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Wetlands:
Northwest Florida Environmental Resource Permitting
Our Position: support, with concerns
Bill Number: HB7163/SB2062
Sponsor: Representatives Needelman & Evers/Senator Clary
Legislative Session: 2006
7/5/06: Approved by Governor; Chapter No. 2006-228 on Friday, June 16, 2006 8:44 AM
5/14/06: Senate passed HB7163: 5/4/06: NWFWMD Environmental Resource Permit: ordered enrolled: SB2026/HB7163: You all know that song (the Stones): You can’t always get what you want, but you get what you need. That would be the case for the NWFWMD ERP legislation. The House bill is what passed, but we liked some of the language in the Senate bill better. We wanted the Senate version because dates for the implementation of the rule to be created, could occur by January 1, 2007 for a stormwater program and January 1, 2008 for an (isolated) wetlands program; (the House language reads “not before those dates,” and that the work creating the rule is to begin no later than 60 days after the bill becomes law.) The Senate bill also had language that the rule created would be based on the other WMD’s rules (comparable to) and that the local soils, etc. would be considered; the final language from the House says the NWFWMD will use the least restrictive of the other WMD’s rules and guidelines. The analysis by the wetlands experts from the Counties with local programs assured us the “least restrictive” measure was NOT problematic for them. The bottom line is that: 1) Local Government wetlands programs will not be pre-empted and 2) there is real money now to make a go of it! We just need to stay on top of everything as the rule making proceeds.
As you well remember the alerts we (Rosalie Shaffer, Ellen Roston, Susie Caplowe) sent out informing you of the various bills (SB1112/HB1447, SB7167/SB1528), that the developers were trying to amend with the local government pre-emption language never made it on a bill. Not permanently, anyway. It was amended by the House onto SB1528, but they were forced to remove it. With regard to the Solid Waste Bill, SB1528, again this was one of the bills that was amended with the “local government pre-emption paragraph” and as our alert stated, Senator Dockery would kill her own bill if too much got on it. Because of our grassroots and lobbying efforts, along with help from some of the Counties’ folks, we got that pre-emption language taken out of the Solid Waste bill before the House sent it back to the Senate. The House added the contents of other bills and Senator Dockery had enough and did not “concur” with the House changes, and killed the bill. There was brownfields (HB7131),vessels (HB7175/SB2128), floating vessels, Clandestine laboratories (SB2224/HB7065); Bottled water, Water projects, Brownfield cleanup provisions, etc. (It became what we call an anti-environmental “train”).
The 11th hour of session, that Friday, the developers, along with some assistance from Cynthia Henderson who was with the Department of Management Services under Governor Jeb Bush, and now working for some solid waste companies, tried again and came up with one more pre-emption amendment, this time to HB7167. There were actually three different versions of this pre-emption language and we worked against it all day long. Here is the first of several versions:
HOUSE AMENDMENT Bill No. HB 7167
Amendment No. 761651
Representative(s) Galvano offered the following:
Amendment to Amendment (841619) (with title amendment)
Between line(s) 956 and 957, insert:
Section 13. In an effort to eliminate duplication and ensure efficient streamlining of the permit process of chapters 373 and 403, Florida Statutes, and eliminate the overlapping of state, federal, and local regulations, the Department of Environmental Protection shall be responsible for ensuring statewide coordination and consistency in the delineation and permitting of surface waters, wetlands, and solid waste and shall create a task force of interested parties and present a report to the Speaker of the House of Representatives and the President of the Senate by September 1, 2006, with a list of permitting requirements authorized pursuant to chapters 373 and 403, Florida Statutes; the federal, state, regional, and local agencies that currently are required to issue those permits; a corresponding list of permits and the timelines; and recommendations as to which entity should be solely responsible for each permit.
(HB7167 was one of the House’s Growth Management bills) and it died.
5/4/06: Senator Clary did amend the House bill to be identical to the Senate on May 2, 2006. However, the House said they would not accept the Senate version. The Governor's office was neutral; DEP was neutral, and would go either way on the version of the bill, they just wanted the ERP to pass.
While we worked it alot to gain support for the amended House version, Senator Clary determined that if the Panhandle was to have the ERP, then the House version HB7163 as originally sent to the Senate, would have to do. So on Thursday, May 4, he stripped off all the amendments he had put on the bill earlier in the week, and then the Senate voted on the House Version. The Vote was 40 yeas and 0 Nays. The bill will now be ordered enrolled and then sent to the Governor.
We kept out the bad local government pre-emption language, and local governments rules can be stronger than the state. We are still fighting amendments being offered by the Homebuilders and St Joes'. A new version showed up at 10:26 AM Thursday, as an amendment to HB7167, the Growth Management glitch bill by Representative Johnson. We have worked it sufficiently hard already today, that we have been told it is being withdrawn. Here is the amendment language: (basically this amendment language is a back door attempt to pre-empt local governments on permitting of wetlands and more...)
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Representative(s) Galvano offered the following: |
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Amendment to Amendment (841619) (with title amendment) |
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Between line(s) 956 and 957, insert: |
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Section 13. In an effort to eliminate duplication and |
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ensure efficient streamlining of the permit process of chapters |
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373 and 403, Florida Statutes, and eliminate the overlapping of |
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state, federal, and local regulations, the Department of |
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Environmental Protection shall be responsible for ensuring |
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statewide coordination and consistency in the delineation and |
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permitting of surface waters, wetlands, and solid waste and |
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shall create a task force of interested parties and present a |
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report to the Speaker of the House of Representatives and the |
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President of the Senate by September 1, 2006, with a list of |
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permitting requirements authorized pursuant to chapters 373 and |
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403, Florida Statutes; the federal, state, regional, and local |
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agencies that currently are required to issue those permits; a |
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corresponding list of permits and the timelines; and |
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recommendations as to which entity should be solely responsible |
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for each permit. |
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======== T I T L E A M E N D M E N T ======== |
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Remove line(s) 1046 and insert: |
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System purposes; requiring the Department of Environmental |
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Protection to create a task force for certain purposes; |
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requiring a report to the Legislature; providing report |
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requirements; providing legislative findings; requiring |
4/29/06: On Tuesday, May 2. 2006, Senator Clary's bill SB 2062/HB7163 comes up for amendments and discussion on the Senate Floor ("special order"). The house version, HB7163 has been voted on by the full House and now in Senate messages. We have heard that the Senate version is what is going to be the final version of this legislation. But things change quickly and it is possible that on Tuesday, Senator Clary will take up amendments to make the Senate version, look identical to the House version. If that is the case, then the bill will stay in the Senate and be voted (Third Reading calendar) on by the full Senate and sent to the Governor. If the Senate decides to take up the House version and amend it to look like the Senate, then the bill will “bounce” back to the House for a full House vote again. Sometimes when bills “bounce” back and forth in “messages” …they die.
We prefer Clary's bill because 1) it speaks of "recurring" funds 2) speaks of "comparable" measures rather than "least restrictive" measures, but we are willing to accept the House version SO LONG AS NO PRE-EMPTIVE LANGUAGE is put back into the either bill.
The developers' lobbyists have not given up trying to get the pre-emption of local control put into that bill or any other related bill coming up on the House Floor this last week of session: such as SB 1112, HB1447, HB 7133 and now SB1528.
SB1112 and SB1528 are in House messages (the full Senate voted on them and sent them to the House, in messages. HB1112 and HB1447 are identical and HB7133/SB1528 are similar. The developers’ lobbyists are having legislators file amendments to these bills that would pre-empt local governments on wetlands decisions and wetland mitigation.
Sierra Club’s lobbyist, Susie Caplowe along with many other county and city lobbyists are staying on top of these “bad” amendments and informing legislators to oppose them. We need you to contact your legislators at their district office and in Tallahassee and tell them not to support any amendments to these bills or any other bills, that would pre-empt local control.
Therefore, we request that all of you do the following:
1) Contact Senator Clary and ask him to continue to keep any pre-emptive language out of his bill. clary.charlie.web@flsenate.gov. Phone Destin 850 833-9159, Phone Tallahassee 850 487-5009.
2) Contact your own Senator and representative and ask him/her to vote against any bill that tries to take away the rights of counties to have higher standards than ERP (or pre-empts the rights of local government to have higher standards).
3) For Senators, ask them to support SB 2062 coming up on Tuesday as long as the pre-emptive language is NOT in the bill. For Representatives, alert them to the fact that we believe Rep. Needelman is trying to get this pre-emptive language put in any bill and that it should be stopped. He is doing this because Martin County has denied some permits that would destroy wetlands and the County does not allow for mitigation of wetlands.
4) If you contact them by email, please follow up with a 3 second phone call to their Tallahassee and/or District office, to tell them to keep any pre-emptive language out of ANY bill that is being passed. We want the counties to have the right to have higher standards if they so choose.
You can find phone numbers for legislators on the legislative website:
http://www.myfloridahouse.gov/Sections/Representatives/representatives.aspx
http://www.flsenate.gov/Legislators/index.cfm?Tab=legislators&CFID=84922014&CFTOKEN=35721869
Thank you.
Ellen Roston, Rosalie Shaffer, and Susie Caplowe
for the Coalition for ERP,
This is one version of the language they are posting to various bills as an Amendment (with title amendment) :
Section 3. In granting or denying a development permit for
wetland construction, a local government shall consider
mitigation proposed by the applicant, provided the mitigation
fully offsets the loss of wetland functions in accordance with
the uniform mitigation assessment method adopted pursuant to s.
373.414(18), Florida Statutes.
4/25/06: House bill passed out of the House and now in the Senate. Senate bill
is still the better version and we are working to keep the local government pre-emption out of the bill.
4/20:06: The Senate General Government Appropriations Committee had Senator Clary shell bill on the agenda for Tuesday 4/18/06. The shell bill was replaced by the Senate's version of HB7163. Senate looks better than the House version at this time.
4/20/06:4/14/06: The Senate bill SB2062 mentions recurring General Revenue but the House bill 7163 only has money from GR, not recurring and the amounts are different. Both versions would allow for the legislature to "suspend" the program if the legislature determines that there is not enough money that year in General Revenue to pay for it.
2) Both bills do not begin implementation of the stormwater controls until January 1, 2007 and protection of isolated wetlands until January 1, 2008 for the Panhandle, and
3. Local Government pre-emptions are out of the bills.
4. The House version states that the existing stormwater rules, will be updated using the least restrictive measures and criteria adopted in other water management district rules.
5. Provide no Bert Harris exemption, so the entire wetland program in Northwest Florida will be subject to takings claims.
Click here to read bill text and bill history SB2062.
Click here to read bill text and bill history HB7163. Engrossed1 is the bill version that passed the House floor.
Status
5/4/06: Passed and sent to the Governor. 4/29/06: 4/20/06: The Homebuilders, Developers, Farm Bureau are opposed to the removal of the local government pre-emption language. As a result of the new language, we are in another battle: to get some additional changes to the bills and to keep the local government pre-emption out.
Action Needed
Background
This is the argument prepared for Senator Clary by the Hillsborough EPC: Local Environmental Regulatory Authority Ch. 403.182 Local pollution control programs. (1) Each county and municipality or any combination thereof may establish and administer a local pollution control program if it complies with this act. Local pollution control programs in existence on the effective date of this act shall not be ousted of jurisdiction if such local program complies with this act. All local pollution control programs, whether established before or after the effective date of this act, must: (b) Provide by ordinance, regulation, or local law for requirements compatible with, or stricter or more extensive than those imposed by this act and regulations issued thereunder. Ch. 163.3177 Required and optional elements of comprehensive plan; studies and surveys. (6) In addition to the requirements of subsections (1) – (5) and (12), the comprehensive plan shall include the following elements: (d) A conservation element for the conservation, use, and protection of natural resources in the area, including air, water, water recharge areas, wetlands, waterwells, esturine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources. Ch. 373.441 Role of counties, municipalities, and local pollution control programs in permit processing. (1) The department in consultation with the water management districts shall, by December 1, 1994 adopt rules to guide the participation of counties, municipalities, and local pollution control programs in an efficient, streamlined permitting system. Such rules shall seek to increase governmental efficiency, shall maintain environmental standards, and shall include consideration of the following: (b)Provisions under which a locally delegated permit program may have stricter environmental standards than state standards.
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