April 02, 2020
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Senate Bill 0270

Senate Bill sb0270c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2002                            CS for SB 270

    By the Committee on Natural Resources; and Senator King





    312-2258A-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

                                  1

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    Florida Senate - 2002                            CS for SB 270
    312-2258A-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

                                  2

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    Florida Senate - 2002                            CS for SB 270
    312-2258A-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  

                                  3

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    Florida Senate - 2002                            CS for SB 270
    312-2258A-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

                                  4

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    Florida Senate - 2002                            CS for SB 270
    312-2258A-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.  Subsection (5) of section 403.412, Florida

  5  Statutes, is amended to read:

  6         403.412  Environmental Protection Act.--

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

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

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

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

11  political subdivision or municipality of the state, or a

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

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

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

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

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

17  state. As used in this section and as it relates to citizens,

18  the term "intervene" means to join an ongoing proceeding; this

19  section does not authorize a citizen to institute, initiate,

20  petition for, or request a proceeding under s. 120.569 or s.

21  120.57. Nothing in this subsection limits or prohibits a

22  citizen whose substantial interests will be determined or

23  affected by a proposed agency action from initiating a formal

24  administrative proceeding under s. 120.569 or s. 120.57, or

25  from initiating an administrative proceeding if the citizen

26  meets the standing requirements for judicial review of a case

27  or controversy pursuant to Article III of the United States

28  Constitution in a matter pertaining to a federally delegated

29  or approved program. For purposes of this subsection, a

30  citizen's substantial interests will be considered to be

31  determined or affected if the party demonstrates that it may

                                  5

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    Florida Senate - 2002                            CS for SB 270
    312-2258A-02




  1  suffer an injury in fact which is of sufficient immediacy and

  2  is of the type and nature intended to be protected by this

  3  chapter. A sufficient demonstration of a substantial interest

  4  may be made by a petitioner that establishes that the proposed

  5  activity, conduct, or product to be licensed or permitted

  6  affects the petitioner's use or enjoyment of air, water, or

  7  natural resources protected by this chapter. Any nonprofit

  8  corporation or association that has at least 25 current

  9  members residing within the county where the activity is

10  proposed and that was formed for the purpose of the protection

11  of the environment, fish and wildlife resources, and

12  protection of air and water quality may initiate a hearing

13  pursuant to s. 120.569 or s. 120.57, provided that the

14  nonprofit corporation or association was formed at least 1

15  year prior to the date of the filing of the application for a

16  permit, license, or authorization that is the subject of the

17  notice of proposed agency action. Existence of the required

18  number of members of the organization may be established

19  through the submission of an affidavit, current membership

20  list, or corporate or organizational business records,

21  including the names and addresses of the 25 current members.

22  No demonstration of special injury different in kind from the

23  general public is required.

24         Section 3.  This act shall take effect upon becoming a

25  law.

26  

27  

28  

29  

30  

31  

                                  6

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    Florida Senate - 2002                            CS for SB 270
    312-2258A-02




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 270

  3                                 

  4  The committee substitute (CS) does not restrict the Department
    of Legal Affairs, a political subdivision, or municipality
  5  from initiating a proceeding under s. 120.569, F.S., or s.
    120.57, F.S.; the restriction to intervention only applies to
  6  citizens.

  7  The CS now provides that s. 403.412(5), F.S., does not limit
    or prohibit a citizen whose substantial interests will be
  8  determined or affected by a proposed agency action from
    initiating a formal administrative proceeding under s.
  9  120.569, F.S., or s. 120.57, F.S., or from initiating an
    administrative proceeding if the citizen meets the standing
10  requirements for judical review of a case or controversy
    pursuant to Article III of the United States Constitution in a
11  matter pertaining to a federally delegated or approved
    program. For purposes of subsection (5), a citizen's
12  substantial interests will be considered to be determined or
    affected if the party demonstrates that it may suffer an
13  injury in fact which is of sufficient immediacy and is of the
    type and nature intended to be protected by ch. 403, F.S. A
14  sufficient demonstration of a substantial interest may be made
    by a petitioner that establishes that the proposed activity,
15  conduct, or product to be licensed or permitted affects the
    petitioner's use or enjoyment of air, water, or natural
16  resources protected by ch. 403, F.S.

17  In addition, the CS permits any nonprofit corporation or
    association that has at least 25 current members residing
18  within the county where an activity is proposed and that was
    formed for the purpose of the protection of the environment,
19  fish and wildlife resources, and protection of air and water
    quality to initiate a hearing pursuant to s. 120.569, F.S., or
20  s. 120.57, F.S., provided that the nonprofit corporation or
    association was formed at least one year prior to the date of
21  the filing of the application for a permit, license, or
    authorization that is the subject of the notice of proposed
22  agency action. Existence of the required number of members of
    the organization may be established through the submission of
23  an affidavit, current membership list, or corporate or
    organizational business records, including the names and
24  addresses of the 25 current members. No demonstration of
    special injury different in kind from the general public is
25  required.

26  Subsection (7), authorizing the award of attorneys fees and
    costs in administrative actions, has been deleted.
27  
    The effective date has been changed to upon becoming law.
28  

29  

30  

31  

                                  7

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