INTRODUCTION The major issues of the 1998 legislative session were tort reform, education spending, and children's programs. No new environmental programs were created and few changes were made to existing environmental regulations. The major environmental/growth management initiatives of the 1998 session all involved economics. For example, the growth management package of the Department of Community Affairs was made a part of the school concurrency legislation which is naturally driven by economics. This theme of economics can be found in the Everglades restudy legislation; the environmental mitigation legislation for the Department of Transportation which included a per ton fee on rock mining activities in the East Everglades; direction regarding condemnation of lands in the Kissimmee River Basin; a prohibition against the use of federal condemnation procedures; and forgiveness for the Department of Environmental Protection relative to loans which that department received for hydrilo removal and the start-up of the NPDES program. The economic theme is also at the heart of the Legislature's inability to enact a revised land acquisition program. In a year with a $46 billion budget, a line-item veto of over $96 million worth of member projects and a $50 tax rebate coupled with tax free shopping days, it is not surprising that economics pervaded the environmental and land use areas. The brownfields and drycleaning legislation contain loans, redevelopment incentives, and numerous economically driven revisions to the programs' eligibility. The overall Everglades issues, reflected in HBs 4141 and 4071, focus on restoration costs. The Legislature wants to be a participant in those decisions, and they expressed a concern that the land owners involved in this massive public works project receive a fair market value for their property. Probably the most representative piece of environmental legislation that sums up this Legislature's emphasis on financial issues was the $12 million expansion of the tax exemption for pollution control equipment. The Republican controlled 1998 Legislature proved itself to be bottom-line oriented. However, no measures were passed that would lower the bar or turn back the clock on environmental protection. Following is a summary of the more significant environmental/land use bills that passed this Session. The bills are listed in numeric order under each general category.
I. ENVIRONMENTAL/REGULATORY Drycleaning Contamination Remediation Program CS/SB 244 enacts several changes to the 1994 law which established the drycleaning contamination remediation program. This bill impacts present and former owners and operators of drycleaning facilities or wholesale supply facilities at which there is drycleaning solvent contamination, as well as nearby landowners. CS/SB 244 provides tax credits of up to 35% of the cost of integral voluntary cleanup activities for drycleaning solvent contaminated sites and brownfield sites. Single-site voluntary cleanups may not receive more than $250,000 per year in tax credits. Total tax credits authorized in a single year are limited to $2,000,000. These tax credits may be transferred after a merger or acquisition to the surviving or acquiring entity and used in the same manner with the same limitations. DEP will determine whether a drycleaning facility or wholesale supply facility is eligible for the remediation program. Facilities operated in a grossly negligent manner will be ineligible for the program. The deadline for applying for eligibility for the program is changed from December 31, 2005 to December 31, 1998. In an effort to encourage complete remediation of contaminated sites, a taxpayer voluntarily cleaning up a contaminated site may claim an additional 10% of the total cleanup cost (up to $50,000) in the final year of the site cleanup, as demonstrated by the issuance of a DEP "No Further Action" order for that site. The bill provides that a person who conducts voluntary site rehabilitation shall be not compelled to perform a site cleanup under some circumstances. This immunity shall continue to apply to any real property owner who transfers, conveys or leases the property, so long as the voluntary cleanup activities continue. Also, if an owner's property becomes contaminated by the operation of a nearby drycleaning or wholesale supply facility due to geophysical or hydrologic forces, they are exempt from liability under certain circumstances. Finally, DEP is directed to adopt rules to prescribe the tasks that comprise a site rehabilitation program and the level at which a rehabilitation program task and a site rehabilitation program may be deemed complete, as well as rules incorporating risk-based corrective action principles to protect human health and safety and the environment in a cost-effective manner. DEP may also adopt rules to provide guidelines and procedures to facilitate tax credit claims for voluntary cleanup activities. These rules must include protocols for the use of natural attenuation and the issuance of "No Further Action" letters.
Accidental Release Prevention CS/SB 812 creates the Accidental Release Prevention and Risk Management Planning Program and authorizes the Department of Community Affairs (DCA) to seek delegation from the U.S. Environmental Protection Agency (EPA) for the Accidental Release Prevention Program established under Section 112(r) of the federal Clean Air Act. The bill defines those facilities which may be regulated under this new program, and creates an exemption for sources subject to Chapter 527, F.S., whose only regulated substance subject to the program is liquified petroleum gas. Those stationary sources exempted from DCA's authority will be subject to the Accidental Release Prevention Program administered by EPA. DCA is granted rulemaking authority and is required to establish an outreach program. Other local and state agencies which are affected by this program are directed to enter into a Memorandum of Understanding with DCA. The bill provides the DCA with enforcement authority and penalties for violations and also authorizes the DCA to establish program fees for affected stationary sources. The fee schedule establishes the following maximum annual registration fees: Program 1 stationary sources - $100, with a multi-source exemption for facilities under common ownership and which are subject to regulation based on the same single chemical process; Program 2 stationary sources - $200, also with a multi-source discount, and a separate fee maximum of $100 for agriculture Standard Industrial Classification group numbers 01, 02, or 07; and Program 3 stationary sources - $1,000. A late fee may be assessed for failure to timely submit a registration fee. DCA is required to periodically audit risk management plans submitted by owners and operators subject to the program to ascertain and ensure compliance with the program. DCA is also required to develop an annual audit work plan which identifies stationary sources for audits. A "soft sun-down" provision requires the Legislature to review the implementation and effectiveness of the program during the 2000 legislative session and enact any legislation necessary to implement suggested changes.
Environmental Equity and Justice In a continuing effort to address perceived inequities in the application of environmental laws/regulations and the impacts of pollution, the Legislature created the Center for Environmental Equity and Justice (CEEJ) to be housed at the Florida Agricultural and Mechanical University (FAMU) Environmental Sciences Institute. The Center shall conduct and facilitate research, develop policies, and engage in education, training, and community outreach with respect to environmental equity and justice issues. The bill also creates the Community Environmental Health Program (CEHP) and Community Environmental Health Advisory Board to identify community environmental health needs and types of health services beyond those presently provided to address health effects associated with exposure to environmental contamination. The recommendations of the CEEJ and CEHP should assist state policymakers in developing sound and workable environmental equity and justice policies.
Ash Residue Reuse and Recycling SB 1058 authorizes DEP to approve the recycling or reuse of ash residue generated by a solid waste management facility where an applicant can demonstrate that no significant threat to public health will result and that applicable DEP standards and criteria will not be violated. The bill also authorizes DEP to adopt rules, if necessary, for administering these provisions. DEP is not required, however, to amend its existing rules concerning ash residue reuse and recycling.
Analytical Quality Assurance SB 1334 provides authority for existing DEP rules which contain quality assurance requirements for environmental data that is submitted to DEP. Public or private parties, such as environmental laboratories or sampling firms, collect data samples for various DEP activities. The environmental data must meet qualitative and quantitative requirements to be acceptable for use in a specific program. The rule requirements pertain to the quality of data in terms of precision, accuracy, completeness, representativeness and comparability, as well as non-measurable qualifiers such as legally defensible data.
Asbestos Fees Another rule authority bill, SB 1336 authorizes DEP's asbestos fee rule found at Chapter 62-257, F.A.C. That rule provides notification and associated fee requirements for DEP's asbestos removal regulatory program as prescribed by the U.S. Environmental Protection Agency's National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos.
Motor Vehicle Inspection Program The Department of Highway Safety and Motor Vehicles (DHSMV) must hire an independent expert consultant to develop appropriate Request-For-Proposal (RFP) specifications to study the effectiveness of the current MVIP and also the impending federal ozone standards. The consultant must submit its report by January 1, 1999, and shall consider both annual and biennial testing; exempting the three most recent model years of cars from testing; and basic testing for hydrocarbon and carbon monoxide emissions, and other mobile source testing for nitrous oxides. $125,000 is appropriated to fund this study. The DHSMV is prohibited from extending the current contracts or from entering into new contracts absent specific legislative authorization to do so. However, if the Legislature does not pass MVIP legislation during the 1999 session, then the DHSMV may enter into contracts for a biennial inspection program using the basic test which exempts the most recent 4 model years of cars from testing. Any such contracts cannot exceed 2 years in duration.
Telecommunications Rights-of-Way Local governments have increasingly required payment of fees and in-kind contributions from telecommunications companies in order to permit them to place their lines within public rights-of-way. CS/CS/SB 1704 should reduce the fees paid by telecommunications companies for the location of lines within public road rights-of-way. In this regard, fees charged by local governments to telecommunications companies for the use of public rights-of-way cannot exceed 1% of the company's gross revenues generated within that local government's corporate boundaries. Importantly, any "in-kind" contributions required by the local government are applied to that 1% fee. The bill provides that the local government may charge a minimum of $500 per linear mile for a telecommunications service to occupy a public right-of-way. Any charge in excess of $500 per linear mile must be based on the direct cost of using the right-of-way and a reasonable cost for administering the municipal regulation. Two grandfathering provisions are also included in the bill. One allows telecommunications companies that are lawfully occupying a municipal right-of-way to continue that use without receiving additional approvals. The municipality may, however, impose fees and adopt rules and regulations governing the use of the right-of-way by these grandfathered facilities. Existing ordinances and agreements which require "in-kind" contributions from telecommunications companies are also specifically grandfathered. Finally, the bill clarifies that a local government may not exert any control over telecommunications companies regarding matters which are within the jurisdiction of the Public Service Commission or the Federal Communications Commission. Local governments may need to enact ordinances or regulations to comply with the provisions of the bill.
Department of Health CS/SB 1716 provides authority for, or incorporates into statute, existing Department of Health (DOH) rules which relate to:
Sewage Treatment Loans/Solid Waste Disposal This bill provides additional legislative authority to perpetuate the revolving loan program for local government sewage treatment facilities. It also clarifies an "on-site disposal" solid waste permit exemption and amends financial assurance requirements applicable to privately-owned solid waste management facilities. DEP is granted authorization to administer the existing Sewage Treatment Revolving Loan Fund so as to maximize proceeds available to local government agencies for planning, designing, and constructing sewage treatment facilities. The legislation clarifies the solid waste permit exemption for persons disposing of solid waste resulting from their own activities on their own property to include "ordinary household waste." It further clarifies that other materials which could create a public nuisance or adversely affect the environment or public health (e.g., batteries, solvents, hazardous substances, etc.) are not covered under the permit exemption. Where both DEP and a local government independently require financial assurance for closure of a privately-owned solid waste management facility, the bill requires increased inter-agency coordination to ensure that duplicative financial requirements are not imposed on the owner or operator. The bill facilitates use of a single financial mechanism to cover the required costs. DEP is expected to incorporate the solid waste disposal permit and financial assurance revisions into Chapter 62-701, F.A.C.
Pollution Control Equipment Tax Exemption Acting on the economic theme of the 1998 session, the legislature enacted a sales tax exemption for any facility, device, fixture, equipment or machinery used primarily for the control or abatement of pollution or contaminants in manufacturing, processing, compounding, or producing for sale items of tangible personal property at a fixed location. To qualify, such facility, device, fixture, equipment or structure must be installed or constructed to meet a law implemented by, or a permit condition of, DEP. The bill also specifically creates a sales tax exemption for equipment, machinery or materials required to meet any law implemented by, or permit condition of, DEP that are purchased for the monitoring, prevention, abatement, or control of pollution or contaminants at privately owned or operated landfills or construction and demolition debris disposal facilities.
Boating Safety CS/CS/HB 3265 conforms the penalty provisions for "boating under the influence" to the penalties imposed under Florida law for driving under the influence. Specifically, this bill reinstates the $500 civil penalty, which had been inadvertently repealed in 1996, for boaters who refuse to submit to any lawful breath, blood or urine test for alcohol or chemical substances. The operation of vessels by persons under the age of 21 who have a breath-alcohol level of 0.02% or higher is prohibited. Penalties for a violation include a minimum of 50 hours of public service, suspension of the vessel operating privilege until such service is performed, and the successful completion of a boating safety course. The bill also increases from 1 to 2 the number of noncriminal infractions that must be committed within a 12-month period before mandatory boating education will be required.
Hazardous Waste Facility Siting Initially drafted to target a specific facility in Duval County, this legislation has statewide effect by restricting the location of facilities which specifically "manage" (i.e., treat, store, dispose of, or transfer) hazardous waste that is not generated at the regulated facility. The bill also applies to all federal facilities that manage hazardous waste. DEP is prohibited from issuing a permit for the construction, initial operation, or substantial modification of hazardous waste management facilities at certain locations. Those locations include areas where life-threatening concentrations of hazardous substances could accumulate under certain specified circumstances; within 1,500 yards of hospitals, schools, or similar identified sites; and within 1,000 yards of any residence. The key phrases "substantial modification," "initial operation," and "life-threatening concentrations of hazardous substances" are defined. The permit and siting prohibitions do not apply to permitted hazardous waste manufacturers, power generators, or other industrial operations where hazardous wastes were generated on-site or from other sites owned or acquired by the permittee. Similarly, the bill does not apply to the operation of existing hazardous waste transfer facilities which are not relocated or which do not undergo a substantial modification to the facility's structure or operation. DEP, charged with administering the state's hazardous waste regulatory program, must develop amendments to Chapter 62-730, F.A.C., to implement the facility location restrictions and permit requirements specified in CS/HB 3701.
Local Sources First CS/SBs 312 & 2298 addresses the allocation of water resources throughout Florida and imposes a "local sources first" directive. Under this directive, DEP and the water management districts are directed to encourage the use of water from sources nearest the area of use or application whenever practicable. Such sources include all naturally occurring water sources and all alternative water sources including, but not limited to, desalination, conservation, reuse of non-potable reclaimed water and stormwater, and aquifer storage and recovery. The "local sources first" directive does not apply to the transport and use of water within the Central and Southern Florida Flood Control Project nor to the transport and use of water for bottled water. The transport and use of reclaimed water for electrical power production by an electric utility is also exempt from the "local sources first" directive. The bill specifies the factors to be considered when evaluating whether a potential transport and use of ground or surface water across county boundaries is consistent with the public interest. The reuse of potable reclaimed water and stormwater are not subject to this evaluation. Where district-wide water supply assessments and regional water supply plans have been prepared, they will be used as the basis for consideration of the public interest factors. Applicants must include information pertaining to the specified public interest factors in permit applications for the transport and use of water. Regional water supply authorities that exist under a voluntary interlocal agreement and receive or maintain consumptive use permits under that agreement are exempt from the public interest factors and the additional permit application information requirements. This exemption only applies to water sources within the jurisdictional areas of the interlocal agreements.
Stormwater Runoff This bill authorizes the Department of Transportation (DOT) to regulate storm water runoff on the state's right-of-ways resulting from man-made changes to adjacent properties. Language is added which clarifies that property owners, who are issued DOT permits, are not exempt from applicable federal, state, local or regional regulations governing pollution control, water quality, surface water management or land use. The bill requires that permittees reimburse the DOT for expenses incurred by the DOT resulting from the permittee's unpermitted discharges to a right-of-way. Finally, the bill expands the DOT's ability to revoke or suspend a permit for rule violations relating to the permitting, construction, operation or maintenance of a facility.
Water Utilities This bill establishes procedures for the procurement of goods and services by the Public Service Commission (PSC). On the environmental front, it requires water and wastewater utilities to own the land or possess the right to continued use of land on which their treatment facilities are located. Also, water and wastewater utilities must now notify the PSC and customers prior to a name change.
Wastewater Treatment This bill provides authority to DEP to classify water and wastewater treatment plants based on plant size, complexity and water treatment level. This bill further authorizes DEP to establish certification levels and staffing requirements for water and wastewater operations as well as adopt as necessary other water treatment facility rules.
West Coast Regional Water Supply Authority CS/HB 4027, which is referred to as the West Coast Regional Water Supply Authority "governance" law, is intended to end the water wars between Hillsborough, Pasco, and Pinellas Counties. Those counties, plus the cities of Tampa, New Port Richey, and St. Petersburg, have vested extraordinary authority in the West Coast Regional Water Supply Authority (WCRWSA). The legislation results from a report submitted to the 1997 Legislature which recommended structural changes in the operation of the WCRWSA so that it might serve as the exclusive wholesale supplier of public water in the Tampa Bay region. In order to implement the provisions of this legislation, all 6 members of the WCRWSA have executed an interlocal agreement specifically detailing their duties and obligations. As a result of the legislation, the WCRWSA will be the primary, if not exclusive, provider of approximately 300 million gallons of water per day to the citizens of the Tampa Bay region. In an effort to prevent continuing administrative and judicial litigation involving water rights, member governments of the WCRWSA have agreed to modify or waive administrative rights under Chapter 120, F.S., and have agreed to participate and be bound by alternative dispute resolution processes. These issues are more specifically outlined in the interlocal agreement executed by the parties. The bill repeals all general and special laws affecting water in the WCRWSA. It also authorizes the member governments to use their financing capability for water treatment production and transmission facilities that might benefit the region. The powers which the member governments have relinquished and vested in the WCRWSA are specifically detailed in the interlocal agreement. The bill provides that the terms of the interlocal agreement control the more general language contained in the statute. The bill also contains provisions addressing the Miami River Commission. The Commission is identified as a coordinating clearinghouse relating to issues associated with the Miami River, and is authorized to seek and receive funding regarding river improvement projects. Membership of the Miami River Commission is specifically outlined. The power to limit commercial activity and to impose taxes, fees, or other financial obligations is prohibited unless approved by unanimous vote of all Commission members. The Commission will expire on July 1, 2003. One of the major incentives for the newly structured WCRWSA was the completion of a partnership agreement between the member governments and the Southwest Florida Water Management District (SWFWMD). This partnership agreement is being finalized and will include a provision appropriating $183 million from SWFWMD to be used by the WCRWSA to develop new water sources.
Restudy of the Central and Southern Florida Project In 1992, Congress authorized the Restudy of the Central and Southern Florida Project (Restudy). The purpose of the Restudy is to develop modifications to the Central and Southern Florida Project to restore the Everglades and Florida Bay ecosystems while providing for other water-related needs of the region. CS/CS/HB 4141 authorizes the South Florida Water Management District (District) to participate as local sponsor for the Restudy. The Joint Legislative Committee on Everglades Oversight (Joint Committee) is given the responsibility of monitoring all funding and expenditures for projects or operational changes resulting from the Restudy. The Joint Committee will review all alternatives evaluated by the Restudy as an interim project, hold at least two public hearings on the comprehensive plan proposed for the project area, and provide written comments to the U.S. Army Corps of Engineers and the District during the public comment period for the proposed comprehensive plan. In its written comments, the Joint Committee must address the extent to which the proposed comprehensive plan is consistent with the goals and objectives of Chapter 373, F.S., and the extent to which the proposed comprehensive plan considers all competing water uses. The District is required to obtain legislative authorization, which may be a general appropriation, prior to executing a project cooperation agreement for any project or operational change resulting from the Restudy. The Legislature will have the opportunity to approve, reject, or modify any proposed project or operational change. If the Legislature takes no action regarding the project modifications, the District may proceed with executing a project cooperation agreement, provided the District can meet its financial responsibility without future legislative appropriations.
Wastewater Treatment This bill amends provisions of Chapters 381 and 489, F.S., relating to onsite sewage treatment and disposal systems and regulation of persons installing or servicing septic tank systems. The bill provides the Department of Health (DOH) with clarified rulemaking authority to create a program for continuing education courses for persons installing or servicing septic tanks, including requirements relating to content of such courses and standards for approval of course providers, as well as criteria for accepting alternative continuing education proposals. The bill revises the statutory variance provisions from onsite sewage treatment and disposal system requirements to include cost as a factor in establishing that no reasonable alternatives exist for the treatment of sewage. The bill requires DOH to staff the existing variance review and advisory committee, and requires the committee to make its recommendation on variance requests at the meeting in which the application is scheduled for consideration, with certain exceptions. The bill clarifies that the variance review and advisory committee must include representatives recommended by the Florida Home Builders Association, the Florida Septic Tank Association, the Florida Engineering Society, and the Florida Association of Realtors. The bill establishes specific requirements for onsite sewage treatment and disposal systems located in floodways of the Suwannee and Aucilla Rivers. The bill requires DOH to staff the existing technical review and advisory panel to assist DOH with rule adoption. The panel is also authorized to review and comment on legislation or any existing or proposed state policy or issue related to onsite sewage treatment and disposal systems. The bill requires that the panel's position on proposed rules be made part of the rulemaking record maintained by the DOH. The bill clarifies DOH's authority to establish rules prescribing the method for approval of continuing education courses and for renewal of annual registrations for master septic tank and septic tank contractors.
Ad Valorem Tax Assessment of Agricultural Lands This bill clarifies that, when valuing agricultural property for ad valorem tax purposes, the property appraiser may consider factors which are reflective of the standard current practices in agricultural use and production. Now codified is the recommendation of the Greenbelt advisory task force that the property appraiser must utilize 5-year moving average data when calculating agricultural assessments based on the income methodology approach.
DEP Rulemaking for Phosphogypsum This bill requires DEP to adopt rules regulating the construction and operation of impoundment structures and water conveyance piping systems used in phosphogypsum management. In Chapter 62-672, F.A.C., DEP currently regulates some elements of this industry, but these rules do not address impoundment structures or water conveyance piping systems in any detail. This legislation is the direct result of a 54 million gallon spill from a phosphate facility in December, 1997.
Inland Waterway Management The Florida Inland Navigation District (FIND) and the West Coast Inland Navigation District (WCIND) were created by the Legislature as local sponsors of the Atlantic Intracoastal Waterway Project. FIND is a multi-county special district encompassing 11 east coast counties from Duval County south to Dade County. WCIND encompasses the four counties of Manatee, Sarasota, Charlotte and Lee. CS/HB 3369 expands the authority of both FIND and WCIND in the following ways. FIND and WCIND are authorized to execute cooperative agreements with the Federal Government in addition to state, member counties, and local governments within the district in order to alleviate problems associated with their waterways. The scope of such cooperative agreements may include local and regional anchorage management and beach nourishment projects in addition to public navigation, public recreation, inlet management, environmental education, and boating safety projects directly related to the waterways. FIND and WCIND may enter into cooperative agreements with the United States Army Corps of Engineers to share in the costs of acquisition, planning, development, construction, reconstruction, extension, improvement, operation and maintenance of projects. Both districts may enter into ecosystem management agreements with the DEP. The districts may now waive the requirement for matching funds on a project from member counties and local governments for the enhancement of public navigation; law enforcement on the waterways; environmental education projects within the district; and during states of emergency. Finally, DEP may negotiate a memorandum of agreement with FIND and WCIND to provide a supplemental process for the issuance of joint coastal permits or environmental resource permits for regional waterway management activities. The sunset review for WCIND is repealed.
Beach Management Funding CS/HB 3427 provides a dedicated funding source for management, restoration and renourishment of Florida's beaches, and amends the criteria to be used by DEP in determining annual funding priorities. The bill provides a legislative declaration that beach restoration and renourishment projects are in the public interest. The bill also provides for disbursements from the Ecosystem Management and Restoration Trust Fund to implement regional components of the beach management plan and to allow DEP to enter into agreements with other governmental entities to cost share and coordinate such activities. Such disbursements are contingent upon legislative appropriation. The bill directs that a portion of the documentary stamp tax revenues be deposited in the Ecosystem Management and Restoration Trust Fund for beach restoration and renourishment purposes. $10 million will be deposited into the Trust Fund in fiscal year 1998-99, $20 million will be deposited in fiscal year 1999-2000, and $30 million will be deposited in each fiscal year thereafter. Finally, the bill revises the criteria used to determine funding priorities and provides financial incentives to local sponsors to achieve savings through geographic coordination and sequencing. The also bill authorizes DEP to sponsor demonstration projects of new or innovative technology for beach renourishment.
Timber Management CS/HB 3671 is expected to result in the increased use of state lands for timber management. Forestry interests have long maintained that large parcels owned by the state could be timbered to generate revenue and to manage the resources. All land management plans adopted pursuant to Chapter 253, F.S., for parcels larger than 1,000 acres are required to analyze the parcel's potential to generate revenue through timber management, provided that such use is consistent with the primary management objective for the parcel. The management agency developing the plan is required to consult with a qualified professional forester to analyze the potential for timber management. State agencies with management responsibilities are encouraged to consult with the Division of Forestry for its assistance in developing the plans.
Conservation of Plants and Animals CS/HB 3673 provides for new recreational user permit fees on lands leased by the Game and Fresh Water Fish Commission (GFWFC) and corrects oversights to the 1996 aquaculture legislation. The bill clarifies jurisdiction over aquaculture activities and provisions relating to aquaculture general permits, providing for the streamlining of permit consolidation procedures. Harvesting or possession of saltwater species for experimental, scientific, education, and/or exhibition purposes is permissible, and a special activity license is authorized for the use of special equipment for those purposes (e.g., trawls, seines, nets, etc.), and where allowable, for innovative fisheries. The bill also provides for the delegation of regulatory authority to water management districts for certain aquaculture facilities and provides for a list of prioritized research needs for development of the aquaculture industry. A portion of the fees assessed on the alligator egg collection permit and the hide validation tag may be transferred to the General Inspection Trust Fund for providing marketing and education services for alligator products produced in this state. The bill also provides for importation or possession of non-indigenous saltwater species through special activities licenses (SALs) for production of marine aquaculture products in marine aquaculture facilities. It requires specific management practices for these species, as well as anadromous sturgeon, to prevent their release into Florida waters to protect indigenous populations of saltwater species and aquaculture facilities. Additional protection is provided for aquaculture products produced on submerged land leases by establishing a zone outside the lease where harvesting is prohibited. The bill requires the Aquaculture Review Council to provide, by August 1 of each year, a list of prioritized research needs critical to the development of the aquaculture industry to the Governor and Legislature. Future rulemaking will likely occur as a result of the modified SAL provisions and the delegation of oversight of certain aquaculture activities to water management districts.
Coastal Zone Protection This bill redefines "substantial improvement" pursuant to the Coastal Zone Protection Act. Under the revised definition, certain types of interior finishings will not be counted in determining the cost of an improvement or repair for purposes of determining whether the improvement or repair is "substantial." The impact of this change should be that fewer improvements and repairs will be deemed "substantial," thereby requiring fewer structures to be brought into compliance with the coastal building code. Certain nonstructural interior finishings are specifically excluded from the definition of "substantial improvement," including finish flooring and floor coverings, interior doors, freestanding metal fireplaces, tubs and shower enclosures, lavatories, and water heaters.
Special Event Submerged Lands Leases The Trustees of the Internal Improvement Trust Fund may now issue leases or consents of use for a period not to exceed 30 days for the use of sovereign submerged lands for special events. Such leases or consents of use may allow the installation of including docks, moorings, pilings and access walkways on sovereign submerged lands solely for the purpose of facilitating boat shows and displays in, or adjacent to, established marinas or government owned upland property. Nonapplicant owners of adjacent riparian uplands must be notified by certified mail of a request for such a lease or consent of use before approval by the Trustees. If the nonapplicant owner objects to the issuance of such a lease or consent of use, the Trustees must balance the interests of the objector with the economic interests of the public and the state as a factor in determining whether or not to approve the requested lease or consent of use. Special event leases or consents of use may not be issued for structures for viewing motorboat racing, high speed motorboat contests or high speed displays in waters where manatees are known to frequent.
Brownfield Redevelopment Incentives In 1997, the Legislature enacted the Brownfields Redevelopment Act (Act) designed to promote redevelopment of abandoned, under-utilized or idled industrial/commercial properties with actual or perceived contamination problems. While DEP proceeded to develop rules governing brownfield assessment and remediation activities, interested parties quickly recognized that the 1997 Legislation failed to offer sufficient economic incentives to attract meaningful interest in brownfield redevelopment activities. In response, the 1998 Legislature enacted CS/SB 1202 which, in addition to correcting minor glitches in the 1997 law, creates additional support mechanisms, economic and otherwise, to encourage brownfield redevelopment. The Act adds closed military bases to the list of areas not required to undergo public hearings for brownfield designations, which list also includes community redevelopment areas, enterprise zones, empowerment zones and designated brownfield pilot project areas. Additionally, where a brownfield designation requires the creation of new jobs, the legislation clarifies that the jobs must be "permanent," whether full-time or part-time. The bill also deletes the requirement that local governments, at the time of designating a brownfield area, notify DEP of the person responsible for brownfield rehabilitation for each site within the area. This allows local governments to use the brownfield designation as a means of attracting responsible persons into the area to redevelop the sites. The 1997 Act permitted a "brownfield redevelopment bonus" refund for qualified "target industry businesses" which are established at a rehabilitated brownfield site. The 1998 legislation requires the director of the Office of Tourism, Trade, and Economic Development (OTTED) to approve requests to waive the wage level requirements for the target industry positions unless it can be demonstrated that doing so is contrary to the public interest. The bill is intended to assist in the promotion of brownfield redevelopment through the creation of the Brownfield Areas Loan Guarantee Council. The Council's purpose is to review and approve or deny opportunities for participation in partnership agreements with institutions associated with the redevelopment of brownfields. The bill establishes minimum criteria to be met by participating lenders, and authorizes the Council to adopt rules governing the guarantees. This program is limited to 5 years in duration and subject to renewal by the Legislature. The Board of Regents is directed to establish at the University of South Florida the Interdisciplinary Center for Brownfield Rehabilitation Assistance. Among its responsibilities, the Center shall conduct research to develop solutions for rehabilitating and restoring brownfield properties and shall research risk-based corrective action solutions for brownfields. The bill authorizes an exception to the statutory limits on the frequency of local government comprehensive plan amendments where the amendment is related to proposed redevelopment of a designated brownfield site. Local governments with a designated U.S. Environmental Protection Agency brownfield pilot project and with a population below 1 million may apply to OTTED for designation of an enterprise zone encompassing the brownfield area. Applications must be submitted by December 31, 1999.
Brownfield Property Revolving Loan Trust Fund CS/SB 1204 creates the Brownfield Property Ownership Clearance Assistance Revolving Loan Trust Fund. The fund, administered by the Governor's Office of Tourism, Trade, and Economic Development (OTTED), establishes a mechanism to provide low-interest loans to be used to clear outstanding, unresolved contractor liens, tax certificates, or other liens on designated brownfield sites. OTTED may issue loans from the fund to local governments, community redevelopment agencies, or persons responsible for brownfield site rehabilitation. Loans from the fund may not exceed 5 years in term, and a single site is not eligible for more than 25% of the total funds available that year. The interest on the loans is capped by the legislation. OTTED is authorized to adopt rules to implement the Brownfield Property Ownership Clearance Assistance Revolving Loan Trust Fund created by CS/SB 1204.
Coastal Construction This bill provides authority to DEP for current coastal regulations which (1) relate to coastal excavation and construction, setback requirements, waivers or variances, exemptions, the removal of unauthorized structures or refilling of unauthorized excavations, and violations and penalties; (2) authorize the Department to establish exemptions for minor activities determined not to have adverse impacts on the coastal system; and (3) relate to the establishment of coastal construction control lines, activities seaward of the coastal construction control line, exemptions, and property owner agreements.
Coastal Redevelopment In recognition of the importance of redevelopment of coastal resort and tourist areas that are deteriorating and experiencing economic distress, the Legislature created the Coastal Resort Area Redevelopment Pilot Project (Project). The focus of the Project is to promote coastal redevelopment under the guidance of DEP. The bill appropriates an additional $1 million to DEP for the study of factors that control harmful algal blooms, including red tide. DEP is to administer the Project in the coastal areas of Florida's Atlantic Coast between the St. Johns River entrance and Ponce Inlet (i.e., the Daytona Beach-Jacksonville area). The authorization for the Project expires on December 31, 2002. The bill clarifies that coastal redevelopment projects are entitled to economic and other incentives available to "community development" projects. The Office of the Governor, DEP, and the Department of Community Affairs are required to assist in expediting the issuance of permits for coastal redevelopment projects. Similarly, activities within the Project area are exempt from certain siting and design criteria contained in Section 161.053, F.S. Exceptions are provided to both specific shore parallel coverage and impervious surface requirements for redevelopment within the Project area. Additional funds are appropriated to DEP for the purposes of studying and undertaking efforts to control and mitigate the effects of harmful algal blooms.
School Concurrency and Growth Management This bill establishes precise ground rules for local governments that wish to adopt school concurrency systems. The bill is based on recommendations of the Public Schools Construction Study Commission. The bill does not make it easier or more difficult to impose school concurrency; rather, it puts in place a more specific and detailed prescription of the components of a school concurrency system, and the standards to be applied in determining whether such a system is in compliance with state law. It strengthens coordination requirements between local governments and school boards. The bill also establishes an optional sector-planning process for large-scale land planning with the prospect of an exemption from DRI review as an incentive. Finally, the bill creates two study commissions on significant growth management issues. Specific highlights are outlined below. A school concurrency must be established only on a countywide basis, and public school capital facilities program adopted as the foundation for school concurrency must meet the same financial feasibility standard which applies to other capital improvement programs. The bill encourages local governments to utilize a countywide school concurrency service area but allows less-than-countywide service areas if local officials demonstrate that they have maximized utilization of school capacity consistent with certain other criteria. If less-than-countywide service areas are utilized, they must be specified in the local comprehensive plan to ensure the public schools capital facilities program is financially feasible. School concurrency may only be imposed with uniform level of service standards that apply countywide to all schools of the same type, such as elementary, middle and high schools. The bill enacts a 3-year availability standard for school concurrency, although local governments retain the option to set a more lenient availability standard. The current requirement that a county, school board, and all municipalities in the county sign an interlocal agreement as a prerequisite for school concurrency is continued, although it is relaxed somewhat by exempting municipalities with a de minimis impact on school occupancy. Specific contents of the interlocal agreement are established in the bill. The school concurrency provisions are scheduled to take effect July 1, 1998, the expiration date for a legislatively enacted suspension of local government authority to impose school concurrency in all counties except Broward. With regard to Broward County, it must implement its school concurrency system based on pre-existing general law; the Final Order adopted by the Governor and Cabinet in March, 1998, finding Broward's system not in compliance with state law; and the outcome of a pending appeal. The legislation fine tunes Chapters 163 and 235, F.S., to promote closer coordination of land planning by local governments and school planning by school boards, with new requirements for local governments to identify land use districts in which schools are permissible, and criteria to promote locating schools in residential areas. The bill extends the interval between evaluation and appraisal reports (EARs) from 5 to 7 years and changes the enforcement mechanism so a local government would have until 1 year after the due date for its EAR to be found sufficient before restrictions on plan amendments would go into effect. The existing exemption for DRI-related plan amendments from this enforcement mechanism is retained. All existing statutory applications of the State Land Development Plan (SLDP) are eliminated, including the one making consistency with this plan a requirement for DRI approval. The bill provides that the SLDP shall have no legal effect unless the Legislature by general law either enacts the SLDP as a statute or grants DCA express rulemaking authority to adopt the SLDP by rule for a specific application. The bill makes it permissive for the Executive Office of the Governor to adopt a rule establishing minimum criteria for plans adopted by regional planning councils but retains a requirement for the Governor's staff to review draft plans. The current State Comprehensive Plan (SCP) is officially designated as the state planning document required by a 1992 constitutional amendment. The bill directs the Governor to set up a special committee to study the current SCP so the new Governor can recommend any changes by October 1, 1999. This committee also will consider whether the SLDP should be retained and, if so, what application it should have. Up to 5 pilot projects are authorized for a 2-step sector planning process for development of 5,000 acres or more. A local government would adopt a long-term buildout overlay as part of its comprehensive plan and also adopt smaller, more detailed sector plans for areas of at least 1,000 acres. Both acreage thresholds could be waived. Both plans would be based upon the uniform standards used in DRI reviews. When a sector plan is found in compliance, development would be exempt from DRI review. The bill sets up the Transportation and Land Use Study Committee to study land use and transportation issues, including community design, concurrency on the highway system, level of service methodologies, and land use assessments used to project transportation needs. The committee's finding and recommendations are due to the Legislature by January 15, 1999. And finally, the bill expands the authority of the Governor's Office of Tourism, Trade and Economic Development to award grant funds to military base re-use activities, but it requires more matching funds from local governments for such grants. The bill also changes some timelines for the military base re-use planning process.
Land Platting The state now has uniform standards and procedures for surveying and mapping lands which will be subject to a recorded plat. Such standards relate to the type and placement of reference monuments--permanent control points permanent reference monuments, etc.--to be used by surveyors in preparing the subdivision plat. Other standards relate to the information--legends, "northing" arrows, etc.--which must appear on the face of the subdivision plat. The bill requires subdivision plats to be prepared by a professional surveyor and mapper. The plat must include a boundary survey of the property being subdivided. Also, the plat must be reviewed for conformity with the requirements of Chapter 177, F.S., by a professional surveyor and mapper employed by the local government. The cost of that review is borne by the entity offering the plat for recordation. Recorded plats must show the location and width of proposed and existing easements identified in the title opinion for the property. The approval of a "replat" which encompasses lands embraced by a prior recorded plat shall automatically and simultaneously vacate the prior plat.
Enterprise Zones HB 3225 expands the list of companies eligible to take advantage of enterprise zone tax benefits. Counties are authorized to alter enterprise zone boundaries. The bill also authorizes Enterprise Florida to administer $1.2 million for grants-in-aid to the Technological Research and Development Authority. The bill provides that an enterprise zone business in a community impacted by fishing net limitations is eligible for the maximum sales tax and corporate income tax credits available, provided that 20% or more of its employees are residents of the county within which the enterprise zone is located. The bill exempts certain commercial fishing vessels, fishing guide boats and ecotourism guide boats from Florida's sales tax if certain requirements are met.
Greenways It is now possible for landowners to contract with the state to designate private property as part of the Greenways and Trails System administered by DEP. As a participation incentive, the bill provides limitations on landowner liability among other landowner benefits. Private property designations could be beneficial in meeting open space and recreation requirements for land development projects, especially new communities. Most significant are the liability protections afforded by the legislation. Owners who designate land as part of the Greenways system owes no duty of care to those who enter the greenway. They are further relieved of a duty to warn of hazardous conditions. Similarly, owners who designate land for the Greenways system are relieved of liability for injuries to persons caused by an Act or omission of a person who enters the land. The limitations on liability also apply to owners adjacent lands that are accessed from a designated greenway. The DEP must erect signs on the perimeter of a greenway designated on privately-owned land informing greenway users that adjacent lands are private property. DEP is authorized to indemnify a private landowner against damage claims by third parties as part of an agreement to designate a greenway on private lands. Planning materials, maps, surveys and other information used in the Greenways program to identify prospective greenways shall not constitute a designation. Identification of lands in such materials shall not have any regulatory effect. Designation of a greenway on private land shall only be by contract with the landowner. DEP is authorized to negotiate greenway designation agreements which include retention of certain rights by landowners, moving parcels higher on the state land acquisition priority list and other benefits. Other aspects of the bill include the naming of the Cross-Florida Greenways State Recreation and Conservation Area in honor of the late Marjorie Carr, a Gainesville environmentalist. Also, the Board of Trustees of the Internal Improvement Trust Fund is directed to sell certain lands in Walton County, acquired as part of a major state land acquisition in 1993, to Walton County for creation of a new town based on plans prepared by the state-funded South Walton Conservation and Development Trust. DEP is authorized to promulgate rules to implement the statutes creating the basis for greenway designation agreements between DEP and private landowners.
DOT Mitigation/Lake Belt Mitigation/Eminent Domain CS/HB 4071 combines several separate issues raised during the 1998 Session. DOT will continue to be a beneficiary of a $75,000 per acre impact mitigation plan implemented by water management districts and DEP. DEP benefits by having the period of time for its repayment of a $12 million advance from the DOT extended for 4 years. Mitigation bankers must be consulted prior to the development of DOT's mitigation plan. A preliminary plan must be submitted by December 1, 1998. Submittal of this preliminary plan must include an explanation of why mitigation banks were (or were not) chosen as a possible option of mitigating the DOT construction impacts. A water management district's preliminary approval of a DOT mitigation plan is not subject to an administrative challenge. Limerock miners in Dade County will benefit by implementation of the Lake Belt Mitigation Plan which authorizes excavation of limerock in an area of the East Everglades in exchange for the payment of a mitigation fee at the rate of $0.05 per ton. That fee will become effective on October 1, 1998. The monies generated by the fee will be transferred to the District and deposited into the Lake Belt Mitigation Trust Fund created by another bill (CS/HB 1667). The District is directed to use the mitigation monies to purchase, restore or manage wetlands and uplands, or to purchase mitigation credits from mitigation banks, to offset the loss of the value and functions of the wetlands impacted by the mining. The expenditure of monies pursuant to the mitigation plan shall be reviewed by an inter-agency committee. The bill provides that the payment of the mitigation fees will satisfy all local, state, and regional mitigation criteria, and it further expresses the intent that federal mitigation requirements are also met. A formula is provided for the increase in the limerock mitigation fee beginning on January 1, 2000. Annual reports are required to be submitted evaluating the costs and revenues generated by the fee. Landowners within the Kissimmee River restoration area may become involved in condemnation proceedings based on authority granted to the South Florida Water Management District (SFWMD). All landowners within the SFWMD may benefit from a provision that will prevent the SFWMD from using federal condemnation proceedings to acquire property. This provision was extremely controversial with environmental groups. To promote and encourage the SFWMD's acquisition of lands in and around the Kissimmee River and the C-111 Canal, those projects are legislatively determined to be in the public interest. Specific authority is granted to the SFWMD to exercise its eminent domain authority to acquire specified property. To prevent the SFWMD from using federal eminent domain law to reduce the acquisition price for lands within the SFWMD, the bill provides that through July 1, 2000, monies may only be disbursed to the federal government for acquisition if the value paid is commensurate with that which would have been paid using Florida eminent domain law. This provision resulted from a number of complaints that landowners were being denied recovery of attorneys' fees and other guarantees under Florida law by use of the federal condemnation procedures. In 1994, prior to the state's acceptance of the NPDES delegation, the Legislature allowed DEP to borrow $3.2 million from the Pollution Recovery Trust Fund to start this permitting program. DEP was obligated to repay this loan by July 1, 2000. CS/HB 4071 relieves DEP of that obligation. The bill furthers the recognition of global positioning survey systems and the surveys resulting from the use of this technology. The bill states that wetland locations approved or conducted by DEP or water management districts that are certified by an engineer or a surveyor must be accepted as a formal jurisdictional determination and can serve as the basis for a permit under Chapter 373, F.S. Although global positioning systems are not specifically referenced, it was agreed that the location of wetlands can be determined by use of this technology so long as an engineer or a surveyor certifies the accuracy of that delineation and the SFWMD or DEP approves.
Frank Matthews is a Shareholder with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida, and has lobbied extensively over the last 14 years on environmental issues. He represented development, agricultural, utility, municipal and mining interests on brownfields, wetlands, water, property rights and land acquisition legislation this past session.
Gary K. Hunter, Jr. is a Shareholder with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida. His practice focuses on environmental litigation and solid and hazardous waste regulation. Mr. Hunter received his J.D., cum laude, from the University of Georgia where he also received his B.B.A.
Robert Manning is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida, and is the Chair of the Legislative Committee of the ELULS. He received his B.A. from the University of Florida and his J.D., with High Honors, from the University of Tennessee. Mr. Manning practices primarily in the areas of air and water quality regulation and permitting.
Special thanks go to many other individuals at Hopping Green Sams & Smith, P.A. for their contributions to this legislative summary. |
1998 Legislative Update