United States: 2015 Florida Legislative Update: Environment, Growth Management And Water

Lawrence Curtin and Lawrence Sellers Jr. are Partners in Holland & Knight's Tallahassee office
Roger W. Sims is a Partner and Clay Henderson is Of Counsel in Holland & Knight's Orlando office
Stacy Watson May is Of Counsel in Holland & Knight's Jacksonville office

The Florida Legislature concluded its 2015 regular session on May 1, 2015. However, for all practical purposes, the session ended on April 28, when the House unexpectedly adjourned three days early after it became clear the two chambers could not agree on a budget. The Legislature will return for a special session on June 1. The following is a summary of what has happened so far:

BILLS THAT PASSED

Growth Management

CS/CS/SB 1216 relating to community development was the major growth management bill to be passed by both houses and approved by the Governor. The bill makes a number of changes to the growth management process – primarily as it affects large community developments such as sector plans and developments of regional impact (DRIs).

Sector Plans

For sector plans, the bill clarifies that amendments to master plans and detailed special area plans shall be processed through the requirements for coordinated state review. It further clarifies that agricultural or silvicultural uses within a sector plan may be authorized if consistent with the long-term master plan. Sector plans require provisions for conservation of sensitive areas; the bill provides that conservation easements may be used for mitigation and defined through digital photography.

RPCs

The Legislature continued its trend of reducing responsibilities of regional planning councils (RPCs). The bill eliminates the Withlacoochee Regional Planning Council and essentially removes the role of regional planning councils from the DRI process.

DRIs

To that end, the bill subjects DRIs to the state coordinated review process so that new DRIs are not required to have specific review by the regional planning council.

Other

The bill also addresses a number of other growth management issues. It eliminates some findings regarding compatibility with adjacent military installations and exempts some small local governments that use less than 1 percent of a public water utility's total permitted allocation from having to amend its comprehensive plan in response to an updated regional water supply plan. The bill also creates a 10-year "connected city corridor" program for Pasco County that makes it easier to tie mixed-use developments to transportation corridors. The bill also adds "sinkholes" to a list of characteristics of blighted areas for the purposes of community redevelopment areas.

Left Out

There were several controversial provisions of the bill that did not survive. One provision would have required local governments to add a private property rights element to their comprehensive plan. A second would have restricted local control of "constrained agricultural lands," and a third would have limited certain concurrency fees.

The act became effective on May 15, 2015; Chapter No. 2015-30.

Property Rights

CS/HB 383 makes clarifications to the Bert J. Harris, Jr., Private Property Rights Protection Act and creates a new cause of action independent of the act for property owners subject to unlawful exactions of the type dealt with in 2013 by the United States Supreme Court in Koontz v. St. Johns River Water Management District. Under the bill, a property owner is required to provide advance notice of the intent to file a suit seeking damages for a prohibited exaction and provide an estimate of the owner's damages. The governmental entity must then justify the exaction as proportionate or offer to remove or reduce the exaction. At trial, the governmental entity will have the burden of proving that the exaction has the requisite nexus to a legitimate public purpose and is proportionate. The property owner will have the burden of proving damages. Attorneys' fees and costs may be awarded to the governmental entity, but the court is required to award attorneys' fees and costs to the property owner if it is determined that the exaction has no nexus to a legitimate public purpose. The bill clarifies that it is applicable only to action taken directly on the property owner's land and not activities that are authorized on adjoining or adjacent properties (essentially codifying the majority opinion in City of Jacksonville v. Smith).

Unless vetoed, the act becomes effective on Oct. 1, 2015.

Ratification of DEP C&D Liner Rule

HB 7083 ratifies the Florida Department of Environmental Protection (DEP) rules requiring liners and leachate collection systems at construction and demolition debris disposal facilities.

Unless vetoed, the act will be effective upon becoming law.

Ratification of MFLs

HB 7081 was adopted in order to expedite the effective date of minimum flows and levels (MFLs) for the Lower Santa Fe and Ichetucknee Rivers and associated priority springs. The St. Johns River Water Management District asked DEP to adopt a rule implementing the MFLs due to cross-basin impacts originating outside the district. DEP also proposed regulatory flow recovery provisions since the current flow data showed significant declines from historic levels. A challenge to the DEP-proposed rule was filed with the Division of Administrative Hearings, thus delaying the effective date of the rule. The Legislature passed HB 7081 to allow prompt implementation.

Unless vetoed, the act will be effective upon becoming law.

SLAPP

CS/SB 1312 amends provisions relating to strategic lawsuits against public participation (often referred to as "SLAPP suits") thought to be brought to silence critics, particularly in the environmental arena. Under existing law, only governmental entities are prohibited from filing such suits to retaliate against persons or groups exercising rights to participate in government activities. The bill extends the applicability of the anti-SLAPP statute to suits filed by anyone – not just governmental entities. The bill protects free speech in connection with public issues in two categories: (1) speech made before a governmental entity in connection with an issue that the governmental entity is considering or has under review; and (2) speech in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report or similar works. The second category does not require any connection to a governmental proceeding. The bill provides for expeditious resolution of a suit that is claimed to be a SLAPP suit.

The act becomes effective on July 1, 2015. Chapter No. 2015-70.

Surveillance by a Drone

CS/CS/SB 766 prohibits any person from using a drone to capture an image of privately owned real property or of the owner, tenant, occupant, invitee or licensee of such property with the intent to conduct surveillance without his or her written consent if a reasonable expectation of privacy exists. The bill authorizes the use of a drone by a person or a business licensed by the state, or a contractor thereof as long as such use is to perform reasonable tasks within the scope of practice. Such licensed professions include real estate brokers, real estate appraisers, land surveyors and construction contractors. The bill allows property appraisers to use drones solely for assessing property for ad valorem taxes. The bill also allows the capturing of images by or for a utility for the operation and maintenance of its facilities, the inspection related to construction of its facilities, the assessment of vegetation growth on rights-of-way and conducting environmental monitoring. In addition, the bill allows aerial mapping and cargo delivery if the person is operating in compliance with FAA regulations.

The act becomes effective on July 1, 2015. Chapter No. 2015-26.

BILLS THAT HAVE YET TO PASS

Agritourism

SB 594 would have prohibited local government enforcement (and not merely adoption) of an ordinance, regulation or rule that would have placed limits on agritourism. The bill died on the Senate calendar.

Amendment 1 Funding

A major priority during the 2015 Regular Legislative Session was the implementation of Amendment 1. The Water and Land Conservation amendment was an initiative ratified by 75 percent of the voters during the 2014 general election. By its terms, the initiative dedicates one-third of the existing documentary stamp tax revenues to the Land Acquisition Trust Fund to acquire, restore, improve and manage conservation lands for a term of 20 years. The Revenue Estimating Conference forecast that the amendment will raise $750 million for fiscal year 2015-2016 and in excess of $20 billion for the life of the amendment. Although the initiative sponsors stated that no implementing legislation other than an appropriation was required, several bills were introduced in both houses relating to the implementation of what is now Article 10, Section 28 of the Florida Constitution. None of the implementing bills made their way through the Legislature during the regular session, but several are within the call for the special session because they have budgetary implications.

SBs 576, 578, 580, 584 and 586 were substantive implementation bills for Amendment 1. Each bill had a House counterpart and passed its respective house. They were each to be referred to a conference committee, but no conference committees were appointed. SB 584 was a major revision of the Land Acquisition Trust Fund (LATF) and allocations within the documentary stamp tax. The other bills were fairly minor in that they established new trust funds (known as "baby LATFs") within different departments to be able to spend Amendment 1 revenues. Separate bills are required by the Florida Constitution to establish new trust funds or retire existing trust funds. These bills would have repealed existing documentary stamp dedications for land management to be replaced with the new constitutionally required dedication. These bills also would have repurposed the Land Acquisition Trust Fund to give the Legislature maximum flexibility for appropriations under the amendment. Both houses also passed their versions of a water bill (SB 918 and HB 7003) that would have authorized Amendment 1 appropriations for various water resource development projects and springs protection.

The Senate, House and the Governor are far apart on appropriations for Amendment 1. For land conservation, the Governor recommended $100 million, while the House approved $8 million and the Senate approved $15 million. All three propose to use a significant portion of Amendment 1 revenues to fund existing programs. The Governor recommended $156 million, while the Senate and House approved $230 million and $236 million, respectively, primarily for salaries for existing state employees. Bonding is also an area of disagreement. The House bill includes $200 million for bonding water projects, while the Senate and Governor oppose new bonding. All three propose paying $150 million of existing debt service through Amendment 1. Some of the line items in the appropriations bill reference SB 918 and are dependent on passage of the implementation bills.

The call for the special session in June includes the budget, along with SBs 576, 578, 580 and 584. Look for some provisions of SB 586 and SB 918 to be offered as amendments to SB 584.

Contaminated Sites

HB 841/SB 1302 would have provided clarification for the use of risk-based corrective action (RBCA) and the authorization of alternative cleanup target levels without requiring institutional controls. The bills would have expanded the definition of "background concentration" to include some anthropogenic sources. The bills would have created a mechanism for approving long-term natural attenuation for more than five years. The bills also would have revised the cleanup target levels for surface water as long as groundwater contaminants did not cause water quality exceedances in the surface water. Both bills died on the House calendar, but look for these to be reintroduced in the 2016 legislative session.

Environmental Control

HB 653 and SB 714 started out as the annual "environmental train," addressing a potpourri of environmental issues that were generally not controversial. These included various organizational changes within the DEP. The bills would have: prohibited permitting agencies from modifying permitted water allocations during the term of the permit under certain conditions; prohibited water management districts from reducing permitted allocations during the term of the consumptive use permit for agricultural irrigation under certain conditions; directed the water management districts to adopt rules providing water conservation incentives, including permit extensions; and required the water management districts to promote expanded cost-sharing criteria for additional water conservation practices. In addition, the bills would have provided that the reclamation timing requirements for phosphate mines and the required financial assurance do not apply to constructed clay-settling areas where their beneficial use has been extended. Finally, the bills included several provisions dealing with solid waste, including: (1) the creation of a solid waste landfill closure account to provide funding for the closing and long-term care of solid waste management facilities; and (2) providing that for local flow control ordinances, resource recovery facility does not include a landfill gas-to-gas energy system or facility. The House bill was amended on the floor to include most of the House water bill, HB 7003, and then died in the Senate without having been considered.

Land Application of Septage

Effective Jan. 1, 2016, the land application of septage is prohibited. SB 642 and HB 687 would have repealed the ban, and other proposals would have extended the date. None of these measures were enacted; so the ban on the land application septage will take effect on Jan. 1, 2016, as scheduled.

Two-Year Extension of Certain Permits

HB 7067, a comprehensive economic development measure, included a provision that would have provided for yet another two-year extension of certain environmental resource permits. The measure passed the House but died in the Senate.

Oil and Gas Regulation

The Legislature attempted to deal with hydraulic fracturing during the regular session, but the bills fell victim to the early adjournment by the House and the impasse over the budget. HB 1205 and SB 1468 would have preempted permitting of the so-called high-pressure well stimulation activities and would have established that these activities are subject to the same permitting requirements that apply to drilling an oil and gas well. The bills would have required DEP to conduct a study on high-pressure well stimulation and required the agency to designate the national chemical registry as the state's registry for disclosure of chemicals utilized in the process. HB 1209 and SB 1582 would have provided a limited public records exemption for the information required to be submitted on chemical utilization with exceptions. SB 166 and HB 169 would have prohibited hydraulic fracturing in Florida. This issue is likely to return for the 2016 Session beginning in January.

Petroleum Restoration

SB 314/HB 733 would have expanded the Abandoned Tank Restoration Program and increased the number of sites eligible for state-funded remediation, including sites where a property owner knew of petroleum contamination at the time of purchase. The bills would have changed the name from Low Score Site Initiative (LSSI) to Low-Risk Site Initiative (LRSI). The bills also would have removed certain criteria and increased the funding limit and time frames in which the LRSI assessment and groundwater monitoring must be completed. The bills also would have increased the annual funding allocation for the Advanced Cleanup Program from $15 million to $25 million and allowed a property owner or responsible party to enter into a voluntary cost-sharing agreement to bundle the assessment and remediation of multiple sites. Both bills died on the Senate calendar.

Private Property Rights Elements

HB 551/SB 1424 would have required local governments to include private property rights protections within their comprehensive plans. The property rights element would have required establishment of principles, guidelines, standards and strategies to guide local government decisions on proposed developments. The bills died in committee. There was also an unsuccessful effort to add this language to the growth management bill.

Water/Policy/Springs Protection

SB 918/HB 7003/HB 653 addressed water policy generally and particularly springs protection and rehabilitation. The Outstanding Florida Springs established by SB 918 included first magnitude springs and a number of named springs. The House version designated Priority Florida Springs to include first and second magnitude springs, though it does not name any springs. Both bills addressed the integrated nature of springs and aquifer systems, and various provisions were identified for protecting and restoring impaired springs. These provisions included use of MFLs and basin management action plans, particularly for "priority focus areas" within spring sheds where the aquifer is most vulnerable to pollution from the surface or shallow water table conditions. Both bills directed DEP to investigate designated springs and develop strategies to rehabilitate or protect the springs and implement the statute. The bills also addressed the Everglades and related river systems, employing best management practices and basin management action plans. Finally, the Senate bill codified the Central Florida Water Initiative objectives of protecting stressed groundwater systems and developing alternative water supplies.

*   *   *

The Legislature will return for a special session scheduled for June 1-20, 2015, primarily to enact a state budget – the only bill the Legislature is required to pass.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions