The Legislature concluded its 1999 Regular Session on April 30, 1999. Although fewer bills were passed by the Legislature this year, the 60-day Session included its typical flurry of activity with over 2,500 bills being filed in the House and Senate. As expected, tax cuts, tort reform and education were the marquee issues considered this Session. By contrast, the amount of environmental and land use legislation was limited.

     The $48.9 billion budget approved by the Legislature included almost $1 billion in tax breaks to businesses and individuals. Of potential interest to environmental and land use practitioners, the tax breaks included an exemption from the sales tax for the purchase of machinery and equipment used in certain manufacturing operations (CS/HB 397), and a credit against the severance tax paid by mining companies (HB 105).

"Florida Forever"

     The extension of the Preservation 2000 (P-2000) land acquisition program was the highest profile environmental issue considered during the 1999 Session. Ultimately, the Legislature approved a $3 billion ($300 million annually over 10 years) program to be known as "Florida Forever." The new program will commence in 2001, after the expiration of P-2000 in the year 2000. As with P-2000, the new program will be funded primarily by documentary stamp tax revenue. The extension of P-2000 was one of Governor Bush’s campaign issues, and he is expected to sign the bill (CS/CS/SB 908) into law.

     The new program is intended to have a broader focus than P-2000 which focused primarily on the acquisition of environmentally sensitive lands. Approximately 60-70% of the annual funds are earmarked for land acquisition (as compared to almost 100% in P-2000), with a significant portion of those funds to be used for the purchase of urban parks and in-holdings. The remaining 30-40% of the funds are earmarked for water management purposes. The bill specifically authorizes and encourages the multiple-purpose use of the lands purchased under P-2000 and the new program, including water resource development, agriculture and silviculture, and siting of linear facilities (e.g., electric transmission lines, pipelines, etc.). Consent of the Governor and Cabinet is required for these uses of state lands.

     In conjunction with the creation of the "Florida Forever" program, CS/CS/SB 908 establishes the Acquisition and Restoration Council (ARC). The ARC is composed of the Secretary of DEP and representatives of DCA, the Fish and Wildlife Commission, the Division of Historic Resources and the Department of Agriculture and Consumer Services, and 4 members appointed by the Governor. The ARC will be responsible for reviewing land purchase recommendations and management and use plans for state-owned lands, and providing a prioritized list of potential acquisitions to the Board of Trustees of the Internal Improvement Trust Fund (i.e., Governor and Cabinet) for approval. The ARC will complement Florida Communities Trust which provides grant monies to local governments to purchase open space and greenways.

     Other provisions of CS/CS/SB 908 which are intended to further the multiple goals of the new "Florida Forever" program include:

· Creation of a Florida Forever Advisory Council to evaluate the performance of the "Florida Forever" program and to report biennially on unmet environmental needs that the program should address.

· Authorization for the use of Conservation and Recreation Lands (CARL) monies for the management of state lands.

· Authorization for public-private land management partnerships.

· Limitations on "surplusing" of state lands acquired under P-2000, "Florida Forever" or other conservation programs.

· Provisions for payment in lieu of taxes to counties, cities, school boards and other units of local governments within the county where the State’s land holdings within that county result in a specified loss in ad valorem tax revenue.

· Re-authorization of the Florida Greenways and Trails Council.

Other Significant Bills that Passed

     What follows is a brief discussion of the other environmental and land use bills of interest which were approved by the Legislature. Except as otherwise noted, each of these bills has been or is expected to be approved by the Governor.

Administrative Procedure Act: CS/HB 107 clarifies the legislative intent underlying several aspects of the 1996 APA reform. The bill re-emphasizes the limitation on agency rulemaking authority that is codified in section 120.536, F.S. In so doing, the bill specifically rejects the interpretation of that statute in Consolidated-Tomoka Land Co. v. SJRWMD, 717 So.2d 72 (Fla. 1^st DCA 1998). The bill also clarifies that agencies may not adopt retroactive rules, including rules intended to clarify existing law, unless the Legislature specifically authorizes the agency to do so. This language was adopted in response to the court’s decision in Environmental Trust v. DEP, 714 So.2d 493 (Fla. 1^st DCA 1998). The bill also rejects the analysis of the concurring opinion in Dept. of Children & Families v. Morman, 715 So.2d 1076 (Fla. 1^st DCA 1998), which would permit the agency to reject the administrative law judge’s conclusions of law over which the agency does not have substantive jurisdiction. Finally, the bill further restricts agencies from rejecting or modifying the administrative law judge’s conclusions of law or interpretation of agency rules unless the agency demonstrates that its conclusion or interpretation is "more reasonable" than that rejected. It should be noted that the bill specifies that it is not intended to "reverse the result of any specific judicial decision" (emphasis supplied).

Clean Fuels Advisory Board: CS/SB 1270 creates the Clean Fuels Advisory Board within the Department of Community Affairs (DCA). The Advisory Board includes 22 members including representatives of DEP and other state agencies as well as representatives of cities, counties, the petroleum industry, automobile manufacturers, and others appointed by the Secretary of DCA. The purpose of the Advisory Board is to formulate recommendations on expanding the use of alternative fuel vehicles (AFVs) in Florida. AFVs include vehicles powered by electricity, natural gas, propane or other non-petroleum fuels. Within 4 months after its first meeting, the Advisory Board is to recommend the creation of one or more public-private pilot projects to provide experience and support for the expansion of the AFV industry in Florida. During the remainder of its 5-year life, the Advisory Board is to identify any statutory or regulatory changes needed to increase the use of AFVs in Florida, including modifications to the current fuel tax system.

Community Environmental Health: As initially proposed, SB 2352 and HB 1413 established seven pilot projects through which the Department of Health would promote disease prevention and health care among low-income persons living near environmentally contaminated areas. SB 2352 and HB 1413 failed to pass; however, language in HB 2231 (which did pass) establishes pilot projects to promote disease prevention and health care among low-income persons living in "urban and rural areas." HB 2231 significantly altered the focus of the pilot projects by eliminating reference to brownfields and the federal Superfund program. The pilot projects will develop educational and outreach programs which could then be implemented in other low-income communities, not just those low-income communities impacted by environmentally contaminated areas.

     The pilot projects established by HB 2231 will be conducted in areas such as the Palafox Redevelopment Area in Escambia County, the low-income areas in the City of Riviera Beach, and the Challenge 2001 Area in St. Petersburg. DOH is required to prepare a report to the Legislature and the Governor regarding the findings, accomplishments, and recommendations of the pilot projects by January 1, 2001.

DRI Exemption for Certain Port Activities / Increase in DRI Threshold for Heavy Mining Activities: Language in CS/CS/SB 1566 exempts expansions to harbors, spoil disposal sites, navigation channels and berths at certain ports from the DRI review process. The exemption only applies if the expansions are consistent with the port’s adopted, in-compliance port master plan. Another provision of CS/CS/SB 1566 increases the DRI threshold for heavy mineral mines from 100 to 500 acres per year.

Environmental Compliance Costs of Private Utilities: CS/SB 1352 authorizes private water and sewer utilities to recover their environmental compliance costs from existing and future customers of the utility. This legislation resolves a conflict in existing law under which DEP and other environmental agencies require utilities to include features to ensure the environmental compliance of their facilities, but the Florida Public Service Commission (FPSC) prohibits recovery of those costs through the rates paid by the utility’s customers. CS/SB 1352 effectively overrules Florida Public Service Comm’n v. Florida Waterworks Ass’n, No. 98-1280 (Fla. 1^st DCA May 10, 1999) which upheld the 18 month margin reserve rule proposed by the FPSC.

Everglades Restudy: CS/CS/SB 1672 provides additional state oversight of the ongoing Comprehensive Review Study of the Central and Southern Florida Project (Restudy). Unlike HB 4141 which was approved by the Legislature in 1998 but vetoed by Governor Chiles, CS/CS/SB 1672 does not require specific legislative approval of the Restudy plan and associated costs prior to submittal of the plan to Congress. The bill designates the South Florida Water Management District as the local sponsor of the Restudy and prescribes the district’s role in that capacity. The bill specifically requires DEP to review and approve each component of the Restudy before it is submitted to Congress. The bill further requires that requests for additional funding to implement any component of the Restudy must be submitted by the district through DEP as part of the Governor’s budget request to the Legislature.

Fish and Wildlife Conservation Commission: CS/CS/SB 864 implements the constitutional amendment approved by the voters in November 1998 to merge the Game and Freshwater Fish Commission (GFC) with the Marine Fisheries Commission (MFC). The bill transfers all of the authority of the GFC and the MFC to the new Fish and Wildlife Conservation Commission (FWCC), effective July 1, 1999. Specified responsibilities of DEP are also transferred to the FWCC, including the Bureau of Law Enforcement, Division of Marine Resources, Bureau of Protected Species Management and Office of Fisheries Management and Assistance. The bill specifically provides that after these transfers, DEP will have no duties regarding boating safety; however, DEP will retain its responsibility to oversee the state parks through the Florida Park Patrol. DEP’s Bureau of Coastal and Aquatic Managed Areas is transferred to the Division of State Lands.

     The bill requires the FWCC to provide adequate due process to any party whose substantial interests are affected by the actions of the FWCC in implementing its constitutional authority. In this regard, the FWCC is encouraged to utilize the procedures in Chapter 120, F.S., when implementing its constitutional authority. The FWCC is required to use the procedures in Chapter 120, F.S., when implementing its statutory authority. The FWCC is required to report to the Legislature by December 1, 1999, on the due process procedures it has implemented with respect to its constitutional authority.

Front Porch Florida: CS/CS/SB 1566 creates the Office of Urban Opportunity as part of the Office of Tourism, Trade and Economic Development within the Governor’s office to implement the comprehensive urban-core redevelopment initiative known as "Front Porch Florida." The goal of that initiative is to empower urban-core residents to craft solutions to the unique challenge of each designated community. One element of the initiative is the Urban Homesteading Act (UHA) created in CS/CS/HB 17. The UHA is to be administered by DCA in conjunction with the Office of Urban Opportunity and will permit local governments to make foreclosed single-family housing properties available to qualified low-income buyers for purchase at a nominal rate.

Limerock Mining: HB 329 includes various mechanisms which will ensure that southeast Dade County will continue to be the limerock source for the state of Florida. The limerock industry is afforded certain regulatory approvals in exchange for a $0.05 per ton mitigation fee which will be used to offset the environmental impacts from the mining activity. The fee is collected by the Department of Revenue and is transferred to the South Florida Water Management District to be used to offset the adverse environmental impacts of limerock and sand mining activities. A formula is established for annual increases to the fee beginning January 1, 2001. The bill also extends the existence of the Miami-Dade County Lake Belt Plan Implementation Committee until January 1, 2002, and the Committee is directed to consider the feasibility of developing a common mitigation plan for non-rock mining activities within the area, including the imposition of a non-rock mining mitigation fee.

Mitigation of DRI Transportation Impacts: CS/CS/HB 17 authorizes "pipelining" of the transportation improvement costs of certain mixed-use DRIs. "Pipelining" allows DRI developers to satisfy transportation concurrency by payment of a proportionate share contribution for the development’s impacts to state and regional roadways in lieu of satisfying the traditional concurrency requirements in section 163.3180, F.S. The proportionate share contribution must be sufficient to fully pay for one or more required improvements to impacted state or regionally significant roadways.

     This pay-and-go alternative to concurrency was included in the recommendations of the 1998-99 Transportation and Land Use Study Commission as a means to encourage well-planned development, and it is similar to provisions of the DCA "pipelining" rule that was repealed in 1996 (former Rule 9J-2.0255, F.A.C.). The "pipelining" alternative only applies to DRIs that contain at least 3 different land uses, including at least 100 residential dwelling units, which are integrated and designed to encourage pedestrian and non-automotive modes of transportation. The bill becomes effective on July 1, 1999, and the "pipelining" alternative cannot be used by DRI developers unless and until the applicable local comprehensive plan is amended to include the alternative.

Motor Vehicle Inspection Program (MVIP): In response to a 1998 bill requiring legislative action on the MVIP during the 1999 Session and public opposition to the program, CS/SB 1270 significantly scales back the MVIP in the six Florida counties formerly classified as non-attainment areas under the federal ozone ambient air quality standard. As modified, the MVIP will include biennial testing (once every 2 years) rather than annual testing, but the fee will be increased from $10 to $19 per test. The bill exempts cars newer than 3 years old from the testing. CS/SB 1270 is similar to the "default" provision which was built into the 1998 legislation in the event that the Legislature failed to act in 1999. In light of the scaled-back version of the MVIP, it is possible that the U.S. Environmental Protection Agency (EPA) could determine that Florida is not in compliance with the Clean Air Act and force the state to enact more stringent air emission requirements on stationary sources. The bill authorizes the cancellation of the MVIP in the event that EPA adopts and Florida implements a statewide clean fuels requirement.

Northwest Florida Water Management District Permitting: The exemption from the environmental resource permit (ERP) program in the Northwest Florida Water Management District was scheduled to expire on July 1, 1999. CS/HB 2067 extends the expiration date another four years to July 1, 2003. Until that date, the existing management and storage of stormwater program will continue to apply in the district. DEP and the district are required to develop a plan for implementing the ERP program in the district, including the submittal of an interim report on the development of the plan to the Legislature and the Governor prior to March 1, 2001, and a final report on March 1, 2003. This timing is intended to allow for possible legislative action in the 2003 Regular Session to implement the ERP Program in the NWFWMD. The bill specifically provides that any jurisdictional determination issued by the district that is in effect on July 1, 1999, and for which a permit has been issued shall remain valid through July 1, 2002.

One-Stop Permitting: CS/CS/SB 662 amends the one-stop environmental permitting program established in 1997 to facilitate application over the Internet. No substantive changes were made to the program. The Department of Management Services is required to establish a one-stop permitting Internet site by January 1, 2000. The bill also encourages local governments to integrate their permitting programs with the state one-stop permitting program and authorizes grant awards of up to $50,000 for such Quick Permitting Counties.

Pasco County Wastewater Discharges into Coastal Waters: CS/SB 1424 prohibits any new wastewater discharges into coastal waters from Pasco County, and requires all existing discharges to be eliminated by July 1, 2004. DEP may grant exceptions to these requirements where no alternative method of discharge is available and specified conditions are met for the quality of the discharge.

Petroleum Contamination Clean-up: HB 2151 includes various "glitch" amendments to the petroleum contamination clean-up program administered by DEP. The bill establishes a pilot program for five sites which have been identified as low priority under the clean-up program and authorizes innovative technology to be used in cleaning up those sites. The bill also authorizes DEP to enter into site rehabilitation agreements (SRAs) under the clean-up program for sites contaminated by both existing and "new" (post-December 31, 1998) discharges. This provision is retroactive to January 1, 1999, and certain exclusions apply. For example, a SRA may not be entered into for "new" discharges on Superfund sites, or discharges that were intentional or caused by existing discharges which were not properly corrected. The bill also makes $5 million per year available for recovery of "free product" (e.g, gasoline floating on surface water) and in doing so may allow earlier clean-up of such sites notwithstanding the site’s ranking in the program. Finally, the bill provides for the continuation of the pre-approved advance clean-up portion of the program by eliminating the scheduled repeal date of October 1, 1999.

Prescribed Burning / Wildfire Prevention: CS/HB 1535 includes a variety of amendments in response to the wildfires which ravaged the state in the summer of 1998 and which engulfed the Everglades earlier this year. The bill directs the Department of Agriculture and Consumer Services to reorganize the Division of Forestry (Division), as necessary, to strengthen the Division’s role in preventing wildfires. The bill shifts the responsibility from the Governor to the Commissioner of Agriculture to issue a declaration of "severe drought" and defines the activities that are prohibited in areas subject to such a declaration. The bill also establishes guidelines and procedures for prescribed burning, including a requirement that a certified burn manager be on-site during the prescribed burn. In an effort to encourage prescribed burning, the bill eliminates the property owner’s liability for damage or injury arising out of the prescribed burn absent proof of gross negligence. The bill authorizes the Division to conduct prescribed burns on public or private lands to minimize the danger of wildfires. The landowner must be given notice and an opportunity to challenge the Division’s decision through the administrative process. The bill also strengthens criminal penalties for arson and other acts which may result in wildfires. Finally, the bill specifically authorizes any nonconforming use which was damaged or destroyed by the 1998 wildfires to be rebuilt notwithstanding any other provision of law.

Public School Concurrency: CS/SB 2380 makes several modest changes to the school concurrency legislation that was adopted in the 1998 Session in response to the recommendations of the 1997-98 Public Schools Construction Study Commission. The bill exempts the plan amendments which adopt the public school concurrency element as well as any related amendments to the capital improvements or intergovernmental coordination elements of the plan from the twice-a-year limitation on amendments to the local comprehensive plan. The bill specifically provides that collocating new schools with existing schools and locating new schools outside of the urban service area are permissible in certain narrowly-designed circumstances.

Septic Tanks: CS/SB 2380 precludes DCA from utilizing standards for on-site sewage disposal systems (i.e., septic tanks) more stringent than those adopted by the Department of Health when evaluating amendments to the local comprehensive plans, except in areas of critical state concern.

Total Maximum Daily Loads (TMDLs): Language authorizing the establishment and allocation of TMDLs was included in two bills approved by the Legislature, CS/HB 2067 and CS/SB 2282. The language in each bill is identical.

     CS/SB 2282, known as the "Florida Watershed Restoration Act", implements the directives of section 303(d) of the federal Clean Water Act to establish a TMDL program for state waters not meeting water quality standards. TMDL is a measure of the maximum amount of pollutant that a water body or segment can assimilate from all sources without exceeding water quality standards. DEP is the lead agency for implementing the TMDL program.

     The TMDL program is supplemental to the existing water quality programs implemented by DEP and the water management districts, and is intended to provide an equitable allocation of pollution loads amongst existing point and nonpoint sources and to supplement existing regulatory programs where necessary to achieve restoration of impaired water bodies.

     The bill requires DEP to submit prioritized lists of water bodies or segments which fail to meet water quality standards and for which TMDLs will be established. The lists are not subject to challenge under the Florida Administrative Procedure Act. DEP will conduct a TMDL assessment for the listed water bodies or segments in accordance with the prioritized lists. The bill establishes the methodology for the assessment, and requires the methodology to be adopted by rule. The bill specifies the methodology for allocating the TMDLs amongst existing point and nonpoint sources impacting the affected water body or course. In allocating the TMDLs, the bill requires DEP to consider factors including the cost-benefit of achieving the allocation and the environmental, economic, and technological feasibility of achieving the allocation.

     DEP is authorized to adopt interim measures and best management practices for nonpoint sources which are necessary to facilitate the restoration of the affected water body. DEP, in cooperation with the water management districts, is authorized to develop a procedure for pollutant trading amongst the point and nonpoint sources to a water body or segment. The procedure would include a mechanism for issuance and tracking of pollutant credits (presumably, similar to wetland mitigation banking program). Any pollutant trading program would require legislative ratification prior to becoming effective.

Urban Infill and Redevelopment: CS/CS/HB 17 includes a number of regulatory incentives to encourage urban infill and redevelopment, including revisions to the procedures by which local governments designate urban infill and redevelopment areas and increases in the DRI thresholds for office, commercial, and hotel projects within such areas. Language is also added to the State Comprehensive Plan (Chapter 187, F.S.) to encourage urban infill and redevelopment. A grant program is created to assist in implementing urban infill and redevelopment projects.

     In addition to the incentives, CS/CS/HB 17 includes a number of technical revisions to the procedures for municipal incorporation and annexation, as well as a procedure that counties and municipalities can use to resolve conflicts regarding the delivery and financing of local services (e.g., water and sewer). The bill also includes various revisions to Chapter 190, F.S., relating to Community Development Districts.

     The bill adopts several of the recommendations of the 1998-99 Transportation and Land Use Study Commission that are intended to reduce reliance on the single occupancy vehicle. For example, the bill authorizes local governments to establish multi-modal transportation districts as part of the local comprehensive plan. The district would include community design elements which encourage pedestrian transit as well as multi-modal level of service standards. Transportation impact fees within such districts could be reduced.

Zellwood Drainage and Water Control District: As part of the continuing Lake Apopka clean-up efforts, HB 1609 dissolves the Zellwood Drainage and Water Control District contingent upon the purchase of the remaining farmlands in the district by the St. Johns River Water Management District. Similar legislation was approved in 1998; however, the SJRWMD and the landowners were unable to agree upon the purchase price for the remaining lands. This year, the state budget includes approximately $11 million for the purchase of those lands.

Significant Bills that Failed to Pass

     Of the 14 issues identified in the ELULS Legislative Preview (March 1999), only four issues did not receive favorable legislative action. Three of those issues, Title V fees, ex parte communications and tax exemption on conservation lands did not receive any legislative attention, but may resurface during the 2000 Regular Session. Legislation restricting so-called SLAPP suits by governmental entities against private individuals received considerable legislative attention but ultimately failed to pass (CS/SB 64). Legislation on one other issue discussed in the ELULS Legislative Preview, environmental equity and justice, passed in a watered down form (see discussion of Community Environmental Health above), that the Center for Environmental Equity and Justice at Florida A&M did not receive the $1 million appropriation it requested.

     Other environmental or land use bills which failed to pass in the 1999 Session and which may resurface during the 2000 Regular Session include:

· SB 1804 which proposed various changes to the wetland mitigation banking program, such as requiring the use of a functional assessment methodology and "leveling of the playing field" for private mitigation banks by requiring permits for agency-operated mitigation banks

· HB 1765 which would have required DEP and the Department of Agriculture and Consumer Services to prepare a report to the Legislature prior to the 2000 Regular Session on a recommended procedure for the identification and clean-up of cattle dipping vats on public and private property

· CS/SB 1760 which would have required the Department of Health to study the effects on people of the aerial spraying of Malathion, which is used to combat the Mediterranean fruit fly which can infest fruit and vegetable crops, and which would have specified that aerial spraying should be used as a last resort and would have required reimbursement of expenses to persons who are forced to leave an area during spraying.

· HB 779 and CS/SB 1142 which would have provided $300,000 annually from the Solid Waste Management Trust Fund to Southern Waste Information Exchange, Inc., to assist small businesses and industries in complying with solid and hazardous waste management regulations and meeting the State’s and recycling goals.

· HM 493, a memorial to Congress and the President, expressing Florida’s support for the use of Florida’s wetland delineation methodology by the U.S. Army Corps of Engineers in lieu of the federal methodology for wetland delineation.

· SB 188 and HB 149 which would have replaced the Mockingbird with the Scrub Jay as the official state bird and which might have had the effect of further restricting development impacts to Scrub Jay habitat.

· Language which would have established guidelines and procedures for siting hazardous waste transfer facilities.

Conclusion

     Overall, the 1999 Session was relatively uneventful in the environmental and land use arena. Given the ebb and flow of the legislative process, it is likely that the 2000 Session will see more environmental issues at the forefront.

  Kent Wetherell is an associate with Hopping Green Sams & Smith, P.A., in Tallahassee where his practice focuses on administrative law, land use law and legislative lobbying. He is the 1998-99 chairman of the ELULS Legislative Committee. Mr. Wetherell would like to acknowledge the contributions of Wade Hopping, Frank Matthews and Mike Petrovich to this article. Copies of the bills discussed in this article are available on the Internet at the Legislature’s website –