2015 Florida Legislative Update: Environment, Growth Management and Water

by Holland & Knight LLP
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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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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