporation (FHFC). Among other things, the bill provides that as a condition of financing an affordable housing multifamily rental project, the FHFC can require that an agreement be recorded in the public records mandating that the project be used for affordable housing for persons that meet specific income criteria. The FHFC is also authorized to forgive a share of a loan to a nonprofit organization if the loan is from funds set aside for sponsors of housing for the elderly to make building preservation, health or sanitation, life-safety, or security related repairs or improvements. Finally, the bill gives the FHFC rulemaking authority to create a loan application process for the Community Workforce Housing Innovation Pilot Program. Effective date: July 1, 2007.

CS/HB 1427 – Agritourism
This bill involves a variety of issues related to agriculture. It allows the Department of Agriculture and Consumer Services to provide advice and support relating to agritourism to the Florida Commission on Tourism and a variety of local government entities. The bill defines “agritourism activity” as an “activity carried out on a farm or ranch or in a forest that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historical, cultural, harvest-your-own, or nature based activities and attractions.” An activity is an agritourism activity regardless of whether the participant paid to participate in the activity.

The bill encourages farms to participate in agritourism and specifies that agritourism does not remove or limit the land’s agricultural tax assessment. The bill directs local governments and agricultural representatives to meet to discuss the benefits of agritourism to the local economy and provides opportunities for cooperation, conflict resolution, regulatory streamlining, and incentives.

The bill also contains provisions relating to the sale of horses and posting of no trespassing signs. Effective date: upon becoming law.

CS/SB 1472 – Relating to Beaches and Shore Preservation
This bill makes a series of changes in the state’s beach management program. Specific provisions:
• Expand the definition of “access” or “public access” to include established accessways that are to be retained for public use.
• Revises provisions for the issuance of dune restoration permits by the Department of Environmental Protection for projects that incorporate geotextile containers or similar structures. The bill also includes specific requirements governing the installation of these structures, including siting, engineering, legal and financial requirements as well as a provision for the removal of failed containers.
• Provides a method for valuing impacts to upland owners in conjunction with a beach restoration project.
• Directs the Department of Environmental Protection to develop a sand source inventory of offshore sand sources. County commissions in coastal counties must be notified when a renourishment project proposes to use adjacent sand sources outside of the region. Effective date: July 1, 2007.

CS/HB 1585 – Relating to City of Clearwater
This bill allows the City of Clearwater to authorize private uses for marina and docking facilities as long as the uses are consistent with other applicable rules and laws of the Board of Trustees of the Internal Improvement Trust Fund governing the management of sovereignty submerged lands. Any revenue generated as a result of the authorized private use must fund water-related activities for the benefit of the public. Currently, the City of Clearwater holds title to the submerged lands described in this bill that is subject to an existing deed restriction requiring that the lands be used for public purposes. In addition to the deed restriction, the contract between the City of Clearwater and the State includes a reverter clause that requires the land to revert to the Board of Trustees of the Internal Improvement Trust Fund if it is not used for public purposes. Effective date: Upon becoming law.

SB 1680 - Relating to Herbert Hoover Dike Improvements
SB 1680 is a memorial from the Florida Legislature to the U.S. Congress requesting that Congress authorize the U.S. Army Corps of Engineers to make urgently needed improvements to the Herbert Hoover Dike by 2014 into compliance with current levee standards. The bill also authorizes the funding necessary to expedite the improvements. The Herbert Hoover Dike surrounds Lake Okeechobee.

SB 1952 – Relating to Agriculture and Consumer Services Department
SB 1952 contains a number of provisions dealing with consumer protection such as private investigator licensing, liquefied petroleum gas handling requirements, restrictions on the use of the term “chamber of commerce,” regulation of brake fluid, and petroleum measuring devices. As it relates to environmental issues, the bill creates the Consumer Fertilizer Task Force within the Department of Agriculture and Consumer Services. The Task Force is charged with the following duties:
• Assessing existing data and information regarding nutrient enrichment in surface waters as a result of the use of fertilizer.
• Assessing management strategies for reducing water quality impacts associated with the use of fertilizer and identifying additional research needs.
• Developing statewide guidelines governing nonagricultural fertilizer use rates, formulations, and applications.
• Taking public input and testimony.
• Recommending methods to ensure local ordinances are based on best available data and science and achieve uniformity among local government ordinances where possible, unless local ordinance variations are necessary to meet mandated state and federal water quality standards.
• Developing model ordinances for municipalities and counties concerning the use of nonagricultural fertilizer.

The task force will consist of 13 members who are technically qualified by training, education, or experience, in water quality, horticultural, or agronomic science. Three members are appointed by the President of the Senate, one of whom shall be a representative from the Department of Environmental Protection, one of whom shall be a representative of the environmental community, and one of whom shall be a member of the Senate. Three members are appointed by the Speaker of the House, one of whom shall be a representative from a water management district, one of whom shall be a representative of the University of Florida's Institute for Food and Agricultural Sciences, and one of whom shall be a member of the House. Five members are appointed by the Commissioner of Agriculture, a representative from the Department of Agriculture and Consumer Services, a representative from the Office of Agricultural Water Policy, a representative from the national fertilizer industry, a representative from the Florida-based fertilizer industry, and a registered landscape architect. One member is appointed by the Florida League of Cities, Inc., and one member is appointed by the Florida Association of Counties.

The task force, which must issue a report to the Speaker of the House and Senate President by January 15, 2008, is abolished after issuing the report. Effective date: July 1, 2007.

CS/CS/SB 2052 – Relating to Environmental Protection, Litter Law, Keep Florida Beautiful, Adopt-a-Shore Program, Wildflower License Plates, Solid Waste Management, and Waste Tires
This bill implements the recommendations of the Senate Environmental Preservation and Conservation Committee’s interim report number 2006-121, entitled Review of the Solid Waste Management Act. The bill makes a number of technical amendments which correct cross-references, deletes certain obsolete provisions and dates from the solid waste management statutes, and addresses other issues which have arisen since the last major rewrite of the Solid Waste Management Act. Effective date: July 1, 2007.

CS/CS/SB 2346 -  Relating to Myakka River
The bill requires the Myakka River Management Coordinating Council to report to the Legislature and Governor on the management of the Myakka River by January 1, 2008. The report must contain recommendations on the potential expansion of the Florida Wild and Scenic River designation to the entire Myakka River. Effective date: July 1, 2007.

SB 2770 – Relating to Comprehensive Everglades Restoration Plan
SB 2770 is a memorial from the Florida Legislature to the U.S. Congress urging Congress to fully authorize funding for the Comprehensive Everglades Restoration Plan (CERP) as approved in the Water Resources Development Act of 2000. In support, SB 2770 states that the Everglades is one of the most unique and fragile ecosystems in the world which is recognized as imperiled and must be restored. SB 2770 notes that since 2000, the Florida Legislature and the South Florida Water Management District have appropriated more than $2 billion to implement CERP, which accounts for more than 90% of the total funding. The memorial also notes that the Federal Water Resource Development Act of 2000 approved CERP as a full and equal partnership between the State of Florida and the Federal government. The memorial notes that the Indian River Lagoon, Picayne Strand, and ten conditionally approved projects also require funding authorization from Congress.

CS/HB 7123 – Relating to Energy
This bill builds upon last year’s energy bill. Specifically, the bill:
• Creates the 12 member Energy Policy Governance Task Force;
• Revises the provisions for the renewable energy source exemption;
• Revises the definition of ethanol and increases the cap on sales tax exemptions for materials used in distribution of biodiesel and ethanol;
• Allows for the transfer of the renewable energy production tax credit and allows a producer to make a sale to themselves in order to meet the requirements for obtaining the tax credit;
• Requires all state-owned buildings to meet certain energy efficiency standards and requires an inventory of suitable state-owned buildings to be compiled and an energy efficiency project schedule to be developed. Requires all county, municipal, and public community college buildings to meet nationally-recognized, green building standards;
• Makes changes to the Renewable Energy Technologies and Energy Efficiency Act.
• Authorizes the Department of Environmental Protection to develop greenhouse gas inventories;
• Updates several provisions of the Power Plant Siting Act and the Transmission Line Siting Act;
• Clarifies provisions relating to the guaranteed energy performance savings contracting program which will encourage agencies to invest in energy conservation measures that minimize energy consumption and maximize energy savings. Requires the Chief Financial Officer to review proposed contracts;
• Establishes a Farm-to-Fuel Grants Program for bioenergy projects and the Biofuel Retail Sales Incentive Program under the Department of Agriculture and Consumer Services;
• Requires the Florida Building Commission to develop a model residential energy efficiency ordinance;
• Establishes standards for the purchase of biodiesel and ethanol for state fleet vehicles and school district transportation needs;
• Creates the Florida Energy, Aerospace, and Technology Fund program within the Executive Office of the Governor;
• Provides for the construction and operation of a cellulosic ethanol plant by the University of Florida that will be designed for research and to demonstrate and advance the commercialization of cellulose-to-ethanol technology;
• Requires the Public Service Commission to conduct studies on the implementation of a renewable portfolio standard and the creation of an energy efficiency and solar energy initiative;
• Requires the Department of Community Affairs to convene a working group to identify and review new or updated energy conservation standards for electricity consuming products; and,
• Creates the Green Schools Pilot Project. Effective date: July 1, 2007.

SB 7173 – Relating to Fish & Wildlife Conservation Commission
This bill clarifies the Fish and Wildlife Conservation Commission’s (FWCC) constitutional authority over marine life by specifying that this authority does not include any authority retained by the Legislature or vested in any other agency, other than the Marine Fisheries Commission, as of March 1, 1998. The bill also states that the FWCC’s constitutional authority does not extend to marine aquaculture retained by the Legislature or vested in any other agency as of July 1, 1999. The bill requires the FWCC to adopt adequate due process procedures by rule and to publish those rules in the Florida Administrative Code.

The bill authorizes the use of fees deposited in the Save the Manatee Trust Fund, the Florida Panther Research and Management Trust Fund and the State Game Trust fund to be used to promote or market manatee, Florida panther and largemouth bass specialty license plates. The bill provides for the use of certain fees, fines and penalties collected under the Marine Resources Conservation Trust Fund to fund the stone crap trap reduction program, the blue crab effort management program, the spiny lobster trap certificate program and the derelict trap retrieval program. The bill requires legislative approval for certain commission rules that establish equitable rent.

SB 7173 establishes the Blue Crab Effort Management Program which establishes funding fee schedules, administrative penalty limits, license suspension and revocation requirements and third-degree felony penalties. The bill authorizes the FWCC to waive temporarily the trap tag fees for stone crab, blue crab and spiny lobster fisheries in areas where massive trap losses occur due to a natural disaster when the area is declared by the governor to be a disaster emergency area.

This legislation provides for assessing administrative penalties and eliminates the suspension of endorsement provision, for first-time rule violations, in the stone crab and spiny lobster programs. It allows using trap retrieval fees to recover blue crab traps and black sea bas traps. The bill increases certain license and permit fees for residential and non-residential freshwater and saltwater fishing and hunting and creates a three-day non-residential freshwater fishing license. Effective date July 1, 2007, unless otherwise specified in the bill.

 



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.

Jennifer Fitzwater is the Director of the Office of Legislative and Governmental Affairs for the Florida Department of Environmental Protection where she oversees legislative affairs, the Florida State Clearinghouse, the department’s review of local government comprehensive plans, and review of offshore activities under the Outer Continental Shelf Lands Act, the National Environmental Policy Act, and the Coastal Zone Management Act.



 

 

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