United States: 2014 Legislative Update: Environment, Growth Management And Water

Lawrence N. "Larry" Curtin and Lawrence E. Sellers are Partners in our Tallahassee office, Roger W. Sims is a Partner and Clay Henderson is senior counsel in our Orlando office.



CS/CS/CS/HB 325 amends statutory provisions relating to the brownfield program and modifies the procedures for establishing a brownfield area. The bill also authorizes the local government designating a brownfield area to use a term other than "brownfield area" for the designated area. The bill expands the liability protection provided to any person, his or her successors and any assignees executing and implementing a successful completion of a Brownfield Site Rehabilitation Agreement. This action effectively relieves them of liability for claims of property damages, including diminished value of real property or improvements; lost or delayed rent, sale, or use of real property or improvements; or stigma to the real property or improvements caused by contamination addressed by a brownfield site rehabilitation agreement. This expanded protection applies to causes of action accruing on or after July 1, 2014 and does not apply to persons discharging contamination on the property, those committing fraud related to completion of site rehabilitation or those exacerbating the contamination of property subject to a brownfield site rehabilitation agreement in violation of applicable laws which causes property damage.

The Act became effective July 1, 2014; Chapter No. 2014-114

Permit Extensions

CS/HB 7023 covers issues predominantly related to economic development. It also continues legislation that began in 2009 to extend and renew permit extensions from previous years. The bill extends the expiration date by two years of any Environmental Resource Permit with an expiration date from January 1, 2014, through January 1, 2016, and extends local government issued development orders or building permits, including certificates of levels of service. This is in addition to any existing permit extensions, provided that the total permit extension time does not exceed a total of four years. The authorizing agency must be notified of the request for extension in writing no later than December 31, 2014.

The Act became effective July 1, 2014; Chapter No. 2014-218

Petroleum Site Cleanup, Coastal Construction and Aquatic Preserves

CS/HB 7093 originally addressed only the state petroleum site rehabilitation program, but amendments adopted on the last day of the session – including title amendments – expanded the scope to include provisions addressing coastal construction and aquatic preserves. The bill repeals the petroleum site pre-approval program and requires all site rehabilitation work to be competitively procured. The reimbursement program, which has been obsolete since 1996, is repealed, and the bill renames the pre-approved advanced cleanup program as the Advanced Cleanup Program.

For coastal construction, the bill expands activities that qualify for an area-wide permit issued by the Florida Department of Environmental Protection (FDEP) to include minor structures. The bill requires FDEP to adopt rules establishing criteria and guidelines for area-wide permit applicants as well as general permit applicants. The bill authorizes general permits for dune restoration, swimming pools associated with single-family, habitable structures meeting certain requirements and for minor reconstruction for existing coastal armoring structures.

The provisions relating to aquatic preserves authorize FDEP to grant concessions for the accommodation of visitors if the concession does not interfere with access to the lands and is compatible with the preserves management plan. Beginning after May 1, 2014, new concession agreements for the accommodation of visitors in a state park that provides beach access and contains less than 7,000 linear feet of shoreline are prohibited if the type of concession is available within 1,500 feet of the park's boundaries. Concession agreements in place on or before May 1, 2014, are not affected.

The Act became effective July 1, 2014; Chapter No. 2014-151

Ratification of Department of Environmental Protection Rules

Agency rules that have been filed for adoption and that have an estimated impact detailed in the Statement of Estimated Regulatory Costs in excess of $1 million over a five-year period are required to be ratified by the legislature prior to becoming effective. HB 7089 ratifies two rules related to the petroleum clean-up program administered by FDEP. Rule 62-772.300, Florida Administrative Code (FAC), establishes minimum qualifications for contractors performing petroleum contamination rehabilitation activities for the program. Rule 62-772.400 establishes the process FDEP will utilize for competitive procurement of contractors. The rules have estimated recurring costs of more than $15 million and $41.2 million, respectively.

The Act became effective June 13, 2014; Chapter 2014-149

Carbon Dioxide Emissions Guidelines

In June of 2014, the United States Environmental Protection Agency (EPA) is scheduled to issue guidelines for establishing emission limitations for existing electric power plants pursuant to Section 111(d) of the Clean Air Act. CS/SM 1174 is a Senate Memorial urging Congress to direct EPA to rely on state regulators to develop performance standards for carbon dioxide emissions, taking into account the unique policies, energy needs, resource mix and economic priorities of individual states. It also requests that Florida be permitted to establish less stringent performance standards or longer compliance schedules for fossil fuel electric generating units and asks for maximum flexibility to implement these new performance standards.

Growth Management: Aggregation of Developments

CS/HB 7023 predominantly covers issues related to economic development. It also includes a provision that exempts developments that qualify for an exemption as a dense urban land area according to existing law from aggregation requirements. As a result, two or more developments qualifying for dense urban land area and not required to undergo the DRI process are prohibited from being aggregated and treated as a single development.

The Act became effective on July 1, 2014; Chapter No. 2014-218

Baby Hometown: Local Referenda

SB 374 is yet another effort to "fix" the restrictions on local initiatives and referenda. In particular, it addresses an issue in the Town of Longboat Key, which prohibits the increase in density limitations in its comprehensive plan without a referendum. Currently, only those local initiatives and referenda that affect five parcels or more are allowed, and this bill eliminates the references to five parcels or more, allowing the Town to hold a referendum.

The Act became effective on June 20, 2014; Chapter No. 2014-178

Fuel Terminals

CS/CS/SB 1070 declares certain fuel terminals a permitted and allowable use under any local comprehensive plan, land use map, zoning district or land development regulation.

The Act became effective on July 1, 2014; Chapter No. 2014-093

Reclaimed Water

CS/CS/SB 536 requires the FDEP to conduct a comprehensive study and submit a report on the expansion of the beneficial use of reclaimed water, stormwater and excess surface water in the state. The FDEP is further directed to coordinate with various stakeholders. The report must, among other things, identify measures that would lead to greater efficient use of reclaimed water. Permit incentives, including extended terms, must also be addressed.

The report must be submitted to the Governor, the President of the Senate and the Speaker of the House of Representatives no later than December 1, 2015.

The Act became effective on July 1, 2014; Chapter No. 2014-079

Lower Santa Fe and Ichetucknee MFLs

On March 7, 2014, the Department of Environmental Protection proposed rules 62-42.100 and 62-42.200, establishing the scope and definitions for minimum flows and levels (MFLs) adopted by the department, and rule 62-42.300, FAC, establishing MFLs for the Lower Santa Fe and Ichetucknee Rivers and associated priority springs. These rules were needed as soon as possible so that associated flow protection rules could be implemented in a timely fashion. However, the Florida Administrative Procedure Act (APA) requires legislative ratification pursuant to s. 120.541(3), and a challenge filed in the Division of Administrative Hearings delayed the adoption of rule 62-42.300, making it unavailable for ratification during the 2014 Regular Session. HB 7171 exempts rule 62-42.300 from ratification under s. 120.541(3), Florida Statutes.

The Act became effective on June 13, 2014; Chapter No. 2014-155

Dispersed Water Storage Programs

Some water management districts have established dispersed water storage programs. Under such programs, a private landowner allows agricultural land to be used by the district to store water during wet periods. HB 7091 provides that lands already classified as agricultural that participate in a dispersed water storage program may continue to be classified as agricultural as long as the lands are included in the program or a successor program.

The Act became effective on July 1, 2014; Chapter No. 2014-150

Lobbying Water Management Districts

CS/CS/CS/SB 846 creates a new section 112.3261 that requires registration and reporting for lobbying before water management districts. The requirements are similar to the existing program for executive branch lobbying.

The Act became effective on July 1, 2014; Chapter 2014-183

Bills That Did Not Pass

Springs: Restoration of Florida's springs received much attention during the Legislative Session. In response to a growing concern about the water quality in Florida's springs, Governor Rick Scott proposed $55 million in his budget for springs-related protection and restoration. Senators Charlie Dean and David Simmons sponsored SB 1576, the Florida Springs and Aquifer Protection Act, which would have focused FDEP's attention on springshed protection and springs clean up. The bill would have required comprehensive studies on nutrient reduction, establishment of minimum flows and levels for the springs, advanced wastewater treatment and the removal of polluting septic tanks. The bill also would have dedicated a portion of the documentary stamp tax (up to $350 million) for springs clean up. The bill that passed the Senate on a 38-0 vote was stripped of the documentary stamp dedication but still contained a $30 million appropriation for clean up. The bill was not heard in the House and died in messages. Nevertheless, the Appropriations Bill (HB 5001) contains three provisions related to springs funding: $5 million for Best Management Practices implementation and irrigation system efficiency conversions in freshwater springs recharge areas; $1.7 million for implementation of total maximum daily loads (TMDLs) for springs; and $25 million to FDEP for prioritization of springs projects "to protect the quality and quantity of water that flows from springs."

Environmental Regulation: CS/HB 703 and SB 1464 were this year's version of the regulatory reform bills that have been introduced annually over the last several sessions. The bills are generally aimed at reducing red tape and improving the atmosphere for regulated interests to facilitate job creation and economic development. This year's bills included provisions: restricting counties' authority to enforce wetlands, springs protection and stormwater ordinances; providing that comprehensive plan amendments are to be adopted by simple majority vote, thereby prohibiting super majority voting requirements; and stating that a local government may not rescind a plan amendment that authorizes land uses other than agricultural use if the land continues to be used primarily for bona fide agricultural purposes and qualifies for an agricultural classification under s. 193.461. In prior years, the bills have been pared down as a result of stakeholder involvement. This year, the bills did not pass, likely as a result of the 2014 Governor's race and the desire to avoid controversy. Since Representative Jimmy Patronis, the primary driving force behind these bills, is retiring from the legislature, it is unclear whether regulatory reform efforts will continue to be introduced. While these measures were not enacted this year, one provision providing yet another two-year extension for certain permits was amended on to HB 7023.

Hydraulic Fracturing: HB 71 would have directed FDEP to establish an on-line hydraulic fracturing chemical registry disclosing the total volume of water used and the chemical ingredients for each well on which hydraulic fracturing treatments are performed. SB 158 was tied to the passage of HB 71 and creates a public records exemption for trade secrets related to hydraulic fracturing treatments provided to FDEP. Procedures for requesting and maintaining confidentiality are provided in the bill. Neither bill passed this session, but the hydraulic fracturing area continues to be controversial and is likely to reappear in the future.

Chemicals of Concern: HB 991 and SB 1180 would have required the Department of Health, in consultation with other state agencies, to generate a list of chemicals of high concern, predominantly those known to harm pregnant women or children or to contribute to serious diseases such as cancer. The bills provide procedures for the designation of the chemicals and authorize the Department of Health to participate in an interstate clearing house regarding the use of chemicals in consumer products.

Septage Land Ban Extension: HB 1113 and CS/SB 1160 would have delayed the effective date of the prohibition against the land application of septage from onsite sewage treatment and disposal systems and required the DEP to examine and report on potential options for safely and appropriately disposing or reusing septage.

Nature Coast Aquatic Preserve: SB 1094 and HB 1123 would have created the Nature Coast Aquatic Preserve in state-owned submerged lands west of U.S. Highway 19 in Pasco, Citrus and Hernando counties. The new preserve would have been subject to restrictions and development of these lands.

Concurrency/Impact Fees: HB 7023, as initially filed, would have exempted certain new development from having to comply with impact fee, concurrency or proportionate share requirements for transportation impacts. Although the bill passed, it did not contain these provisions.

Preemption of local regulation of springs, wetlands or stormwater: HB 703 would have preempted local authority in agricultural areas from passing ordinances related to springs, wetlands or stormwater runoff standards.

Super Majority Voting: HB 703 also would have also restricted any supermajority requirements for a comprehensive plan amendment.

DRIs in DULAs: SB 372 would have revised the exemption from Development of Regional Impact (DRI) review by reducing the minimum population and density requirements for Dense Urban Land Areas (DULAs), effectively adding seven counties and 20 cities to the areas where projects are not subject to DRI review. The seven counties are Brevard, Escambia, Lee, Manatee, Pasco, Sarasota and Volusia.

Development Exactions: HB 1077 and SB 1310 would have prohibited local governments from enacting regulations more restrictive than state or federal law.

Private Property Rights: HB 395 and SB 1314 would have required local governments to add a new element to their comprehensive plan known as the "private property rights" element.

Long-Term CUPs: HB 703 also would have provided 30-year to 50-year consumptive use permits (CUPs) for water.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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