April 02, 2020
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Senate Bill 0270

Senate Bill sb0270

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    Florida Senate - 2002                                   SB 270

    By Senator King





    8-189B-02

  1                      A bill to be entitled

  2         An act relating to environmental protection;

  3         amending s. 373.114, F.S.; providing that water

  4         management district orders resulting from

  5         certain evidentiary hearings are not subject to

  6         specified review; amending s. 403.412, F.S.,

  7         the "Environmental Protection Act of 1971";

  8         revising requirements for initiating specified

  9         proceedings under that act; providing an

10         effective date.

11

12  Be It Enacted by the Legislature of the State of Florida:

13

14         Section 1.  Subsection (1) of section 373.114, Florida

15  Statutes, is amended to read:

16         373.114  Land and Water Adjudicatory Commission; review

17  of district rules and orders; department review of district

18  rules.--

19         (1)  Except as provided in subsection (2), the Governor

20  and Cabinet, sitting as the Land and Water Adjudicatory

21  Commission, have the exclusive authority to review any order

22  or rule of a water management district, other than a rule

23  relating to an internal procedure of the district or an order

24  resulting from an evidentiary hearing held under s. 120.569 or

25  s. 120.57 or a rule that has been adopted after issuance of an

26  order resulting from an evidentiary hearing held under s.

27  120.56, to ensure consistency with the provisions and purposes

28  of this chapter. Subsequent to the legislative ratification of

29  the delineation methodology pursuant to s. 373.421(1), this

30  subsection also shall apply to an order of the department, or

31  a local government exercising delegated authority, pursuant to

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1  ss. 373.403-373.443, except an order pertaining to activities

  2  or operations subject to conceptual plan approval pursuant to

  3  chapter 378 or an order resulting from an evidentiary hearing

  4  held under s. 120.569 or s. 120.57.

  5         (a)  Such review may be initiated by the department or

  6  by a party to the proceeding below by filing a request for

  7  review with the Land and Water Adjudicatory Commission and

  8  serving a copy on the department and on any person named in

  9  the rule or order within 20 days after adoption of the rule or

10  the rendering of the order. For the purposes of this section,

11  the term "party" means any affected person who submitted oral

12  or written testimony, sworn or unsworn, of a substantive

13  nature which stated with particularity objections to or

14  support for the rule or order that are cognizable within the

15  scope of the provisions and purposes of this chapter, or any

16  person who participated as a party in a proceeding instituted

17  pursuant to chapter 120.  In order for the commission to

18  accept a request for review initiated by a party below, with

19  regard to a specific order, four members of the commission

20  must determine on the basis of the record below that the

21  activity authorized by the order would substantially affect

22  natural resources of statewide or regional significance.

23  Review of an order may also be accepted if four members of the

24  commission determine that the order raises issues of policy,

25  statutory interpretation, or rule interpretation that have

26  regional or statewide significance from the standpoint of

27  agency precedent. The party requesting the commission to

28  review an order must allege with particularity, and the

29  commission must find, that:

30         1.  The order is in conflict with statutory

31  requirements; or

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1         2.  The order is in conflict with the requirements of a

  2  duly adopted rule.

  3         (b)  Review by the Land and Water Adjudicatory

  4  Commission is appellate in nature and shall be based solely on

  5  the record below.  If there was no evidentiary administrative

  6  proceeding below, the facts contained in the proposed agency

  7  action, including any technical staff report, shall be deemed

  8  undisputed.  The matter shall be heard by the commission not

  9  more than 60 days after receipt of the request for review,

10  unless waived by the parties.

11         (c)  If the Land and Water Adjudicatory Commission

12  determines that a rule of a water management district is not

13  consistent with the provisions and purposes of this chapter,

14  it may require the water management district to initiate

15  rulemaking proceedings to amend or repeal the rule.  If the

16  commission determines that an order is not consistent with the

17  provisions and purposes of this chapter, the commission may

18  rescind or modify the order or remand the proceeding for

19  further action consistent with the order of the Land and Water

20  Adjudicatory Commission only if the commission determines that

21  the activity authorized by the order would substantially

22  affect natural resources of statewide or regional

23  significance.  In the case of an order which does not itself

24  substantially affect natural resources of statewide or

25  regional significance, but which raises issues of policy that

26  have regional or statewide significance from the standpoint of

27  agency precedent, the commission may direct the district to

28  initiate rulemaking to amend its rules to assure that future

29  actions are consistent with the provisions and purposes of

30  this chapter without modifying the order.

31

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1         (d)  In a review under this section of a construction

  2  permit issued pursuant to a conceptual permit under part IV,

  3  which conceptual permit is issued after July 1, 1993, a party

  4  to the review may not raise an issue which was or could have

  5  been raised in a review of the conceptual permit under this

  6  section.

  7         (e)  A request for review under this section shall not

  8  be a precondition to the seeking of judicial review pursuant

  9  to s. 120.68 or the seeking of an administrative determination

10  of rule validity pursuant to s. 120.56.

11         (f)  The Florida Land and Water Adjudicatory Commission

12  may adopt rules to set forth its procedures for reviewing an

13  order or rule of a water management district consistent with

14  the provisions of this section.

15         (g)  For the purpose of this section, it shall be

16  presumed that activity authorized by an order will not affect

17  resources of statewide or regional significance if the

18  proposed activity:

19         1.  Occupies an area less than 10 acres in size, and

20         2.  Does not create impervious surfaces greater than 2

21  acres in size, and

22         3.  Is not located within 550 feet of the shoreline of

23  a named body of water designated as Outstanding Florida

24  Waters, and

25         4.  Does not adversely affect threatened or endangered

26  species.

27

28  This paragraph shall not operate to hold that any activity

29  that exceeds these limits is presumed to affect resources of

30  statewide or regional significance.  The determination of

31  whether an activity will substantially affect resources of

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1  statewide or regional significance shall be made on a

  2  case-by-case basis, based upon facts contained in the record

  3  below.

  4         Section 2.  Subsections (2) and (5) of section 403.412,

  5  Florida Statutes, are amended, and subsection (7) is added to

  6  that section, to read:

  7         403.412  Environmental Protection Act.--

  8         (2)(a)  The Department of Legal Affairs, any political

  9  subdivision or municipality of the state, or a citizen of the

10  state may maintain an action for injunctive relief against:

11         1.  Any governmental agency or authority charged by law

12  with the duty of enforcing laws, rules, and regulations for

13  the protection of the air, water, and other natural resources

14  of the state to compel such governmental authority to enforce

15  such laws, rules, and regulations;

16         2.  Any person, natural or corporate, or governmental

17  agency or authority to enjoin such persons, agencies, or

18  authorities from violating any laws, rules, or regulations for

19  the protection of the air, water, and other natural resources

20  of the state.

21         (b)  In any suit under paragraph (a), the Department of

22  Legal Affairs may intervene to represent the interests of the

23  state.

24         (c)  As a condition precedent to the institution of an

25  action pursuant to paragraph (a), the complaining party shall

26  first file with the governmental agencies or authorities

27  charged by law with the duty of regulating or prohibiting the

28  act or conduct complained of a verified complaint setting

29  forth the facts upon which the complaint is based and the

30  manner in which the complaining party is affected. Upon

31  receipt of a complaint, the governmental agency or authority

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1  shall forthwith transmit, by registered or certified mail, a

  2  copy of such complaint to those parties charged with violating

  3  the laws, rules, and regulations for the protection of the

  4  air, water, and other natural resources of the state.  The

  5  agency receiving such complaint shall have 30 days after the

  6  receipt thereof within which to take appropriate action. If

  7  such action is not taken within the time prescribed, the

  8  complaining party may institute the judicial proceedings

  9  authorized in paragraph (a).  However, failure to comply with

10  this subsection shall not bar an action for a temporary

11  restraining order to prevent immediate and irreparable harm

12  from the conduct or activity complained of.

13         (d)  In any action instituted pursuant to paragraph

14  (a), the court, in the interest of justice, may add as party

15  defendant any governmental agency or authority charged with

16  the duty of enforcing the applicable laws, rules, and

17  regulations for the protection of the air, water, and other

18  natural resources of the state.

19         (e)  No action pursuant to this section may be

20  maintained if the person (natural or corporate) or

21  governmental agency or authority charged with pollution,

22  impairment, or destruction of the air, water, or other natural

23  resources of the state is acting or conducting operations

24  pursuant to currently valid permit or certificate covering

25  such operations, issued by the appropriate governmental

26  authorities or agencies, and is complying with the

27  requirements of said permits or certificates.

28         (f)  In any action instituted pursuant to this section,

29  other than an action involving a state NPDES permit authorized

30  under s. 403.0885, the prevailing party or parties shall be

31  entitled to costs and attorney's fees. Any award of attorney's

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1  fees in an action involving such a state NPDES permit shall be

  2  discretionary with the court.  If the court has reasonable

  3  ground to doubt the solvency of the plaintiff or the

  4  plaintiff's ability to pay any cost or judgment which might be

  5  rendered against him or her in an action brought under this

  6  section, the court may order the plaintiff to post a good and

  7  sufficient surety bond or cash.

  8         (5)  In any administrative, licensing, or other

  9  proceedings authorized by law for the protection of the air,

10  water, or other natural resources of the state from pollution,

11  impairment, or destruction, the Department of Legal Affairs, a

12  political subdivision or municipality of the state, or a

13  citizen of the state shall have standing to intervene as a

14  party on the filing of a verified pleading asserting that the

15  activity, conduct, or product to be licensed or permitted has

16  or will have the effect of impairing, polluting, or otherwise

17  injuring the air, water, or other natural resources of the

18  state. As used in this section, the term "intervene" means to

19  join an ongoing proceeding; this section does not authorize a

20  citizen to institute, initiate, petition for, or request a

21  proceeding under s. 120.569 or s. 120.57.

22         (7)  In any administrative or judicial action

23  instituted under this section, other than an action involving

24  a state NPDES permit authorized under s. 403.0885, the

25  prevailing party or parties are entitled to costs and

26  attorney's fees. Any award of attorney's fees in an action

27  involving such a state NPDES permit is in the discretion of

28  the tribunal. If the tribunal has reasonable grounds to doubt

29  the solvency of the plaintiff or petitioner or the plaintiff's

30  or petitioner's ability to pay any costs or judgment that

31  might be rendered against him or her in any action brought

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    Florida Senate - 2002                                   SB 270
    8-189B-02




  1  under this section, the tribunal may order the plaintiff or

  2  petitioner to post a good and sufficient surety bond or cash.

  3         Section 3.  This act shall take effect July 1, 2002.

  4

  5            *****************************************

  6                          SENATE SUMMARY

  7    Provides that a water management district order resulting
      from an evidentiary hearing held under s. 120.569, F.S.,
  8    or s. 120.57, F.S., is not subject to review by the Land
      and Water Adjudicatory Commission, nor is a rule adopted
  9    after issuance of an order resulting from an evidentiary
      hearing held under s. 120.56, F.S., subject to such
10    review. Revises requirements for initiating specified
      proceedings under s. 403.412, F.S., the "Environmental
11    Protection Act of 1971."

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