2013 Legis lative UpdateLower Wes t Coas t Utility CouncilMay 14, 2013Thomas F. Mullin, Es q.
Summary of Ses s ion• 286 bills passed both the Senate and House, 37bills signed by Gov. Scott, 11 vetoed, and the restawait signature (or passage without).• Big focus of this years’ session was Medicaidexpansion, Citizen’s Property Insurance, andethics and elections reform• Surprisingly active on environmental and waterbills after prior two years included major changesto environmental and growth management laws
Conservation Budget$$$$• Florida Forever• $10 million from General Revenue• $10 million from Land & Water Trust Fund for military buffers• $50 million from sales of surplus lands• Everglades Restoration• $70 million from trust funds• Springs Protection• $10 million• Conservation and Rural Lands• $11.1 million from General Revenue• Greenways and Trails• $10 million a year for 5 years from FDOT Trust Fund
Everglades Improvement &Management – HB 7065• Adds a per acre tax for agricultural property in EvergladesAgricultural Area (EAA) to fund $880 million Evergladesrestoration plan (“Long-Term Plan”)• Finds that BMPs by owners/users of land in the EAA reducesnutrients in Everglades Protection Area• Authorizes continued ad valorem tax use by SFWMD forimplementation of Everglades restoration plan• Authorizes $32 million annually from general revenue and trustfund for FDEP Restoration Strategies Regional Water Quality Plan
Environmental Regulation –HB 999• Limits the request by local governments for requestingadditional information on development permitapplications to three requests.• Authorizes the lease of sovereign submerged lands foruse as marinas, boatyards, and marine retailers, withrestrictions.• WMD is the only water well construction licenserequired for the construction, repair, or abandonment ofwater wells in the state.
Environmental Regulation –HB 999• Exempts from environmental resource permitting rules:• Construction, operation or maintenance of any whollyowned manmade ponds constructed entirely inuplands or drainage ditches constructed in uplands;or• Activities affecting wetlands created solely by theunreasonable and negligent flooding or interferencewith the natural flow of surface water caused by anadjoining landowner.
Environmental Regulation –HB 999• When calculating agricultural self-suppliedwater needs, the WMD must consider thedata of future water supply demandsprovided by DACS.• Require DACS to establish an agriculturalwater supply planning program that includescertain data and provide criteria fordevelopment of data.
Environmental Regulation –HB 999• On the last day of the session, the legislature removedsome controversial provisions of the bill. First, themoratorium on fertilizer regulation by local governmentswas removed. Also, the section concerning impacts towetlands by water control districts was stricken. Finally,the approved bill did not include the section related tofees charged to governmental entities for stormwaterutility bills.• The bill contains a provision ratifying several no-bidsugar leases that were approved by the Governor andCabinet earlier this year and are under legal challenge.
Numeric Nutrient Criteria –SB 1808• The bill directs DEP to establish specific numericnutrient criteria for unimpaired waters (includingDEP’s calculation of the current conditions ofthose waters) and for those estuaries and non-estuarine coastal waters without numeric nutrientcriteria established by rule or final order as of thedate of the report.• Directs DEP to send a report to the Legislatureand Governor conveying the status ofestablishing numeric nutrient criteria.
Numeric Nutrient Criteria –SB 1808• Authorizes the FDEP to implement the NNC through the state’s TotalMaximum Daily Load (TMDL) program if the water body has been verifiedas impaired. TMDL’s limit the quantity or load of a specific pollutant,including nutrients, that may enter the waterbody.• Orders the FDEP to establish estuary specific nitrogen, phosphorus andchlorophyll-a criteria for any estuaries not already subject to NNC, andestablish chlorophyll-a for non-estuary coastal waters by December 1,2014.• Represents the final step necessary for Florida to take full control of theregulation of nutrients in its waterbodies. Federal Court must approve anamendment to the Consent Decree authorizing FDEP’s NNC.. EPA’s2009 Determination Letter finding that NNC were necessary must bewithdrawn.
Public Private Partners hips –HB 85• Creates the Florida Public –Private PartnershipAct in Section 287.05712, F.S.• Contains standards for agreements betweenpublic entities and private entities to finance,construct, develop or upgrade facilities or otherpublic infrastructure.
Public Private Partners hips –HB 85• Addresses the procurement process, projectqualification processes, project approvalrequirements, and comprehensive agreementrequirements for qualifying projects.• “Qualifying project” means a facility or project thatserves a public purpose; improvements of buildingsto be principally used by a public entity or the publicat large or that supports a public service deliverysystem; or a water, wastewater or surface watermanagement facility.
Public Private Partners hips –HB 85• Sets forth the notice requirements for acceptingan unsolicited bid, and competing bids.• Specifies the information which must becontained within the comprehensive agreementbetween the public and private entities.• Promotes long-term permit language foralternative water supplies.
Cons umptive Us e Permits forAlternative Water Supplies –SB 364• Requires issuance of a permit duration of at least30, and possibly as long as 37 years, for analternative water supply project.• Prohibits the WMD from reducing the AWSallocation during the compliance review, unless areduction is needed to address adverseenvironmental impacts or interference withexisting legal users.
Cons umptive Us e Permits forAlternative Water Supplies –SB 364• A WMD can not reduce an AWS allocation simplybecause the total quantity has not been used oranticipated to be used during the permit term.• A permit issued under this bill (i.e. 30+ year AWSpermit) may not authorize the use of non-brackish groundwater supplies or non-alternativewater supplies.
Water Supply – SB 948• Adds utility companies, private landowners, water consumers,and FDACS to the list of entities that should cooperate to meetwater needs.• Strengthens the role of agriculture in water supply planning by:• Adding FDACS as to list of agencies the WMDs mustconsult with for regional water supply planning• Must include agricultural demand projections in regionalwater supply plan• FDACS must establish an agricultural water supply planningprogram that uses best available data• WMD must engage with, and assist, “self-suppliers” duringplanning process
Water Quality Credit Trading –HB 713• Open WQ Credit Trading throughout Florida.• DEP may authorize through BMAP’s.• Participation is voluntary.• Rulemaking to implement not required.
Ons ite Sewage Treatment andDis pos al Sys tems – HB 375• Revises and softens some of the onsite sewage treatment anddisposal system (septic tank) permitting and inspectionrequirements that were imposed by the legislature over thepast several years.• Revise frequency of inspections for homeowners.• Provides that single-family homeowners may be approved byFDEP to operate and maintain their own onsite sewage.• Home owner must receive certification from the treatmentsystem’s manufacturer that the property owner receivedtraining on service and installation of the system.
Manufacturing Development –HB 357• Creates an expedited permitting and developmentapproval process for manufacturing projects, either newconstruction or expansion of an existing facility.• Local government would pass a local manufacturingdevelopment program that sets forth procedures andcriteria for approval of a matter development plan.• Local government may not require additional localgovernment approvals other than building permits.
Stormwater Management Permits –SB 934• Authorizes certain municipalities and counties toadopt “stormwater adaptive management plans”and obtain conceptual permits from the DEP orWMD for urban redevelopment projects.• Presumption that stormwater discharges forprojects which demonstrate net improvement inwater quality discharged do not cause orcontribute to violation of water quality criteria.
Stormwater Management Permits –SB 934• Must not prescribe additional or more stringentlimitations concerning quantity and quality ofdischarges from stormwater management systemsbeyond those provided in the section.• Must be issued for a duration of 20 years unlessotherwise requested by the applicant.
Total Maximum Daily Loads –SB 1806• Specifically excludes TMDLs from the legislativeratification requirements of s. 120.541(3), F.S.• The change exempts rules adopting TMDLs fromhaving to comply with the statute that requiresrules having greater than $1 million impact on theregulated community over 5 years from receivinglegislative ratification.
Water Management Dis tricts –SB 244• Relates to the establishment of MFLs and waterreservations.• Came about as a result of concern that MFLsadopted by SRWMD for the Suwannee andSanta Fe Rivers would never be met because ofthe impact on permitted users.
Water Management Dis tricts –SB 244• Requires water management districts to apply, without adoptingby rule, the reservations, minimum flows and levels, recoveryand prevention strategies adopted by DEP.• Requires a regional water supply authority and the applicablewater management district to jointly develop the water supplycomponent of the regional plan, when the geographic area ofstudy of project crosses boundaries of water managementdistricts.
Liability of Des ign Profes s ionals –SB 286• Creates a new Section 558.022, Florida Statutes, which limits theprofessional liability of “design professionals”. A design professional includesa licensed architect, interior designer, landscape architect, engineer, surveyoror geologist. Geologist is a new profession added to the definition.• Provides that design professionals are not individually liable for damagesresulting from their negligence occurring within the course and scope ofprofessional services while employed or acting as an agent of a businessentity.• Provides specific conditions must exist for such limitation on liability apply.Namely, the contract between the business entity and claimant must notname the design professional as a party to the contract, the contract mustclearly state that an individual employee or agent may not be held individuallyliable, the business entity maintains professional liability insurance pursuantto the contract, and the damages alleged are economic, and do not extend topersonal injuries or property not subject to the contract.
Brownfields - HB 415(Did not pas s )Proposed Amendments to Chapter 376, FloridaStatues would have:• Revised procedures, public notice and adoptionof brownfields designations.• Addressed designations within and outsidespecified redevelopment areas, enterprise zones,etc.
Ques tions ?Thomas F. Mullin, Es q.TMullin@s fflaw.com(561) 982-7114SOUTH FLORIDA7700 Congress Ave., Suite 2201Boca Raton, FL 33487NORTH FLORIDA2548 Blairstone Pines Dr.Tallahassee, FL 32301CENTRAL FLORIDA766 N. Sun Dr., Suite 4030Lake Mary, FL 32746