2015 Florida Legislative Update: Environment, Growth Management and Water

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 returned a month later for a special session that began on June 1 and ended on June 19, when the Legislature passed a budget and related implementing bills. The following is a summary of what happened on some of the key measures affecting Florida’s environment, growth management and water.

BILLS THAT PASSED

Amendment 1 Funding

A major priority during the 2015 Regular Legislative Session and Special 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. Sponsors of these bills noted they were designed to show “transparency” for Amendment 1 funding and prevent comingling with general revenue. None of the implementing bills made their way through the Legislature during the regular session, but several were within the call for the special session and were ultimately part of the Conference Committee Report on the Budget. 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. Over $700 million in water infrastructure projects were proposed by sponsors in the House. These bills did not pass and were not part of the Special Session but formed an important part of the conference committee discussions.

SBs 2514A, 2516A, 2518, 2520A, 2522A and 2524A were filed in the Special Session and ultimately 2514A, 2516A, 2520A and 2522A were approved as part of the Conference Committee Report. SB 52516A 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.

SB 2516A implemented Amendment 1 by inserting the requirement for 33 percent of the documentary stamp revenue to be dedicated to the Land Acquisition Trust Fund. It also authorized refinancing of existing bonds for Florida Forever and Everglades and placed an overall bonding cap of 58.25 percent on Amendment 1 funds. Additionally, the bill terminated existing dedications of revenue in the LATF for invasive plant removal and other land management programs to be replaced by Amendment 1 revenue. The bill also repurposed the LATF to eliminate references to “acquisition and improvement” of lands to fund a broader array of Amendment 1 issues to provide for maximum flexibility for appropriations under the amendment.

The major focus for the Special Session was the budget. Generally speaking the House was focused on land management and water infrastructure projects while the Senate wanted more funds for Everglades and land conservation. Both budgets used Amendment 1 funds for payment of debt service and funding existing operational budgets for state parks, state forests, FWCC law enforcement and the Division of Historical Resources. The House proposed bonding $200 million of Amendment 1 for mostly water projects but the Senate rejected this proposal because they were concerned there was not enough peer-reviewed oversight of water projects as they would have required in SB 918. Once the conferences could not agree on bonding, the Amendment 1 budget basically became a status quo budget with the largest percentage of funds for existing agency operations. This chart lumps together appropriations from the Senate report.

Amendment 1 Budget:

Amendment 1 was a major focus of debate on the budget in both houses. Supporters of the budget argued that Amendment 1 did not provide new revenue and did not require funds to be spent on land conservation. Other lawmakers questioned what seemed to be a lack of funds for Everglades and Florida Forever which appears to violate the stated intent of the voters. Supporters and opponents read from the ballot language and from documents provided by the initiative sponsors to support their positions. In the Senate, both President Andy Gardiner and Appropriations Chief Tom Lee noted this will be a 20-year program and that they anticipated more efforts for Everglades and Florida Forever in future years.

On June 22, three environmental interest groups and a citizen filed a judicial challenge to Amendment 1 funding, seeking a determination that it is contrary to the intent of the voters.

The act became effective on July 1, 2015; Chapter 2015-229

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.

Land Application of Septage

The land application of septage is scheduled to be prohibited as of January 1, 2016. Measures filed during the regular session (SB 648 and HB 687) would have repealed the ban, while other proposals would have extended the date. None of these measures were enacted; however, one of the implementing bills passed during the special session (SB 2502-A) extends the effective date to July 1, 2016.  

The act became effective on July 1, 2015; Chapter No. 2015-222

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.¹

The act becomes effective on Oct. 1, 2015. Chapter No. 2015-142

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.

The act became effective on June 11, 2015. Chapter No. 2015-164

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.

The act became effective on June 10, 2015. Chapter 2015-128

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 DIED

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.

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.

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.

Public Records/Public Agency Contracts

HB 163/SB 224 would have revised the procedures for obtaining public records relating to a public agency’s contract for services with a private contractor. Among other things, the bills would have required all public records requests relating to these contracts to be made directly to the agency, rather than the contractor. The bills also would have allowed for the award of attorneys' fees in actions to enforce a public records request only if the plaintiff provided the prescribed prior notice to the contractor or agency. The Senate bill passed the Senate, was amended in the House and died in returning messages.

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.

Notes

¹ This is consistent with the majority opinion in City of Jacksonville v. Smith, 159 So. 3d 888 (Fla. 1st DCA 2015), questions certified and jurisdiction accepted, Smith v. City of Jacksonville, Case No. SC15-534 (Fla. May 22, 2015), but contrary to the majority opinion in FINR v. Hardee County, 40 FLW D1355 (Fla. 2d DCA June 10, 2015) (conflict certified).

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.