Restoration of the Everglades and Lake Okeechobee spotlighted the environmental agenda for the 2000 legislative session. The state committed to fund over $105 million annually for 10 years for Everglades restoration, to convince and cajole the federal government into sharing the $7.8 billion price tag. Lake Okeechobee received a $38 million jump start along with legislative authorization of an orderly process of evaluation and restoration.

     Other successful environmental and land use measures that were dwarfed by the attention paid to Everglades funding included a brownfield glitch bill, direction for the adoption of a uniform wetland mitigation assessment methodology, a Florida Forever glitch bill, an air permitting pilot project for the citrus industry, and the elimination of the Motor Vehicle Inspection Program. The remainder of the environmental and land use agenda stalled in the Senate with the failure to pass a sovereignty submerged lands bill, a growth management reform bill that included the creation of a study committee, a bill creating the Rodman Recreation Area, and a bill that would have curtailed initiation of citizen suits under Chapter 403, Florida Statutes (F.S.). All in all, there were fewer environmental and land use initiatives than in previous years.

     The Everglades, Lake Okeechobee, and wetland mitigation bills are covered in the featured articles of this Reporter. The following are brief summaries of the other significant environmental and land use law related bills that passed this session.


Brownfields
CS/CS/CS/SB 1406
Effective: July 1, 2000

     This bill is intended to improve the cleanup process associated with brownfield redevelopment sites. Since 1996, there has only been a handful of brownfield redevelopment projects which have executed site rehabilitation agreements, and the changes made this year were intended to further enhance the prospects of brownfield cleanup and redevelopment. The bill clarifies the risk based corrective action (RBCA) cleanup criteria to describe the iterative process of risk analysis more closely in keeping with the American Society for Testing and Materials (ASTM) approach to risk analysis. The Department of Environmental Protection (DEP) is obliged to provide an early decision during the analysis informing the party responsible for the cleanup what applicable exposure factors and risk management approach should be applied to the project. In developing its target cleanup levels, DEP shall not require that a site rehabilitation achieve a target cleanup level more stringent than the site-specific naturally occurring background concentration for that contaminant in both groundwater and soils.

     The bill provides that institutional controls are required as part of a risk-based cleanup if specific criteria are met. The liability protections afforded to innocent third parties purchasers are expanded, as are the limitations applicable to a person whose property becomes contaminated through the migration of contaminated materials from a nearby designated brownfield area. Projects which are within a designated brownfield area are expressly authorized to make use of the expedited permitting process found in Section 403.973, F.S.

     The bill provides that the eligibility criteria for brownfield redevelopment bonus refunds include not only target industries identified in Section 288.106(2)(o), F.S., but also businesses showing a fixed capital investment of at least $2 million involving a mixed-use business activity. A mixed-use business activity is defined as including multi-unit housing, commercial, retail, and industrial activities which occur in brownfield areas and which pay wages of at least 80% of the average private sector wages in the county where the brownfield area is located.

     Section 376.051(6), F.S., is amended to provide authority for DEP to utilize RBCA cleanup criteria on lands owned by the state university system. New language was added to Section 376.303, F.S., requiring local governments to develop central repositories for the registration of brownfield sites and then depict those sites on their various land use maps.

     The bill directs Enterprise Florida, Inc., to apply 30% of the moneys appropriated for Quick Response Training for enterprise zone and brownfield area businesses, and to develop a comprehensive marketing plan for the redevelopment of brownfield areas. Community Development Districts (CDDs) are expressly empowered to finance and undertake investigation and remediation of contamination within the CDD's boundaries. 


Solid Waste Collection/Recovered Materials
Citrus Processing Air Permitting
CS/HB 1425
Effective: July 1, 2000

     CS/HB 1425 is an omnibus environmental bill dealing with a number of miscellaneous topics. Solid waste collection operations are protected by statutory recognition of their existing contract terms or a period of five years, whichever is shorter, when a local government seeks to undertake these services through annexation, merger, or incorporation. Sections 403.087 and 403.722, F.S., are amended to acknowledge and recognize the use of post-closure plans as an alternative to hazardous waste permits. The fee for a post-closure plan reviews is capped at $32,500. 

     The bill provides that recovered materials dealers may not be required to obtain a franchise agreement with a local government before providing contractual services to commercial establishments. In addition, recovered materials dealer registration costs are statutorily limited to those direct costs incurred by a local government in its registration process.

     Effective July 1, 2002, 26 existing citrus juice processing facilities throughout Florida are provided a statutory permit which deals with specific air emission requirements for sulfur, volatile organic compounds, nitrogen oxides, visible emissions, and particulate matter. The effectiveness of this portion of the bill is dependent upon EPA approval, for which DEP must apply by February 1, 2001. Unless EPA approves this new law within two years thereafter, the traditional permit requirements will apply. Because of the experimental nature of this new regulatory alternative, a report must be prepared by DEP and presented to the Legislature by March of 2004. Other major sources of air pollution are aided by the bill with provisions allowing for the separate processing of Title IV (acid rain) and Title V (new source) permit applications. 


Florida Forever Program and State Lands
HB 2403
Effective: Upon Becoming a Law

     HB 2403 is the Florida Forever "glitch" bill that has many substantive impacts on the Florida Forever Program. The bill provides that the $3 billion limitation on the issuance of Florida Forever bonds does not apply to refunding bonds. The bill creates the Land Management Uniform Accounting Council (LMUAC) within DEP. By June 20, 2000, the LMUAC must review current land management activities and needs and group them into categories. All land management activities and costs must be assigned to a category. Upon adoption of the initial list of categories by the LMUAC, the agencies responsible for managing conservation or recreation lands must begin to account for land management costs in accord with the category to which the expenditure is assigned. By January 1, 2001, the LMUAC must provide its adopted complete list of land management categories to the Governor, the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), the President of the Senate, the Speaker of the House, and the Acquisition and Restoration Council. Beginning July 1, 2001, the LMUAC must report agencies' expenditures pursuant to the adopted categories to the President of the Senate and the Speaker of the House annually.

     The South Florida Water Management District (SFWMD) or DEP can place reasonable conditions, consistent with existing laws and rules, on habitable structures located in water conservation areas two or three, on lands of the District or on state-owned lands. If habitable structures are located on these lands, the owner of the structure must provide written notice to the SFWMD of the structure's existence and location. Failure to comply with the reporting requirements makes the structure subject to removal.

     The bill provides that when the state receives land without giving monetary consideration, the price of the land sold as surplus must not exceed the fair market value of the land. The fair market value of the land is determined by the average of two appraisals done by approved appraisers. The bill also provides that Trustees will hold title to land protection agreements and conservation agreements that were or will be acquired pursuant to Section 380.0677, F.S. Finally, the bill creates the Miami River Improvement Act, which is intended to promote a coordinated federal, state, regional, and local effort to improve the Miami River and adjacent areas.



Waste Exchange/Hazardous Waste Transfer
CS/CS/SB 714
Effective: July 1, 2000

     SB 714 provides continued state funding for the Southern Waste Information Exchange (SWIX) which will provide further solid and hazardous waste management assistance to Florida's public and private sectors. Future SWIX funding would be based on DEP's evaluation of SWIX requested funding needs in comparison to other funding demands of its Solid Waste Management Trust Fund. SWIX, a non-profit organization formed to assist Florida's private and public sectors with waste management needs, has operated as a clearinghouse for information on waste recycling use and reuse opportunities for Florida waste generators. The management or storage of hazardous waste at a transfer facility would be subject to similar regulation as applied to other types of hazardous waste facilities, including permitting requirements. Additionally, SB 714 codifies a definition of "hazardous waste transfer facility" within Chapter 403, F.S., so as to include areas where manifested shipments of hazardous waste are stored or held for a period of more than 24 hours but not more than 10 days.


Water Management District General Permit Delegation
HB 2071 
Effective: Upon Becoming a Law

HB 2071 specifically authorizes water management district rules providing for delegation of the duty to review and issue general permits by the governing boards to their executive directors. The district executive director may execute the delegated authority through designated staff. The bill authorizes long-existing ERP and consumptive use general permit rules which established a staff-issued general permit process for projects which have minimal water resource impacts. In 1999, these delegation rules had been listed, pursuant to Section 120.536, F.S., by most water management districts as lacking sufficient statutory authority. 

Much broader delegation authority was provided to the water management districts during the 2000 legislative session by CS/CS HB 2365. However, both HB 2071 and CS/CS HB 2365 require the district governing boards to provide a process for referring any denial of an ERP or consumptive use permit application to the governing board for final action.


Motor Vehicle Inspection Program Elimination
CS/SB 772
Effective: Upon Becoming a Law, Except as Otherwise Provided

CS/SB 772 eliminates the Motor Vehicle Inspection Program (MVIP) statewide, effective July 1, 2000. Emissions testing of automobiles currently occurs in Dade, Broward, Palm Beach, Duval, Hillsborough, and Pinellas Counties. Emissions testing of automobiles will no longer be required anywhere in Florida. Since the MVIP is contained in Florida's State Implementation Plan (SIP), which implements some of Florida's obligations under the federal Clean Air Act, EPA must ultimately approve the elimination of the MVIP. EPA has proposed a rule to withdraw the MVIP from Southeast Florida and Jacksonville due to improved air quality in those areas, but has not done so for the Tampa Bay area due to its continuing air quality problems. 



Environmental Reorganization
CS/SB 186
Effective: Upon Becoming a Law

The bill generally provides for internal organization provisions for both DEP and the Fish and Wildlife Conservation Commission (FWCC). It also continues the restructuring of the FWCC which was created last session and the various duties and responsibilities which have been transferred from DEP to that body, including the former Marine Fisheries Commission. The FWCC's obligation to follow provisions of Chapter 120, F.S., when adopting rules in performing its statutory duties and responsibilities is clarified. The bill reorganizes DEP, increasing the number of deputy secretaries from two to three, creating an Office of the Chief of Staff, and eliminating the Executive Coordinator for Ecosystem Management.

On a substantive level, the 1997 designation of Lake Weir as an aquatic preserve is repealed. Additionally, $2 million from the documentary stamp tax revenue is directed to be deposited into the Marine Resources Conservation Trust Fund to be used for rehabilitation and release of manatees in acute care facilities and to provide training related to the care of marine mammals. Sea World is to receive $1.15 million in fiscal year 2000-2001, and the Whitney Laboratory at the University of Florida is to receive $810,000.


Water Pollution Control
CS/CS/SB 1646
Effective: Upon Becoming a Law

SB 1646 expands the purposes for which loans can be made by DEP under the federal Sewage Treatment Revolving Loan Fund. In addition, the bill allows for a full range of financing options to take advantage of market conditions and expand the funding capabilities of the fund. Currently, DEP is authorized to make loans and grants from this trust fund to local governments to assist them in planning, designing, and constructing sewage treatment facilities and stormwater management systems. The Sewage Treatment Revolving Loan Fund monies come from the federal government and matching state funds. Congress has amended the Clean Water Act to allow these funds to be used for a broader array of projects such as stormwater management systems, nonpoint source pollution control, and estuary conservation and management projects. The bill expands the kinds of projects that may be funded under the trust fund to include any activity eligible for funding under federal law (Section 603 of the Federal Water Pollution Control Act, Pub. L. No. 92-500) such as septic tank replacement or upgrades, projects to address agricultural runoff and other nonpoint sources of pollution, and certain restoration activities.

The bill requires DEP to develop rules to prioritize eligible projects for funding. The bill also lists factors DEP shall consider in giving priority, such as whether the project will eliminate public health hazards, assist in the implementation of total maximum daily loads adopted under Section 403.067, F.S., promote reclaimed water reuse, and eliminate failing onsite sewage treatment systems that are causing environmental damage.



Florida Keys Rules for Coordinated Agency Permit Review
HB 2055
Effective: Upon Becoming a Law


HB 2055 authorizes state and regional agencies to adopt rules to implement coordinated agency review of permit applications for the Florida Keys Area of Critical State Concern. Existing South Florida Water Management Rule 40E-1.615, Florida Administrative Code (F.A.C.), coordinating environmental resource, surface water management, and water use permits for the Florida Keys Area of Critical State Concern, had been adopted by reference in Rule 62-330.200(4)(a), F.A.C. However, Section 380.051, F.S., which authorizes a developer to seek coordinated review of permits in the Florida Keys Area of Critical State Concern, had previously contained no specific authority for state and regional agencies to adopt rules for such review. The adoption of HB 2055 fills this apparent "gap" in statutory authorization so as to bring the existing agency rules into compliance with Section 120.536, F.S., which states that an agency may adopt only those rules which implement or interpret specific powers and duties conferred by statute.


Beach Management and Funding
CS/CS/HB 1005
Effective: July 1, 2000

HB 1005 clarifies and expands Chapter 161, F.S., the criteria for selection of beach management projects for state funding. In order to receive public funds, a project must provide for adequate public access and protect natural resources and endangered species. Projects which provide recreational benefit only are not eligible for state funding. DEP is also authorized to enter into cooperative agreements with local governments for inlet management projects and to cost-share portions of inlet management projects which minimize the erosive effects of inlets or provide for the placement of beach quality material on adjacent eroded beaches.

Sham Recycling
HB 1529
Effective: July 1, 2000

The bill addresses when material in a waste collection container changes from a "recyclable" material to "solid waste" material, while acknowledging that small amounts of solid waste may exist in the stream of recyclable materials. This bill will assist local governments with ways to identify "sham recyclers" - those who contend they are hauling recycling materials (thereby avoiding local government franchise agreements), but are really hauling a significant amount of solid waste with recyclable materials for landfill disposal. The bill modifies the existing definition of "source separated" to provide that when there are more than two types of recyclable material in a collection container, and more than 10% of the collection container is also solid waste, then all of the material in the container (including the recyclable material) is deemed to be solid waste. 

Right to Farm
CS/CS/SB 1114
Effective: Upon Becoming a Law

SB 1114 prohibits a local government from adopting any law regulating farm operations on duly classified agricultural lands where such activity already is regulated by DEP, Department of Agriculture and Consumer Services (DACS), or a water management district pursuant to rules adopted under Chapter 120, F.S. Exceptions to this new prohibition include certain local ordinances related to pesticide application, wellfield protection, and emergencies.

DACS is authorized to develop rules, in consultation with DEP, addressing statewide decontamination to prevent and limit the spread of citrus canker disease. The bill states that DEP is not authorized to initiate legal proceedings for costs, damages, or remedial relief associated with soil contamination where such contamination is associated with efforts to limit the spread of citrus canker in accordance with the DACS regulations. DEP is additionally prohibited from instituting legal proceedings for costs, damages, or remedial relief associated with pesticide contamination so long as the pesticides are applied in accordance with applicable laws and label requirements, and so long as certain records are kept and provided on request. The prohibition on instituting legal proceedings for pesticide contamination applies retroactively. DACS, in consultation with DEP, is authorized to adopt rules setting record retention requirements.


Seawall Construction Permit Exemptions
SB 668
Effective: Upon Becoming a Law

SB 668 provides the necessary statutory authorization for existing DEP rules that limit certain permit exemptions for construction of private seawalls. Without this authorizing legislation, Section 120.536(2)(b), F.S., would have required DEP to initiate rulemaking by January 1, 2001 to repeal the rules, since the rules had been previously identified as exceeding the agency's previous rulemaking authority. 

Environmental Trust Funds
HB 1189, HB 1957, HB 1997, HB 2153, and HB 2155
Effective: July 1, 2000


These bills create trust funds in various agencies to provide moneys to be used for environmental restoration and land acquisition and management. HB 1189 creates Section 373.45952, F.S., that establishes the Lake Okeechobee Protection Trust Fund to be used by DEP as a depository for funds designated for implementation of the Lake Okeechobee Protection Program and related Surface Water Improvement and Management (SWIM) activities. HB 1957 creates Section 373.472, F.S., that establishes the Save Our Everglades Trust Fund within DEP to serve as the repository of state, local, and federal project contributions dedicated for the U.S. Army Corps of Engineers' Comprehensive Review of the Central and Southern Florida Project for Flood Control and Other Purposes, more commonly known as the "Restudy."

HB 1997 creates Section 589.065, F.S., that establishes the Florida Forever Program Trust Fund within DACS for receipt and disbursement of funds related to the Florida Forever Program. This Program is designed to fund the acquisition of state forest inholdings and additions pursuant to Section 589.07, F.S., and the implementation of reforestation plans and sustainable forestry management practices. The trust fund is expected to receive an appropriation of $4.5 million for 2000-2001. 

HB 2153 creates Section 570.207, F.S., that establishes a Conservation and Recreation Lands (CARL) Program Trust Fund in DACS to provide for the management of CARL lands by that agency. 

HB 2155 creates Section 372.127, F.S., that establishes a CARL Program Trust Fund within the Fish and Wildlife Conservation Commission for the management of recreation lands by the Commission. Except for the land management agency involved, HB 2153 and HB 2155 are substantively identical. These measures will make agency land management expenditures easier to track and assess. Funds may be appropriated to the trust funds from the CARL Trust Fund of DEP or other legislatively determined sources. Balances remaining at the end of a fiscal year remain in the funds. 




Eric T. Olsen is an attorney with Hopping Green Sams & Smith, P.A., concentrating his practice in wetlands and water regulation, mitigation banking, rulemaking and legislation. He received his J.D., with honors, from the University of Florida College of Law in 1989, and his B.A. degree from Clemson University in 1986. Mr. Olsen was formerly a senior attorney with the St. Johns River Water Management District. 

Kathryn Mennella is General Counsel of the St. Johns River Water Management District. She has been employed by the St. Johns River Water Management District for 16 years. She received her J.D., with honors, from the University of Florida College of Law in 1980, and a B.S., with honors, in forestry from the University of Florida in 1978. Ms. Mennella contributed the summary of HB 2071.