Legislative Update
As you read this we are in week seven of the nine-week legislative session. While very little is definite until session is over on May 2, this update will give you an idea of what’s happening with environmental bills so far this year.
First of all, the legislature is not meeting this week! Since Passover was on Monday and Good Friday ends the week, there are no committee meetings or floor sessions scheduled. That means almost all committees have had their last meeting and starting next week we’ll be in the “end-game” of the session. Any bill that hasn’t been heard in at least one of its committees of reference is basically dead for the year.
Issues in this update: budget, fracking, springs bill, bad environmental regulation bill, DRI bills, renewable energy issues and bad energy memorials, land application of septage, plastic bags, chemicals of high concern, coastal management permitting and aquatic preserves, flood insurance, brownfields, green transportation funding, and reclaimed water.
Budget
The “must pass” item for each session is the budget and both the House and Senate have passed their versions. Now they have to work out the differences between them and compromise on the final document. Overall, this has been a somewhat less painful process than in recent years due to an available surplus of $1.2 billion this year (largely from increased sales tax collections as the economy emerges from the recession.)
At this point the Senate has more money for the Everglades and Indian River Lagoon while the House has more for local water projects and for Florida Forever. Both sides have $30 million for the bridging of Tamiami Trail and money for Springs projects. The Senate has $125 million vs. the House’s $100 million for petroleum cleanup. The House budget has $100.5 million for local water projects and the Senate only provides $43.3 million. But the total amounts are not too far apart and it’s likely it won’t take too long for them to come to agreement.
As of this writing the conference committees that will work out the differences between the House and Senate environmental budgets have not been named, but that should happen soon. The committee will be formed of members from the House and Senate and each chamber will alternate making offers on the differences between them. When an offer is accepted it is taken off the table and only the remaining differences are the subject of further negotiation. If the committee gets to the point where it can make no further progress, the remaining differences are “bumped up” to the Appropriations chairs (Sen. Negron and Rep. McKeel). Any last sticking points are bumped up to the Speaker of the House and President of the Senate.
Florida Forever funding: The Senate provides a total of $40 million which is completely dependent on raising the money by selling non-conservation lands. This is better than last year’s fiasco which required selling up to $50 million of conservation lands in order to purchase new conservation lands. DEP went through a long process of identifying lands that could be surplussed only to find that the conservation land the state owns is valuable and should not be sold off. They have finally abandoned that plan.
However, this year’s requirement of funding further land purchases by the sale of non-conservation lands does not mean $40 million will be available to make purchases with. The Cabinet has approved the sale of the almost 80 acre A.G. Holley Hospital property to a Boca Raton developer for over $15 million, but where another $25 million will come from is unknown.
The House budget for Florida Forever also has the $40 million from the sale of non-conservation lands and adds $15 million for additional purchases and $15 million for the purchase of conservation easements to protect rural agricultural land from development for a potential total of $70 million.
The Senate funding for Everglades and Indian River Lagoon projects reflects Appropriations Chair Negron’s concerns about the impact of the Lagoon’s collapse and the subsequent recommendations of the Select Committee he chaired prior to session.
Biggest bills
Fracking HB 71/ HB 157 by Rep. Rodrigues
These bills would have required disclosure of the chemicals used in fracking but would have also provided the industry with a mechanism to keep any chemicals secret by claiming they were a “trade secret.” Each passed its first committee on party line votes and HB 71 also passed its second of three committee referrals. But neither had a Senate companion and both appear to be dead for the year.
Fortunately, Florida has a strong open government provision in the Constitution that requires public record exemptions to be in single subject bills that are adopted by a two-thirds vote in each chamber. Therefore, the Democratic minority was able to take a caucus position against 157 and kill it. Two years ago that would not have been possible as the minority party had fewer than one third of the seats in both the House and Senate. (Elections matter.)
The industry would never allow the disclosure requirement to pass into law without the trade secrets exemption that allows them to hide what they’re doing.
Springs SB 1576 / HB 1313 by Sen. Dean / Rep. Brodeur
The Springs bill has gotten a great deal of focus. A group of five Senators: Sens. Dean, Simmons, Hays, Montford, and Simpson, all recognized that the condition of Florida’s springs is dire and joined together to craft a bill to begin fixing the problems. At the end of this report is a section by section description of how the bill works, but here in a very condensed form, is what it does:
1576 provides:
- Funding
- Worst First approach
- Method to address Water Quantity
- Method to address Water Quality – identify sources of pollution and requiring action when funding is provided
- Lawn fertilizer
- Agricultural fertilizer
- Stormwater
- Septic tanks
- Wastewater treatment facilities
- Some deadlines
- Prohibited activities
- Study and develop new techniques and practices
SB 1576 passed its first two Senate committees unanimously and still has the opportunity to be heard in Senate Appropriations. The bill has been through numerous iterations since the fall and many of Sierra Club’s requested amendments have been adopted.
The House bill however, has not even been heard in its first committee. As this is written there is talk of a springs “lite” bill that the House may be willing to take up. We will be keeping a very close eye on any such legislation. It would be far better to pass nothing than a bill that will make things worse. Incoming Senate President Gardiner expressed his support for the intent of the bill as presented on the Senate side and told the industry lobbyists who were damning the bill with faint praise that they weren’t going to “study us to death” and they weren’t going to “run out the clock.” He’ll be President for two years so we’ll have some leverage to actually get something done.
HB 703 / SB 1464 Environmental Regulation by Rep. Patronis / Sen. Simpson
Rep. Patronis’s annual omnibus anti-environment regulation bill ran into difficulty this year – but don’t relax yet.
The original language of HB 703 included a retrospective gutting of the past ten years of local ordinances protecting wetlands or springs or addressing stormwater, preempted local governments’ ability to choose whether a super majority is necessary to amend a comprehensive plan, allowed for 30 and 50 year comprehensive use permits for water, reintroduced the preemption of Orange County’s development regulations by the Ranger Drainage District, and once again extended the expiration date of building permits (this time for a two year period.)
The bill met with significant push back and Rep. Patronis agreed to remove some objectionable sections, but there was still nothing to like in the bill and the companion, SB 1464 by Sen. Simpson was further trimmed in its first Senate committee. SB 1464 was amended in its first committee to remove the preemption of comp plan amendments going back to 2003 and the Ranger Drainage District section. The bill was then scheduled in the Community Affairs Committee which the sponsor, Sen. Simpson, chairs. There was a long agenda and Sen. Simpson TP’d (temporarily postponed) his own bill, Since Community Affairs won’t meet again this year the bill should be dead.
But (there’s always a “but”…) both HB 703 and SB 1464 passed their first committees of reference. Therefore, under the rules, any piece of the bill can now be amended onto other bills. So we’ll be watching all the amendments to all the bills to try to head off any attempt to sneak the really bad provisions into law.
Renewable Energy – SB 922 / SJR 916; HJR 825 / HB 827 by Sen. Brandes and Rep. LaRosa
These linked bills would put a Constitutional amendment on the November ballot to extend the exemption from ad valorem (property) taxes on renewable energy improvements to commercial as well as residential properties. SJR 916 and HJR are the Joint Resolutions that would put the measure on the ballot and SB 922 and HB 827 are the bills that would implement the constitutional change as soon as voters adopted it.
The linking of the implementing bill was spurred by the delay in implementing the ad valorem exemption for residential property which was adopted by voters in 2008 but wasn’t implemented until last year – five years later.
Sen. Brandes’ bills made it through their first committees, but since the House bills have been stopped by Chair Workman who has refused to put them on the agenda of the Finance & Tax Subcommittee the issue appears to be dead for the year. Chair Workman has been quoted saying he’s not opposed to solar, just to subsidizing it. But he apparently has no problem with the subsidies fossil fuel and nuclear power plants get.
SB 372 / HB 241 Developments of Regional Impact by Sen. Galvano / Rep. Gaetz
Sen. Galvano’s SB 372 would eliminate the regional review large development projects are supposed to receive if they will affect more than one jurisdiction. This means one county could approve a huge development that will cause problems for another county with no recourse. Worse, the bill eliminates the requirement that the exemption from the DRI process only apply within the Urban Service Area (USA). That exemption was created for two reasons: First, if a development was being built inside a USA the impact of the urban area was already in place and neighboring communities were not likely to be severely affected; second, the requirement that the development be within the USA meant it would not be out in the natural green spaces of the county creating sprawl.
Fortunately, the House companion bill, HB 241 by Rep. Gaetz was not heard in its first committee and the Senate bill was TP’d in Community Affairs last week. This bill could come back next year.
HB 1113 / SB 1160 Land Application of Septage by Rep. Edwards / Sen. Evers
In 2010 SB 550 was passed into law. That was the bill that called for septic tank inspections and evaluations in an attempt to get a handle on the nutrient pollution they cause. All the inspection requirements were gutted in SB 1263 in 2012, but one provision survived: the prohibition on the land application of septage (the stuff pumped out of septic tanks) by 2016.
Some septic tank pumpout haulers find that wastewater treatment plants are too small to accept their loads or turn them away for other reasons. Treated septage can be taken to landfills, but it must be dewatered first. Despite the ban being on the books since 2010, the requisite infrastructure has not been put in place, and now with the deadline approaching, the septage has to go somewhere.
HB 1113 and SB 1160 were filed as bills to push the ban on land application to 2020, but the environmental community has been able to bring it back to 2017. While this is a year later than current law, the tradeoff for waiting one year is this: DEP will head up a study of the impact of land application and the sufficiency of the Department of Health rules to protect water quality.
A review of the DOH rule shows that it is designed from a public health perspective, not an environmental one. Septage is raised to a pH of 12 for two hours (or 12.5 for 30 minutes) before it can be applied to the land. This is fine as far as killing fecal coliform bacteria but it does nothing about the nitrogen and phosphorous that pollutes our waters.
Sierra Club has identified a number of financing sources in statute that can be drawn on to fund the necessary infrastructure. The study is to be completed in time for the 2016 session so a comprehensive bill can be drawn up that eliminates the technical challenges facing the haulers and the problem of nutrients getting into the water.
This bill is emblematic of the impact of population growth and the need for statewide and regional planning to accommodate it. Sadly, the current legislature doesn’t seem to be getting the message yet.
HM 821 Keystone XL Pipeline by Rep. Hill
This memorial (essentially a message from the Florida legislature to Congress and the President) urges the approval of the Keystone XL Pipeline. It has sailed through the House and, though it doesn’t have a Senate companion, has been received in the Senate and referred to only one committee – Rules – which is one of the few that will continue to meet in weeks 8 and 9.
Tar sands oil is dirtier than other oils both in terms of its impact on water and the amount of carbon it releases. Because it tends to sink as the volatiles evaporate away it is much harder to clean up than oil that can be “skimmed” off the surface. Tar sands oil releases more carbon into the atmosphere because its extraction is highly energy intensive to release the tarry substance from the sand and to get it to a consistency where it can be moved through a pipeline.
SB 830 Carryout Bags by Sen. Bullard
This good bill finally got heard in committee this year for the first time in a few years. High School students from Cutler Bay, a municipality in Sen. Bullard’s district brought him the idea for the bill after participating in a cleanup.
The bill would eliminate the current preemption of local governments’ ability to ban the use of plastic bags and at the same time create a single model ordinance localities could adopt so businesses would only have to deal with one set of rules in any place where a plastic bags ordinance was adopted. (A single one-size-fits-all model ordinance is acceptable in this instance because there is no need to address the problem on a watershed by watershed basis as is the case with lawn fertilizer ordinances.)
One provision of the bill, that paper bags were to be sold to customers who don’t bring their own bags for ten cents apiece, ran into opposition from Sens. Abruzzo, Gardiner, and to a degree from Sen. Latvala, who all labeled the ten cent fee a “tax.” (The ten cents would be divided between the retailer to defray their costs and the local school district.)
The Retail Federation and Associated Industries of Florida both opposed the bill while Sierra Club Florida, Audubon, and Surfrider all spoke in support.
Sen. Bullard debated the bill as thoroughly as possible and in the end asked that it be TP’d. He promises to bring it back next year.
SB 1180 / HB 991 Chemicals of High Concern by Sen. Sobel / Rep. Pritchett
Sen. Sobel was able to get her bill, SB 1180, through two of its four committees. Rep. Pritchett’s HB 991 was never heard in its first so the bill is done for the year. But it is better positioned for next year.
The bill calls for the Department of Health to publish a list of between 50 and 100 chemicals that are suspected of causing health problems for pregnant women and for children when the suspicion is based on peer reviewed research or government agency findings.
The bill will be back again next year.
HM 1027 / SM 1174 Carbon Dioxide Emissions from Fossil-fueled Electric Generating Units by Rep. Wood / Sen. Gibson
The utilities have been hard at work around the country getting state legislatures to adopt similar memorials urging Congress to tell EPA to go easy on coal burning utilities. (I again refer you to the Integrity Florida report on utility campaign contributions…)
House sponsor Rep. Wood is a self-described “all-of-the-above” Republican and his co-sponsor is Democratic Rep. Mia Jones (who was in the running for the leadership of the House Democrats in the coming two year term) and the Senate sponsor is Democrat Sen. Audrey Gibson. Both Sen. Gibson and Rep. Jones hail from the Jacksonville area where the utility is JEA.
Both bills have passed all their committees and are ready for floor votes.
HB 791 / SB 956 Coastal Management by Rep. Renuart / Sen. Bean
This bill was one of only two bills DEP wanted passed this year and it has two sections, both of which have been amended to make them better. The first section of the bill is still somewhat problematic in that it makes permitting easier while we think beach construction should get careful site and project specific review.
The first section of the bill provides for areawide and general permits for various activities. It has been amended to require consultation with FWCC on areawide permits (to consider and ameliorate impacts on threatened or endangered species), and to limit work on beachfront swimming pools to only those attached to single family residences and to limit work on beach armoring (such as sea walls) to “minor reconstruction” which means it cannot include any expansion or movement seaward of the original permitted footprint of the armoring.
The second section of the bill deals with accommodations for visitors to aquatic preserves. Originally, this section provided for no-bid contracting, but it has been amended to require the consideration of the qualifications of bidders in evaluating whether to contract with them or not. This frees the department from having to accept the lowest bidder, but does not allow them essentially unlimited discretion and requires transparency via the bidding process. The section has also been amended to require that approved concessions comply with the ARC approved management plan for the preserve.
HB 01123 / SB 1094 Aquatic Preserves by Rep. Porter / Sen. Dean
This bill designates the coastal region of Pasco, Hernando, and Citrus counties as the Nature Coast Aquatic Preserve. It will fill in the undesignated gap between the Big Bend Seagrasses
Unfortunately, the legislation includes a provision allowing marinas. This is provided for in existing law, but is not included in the language for most Preserves. The language does not allow for dredging for new navigation channels though, only existing ones.
SB 542 / HB 897 Flood Insurance by Sen. Brandes / Rep. Hooper
Sierra Club Florida got involved with the issue of flood insurance this year for the same reason we supported last year’s bill that prevented Citizens Insurance from issuing policies for property seaward of the Coastal Construction Control Line: to prevent subsidizing development where it doesn’t belong.
The original language of SB 542 included two provisions that were troubling:
1) the Office of Insurance Regulation (OIR) was prevented from making sure the rates charged for policies were adequate to cover the risk of payouts. This could mean an insurance company could come in and undercut on prices, go belly up if a big storm hit, and the damaged property would be left on the beach with no funding to remove it or clean it up. (The Florida Insurance Guarantee Assoc. (FIGA) would cover claims up to a point, but not more than the capped amount.)
2) the bill also provided for unlimited “consent to write.” Consent to write is almost always used to allow customers to pay more for a policy than OIR will approve. But in this instance it could again have been used to undercharge leaving the environment damaged by construction where it should not have been allowed. Further, unlike most consent to write provisions, the original bill had no cap on the percentage of such policies that could be issued. (The cap is generally 5% of residential and 10% of commercial.)
In both cases, the worst damage would be caused by making it easier to get a mortgage to build close to the ocean because of the availability of unrealistically inexpensive flood insurance. The bill has been amended to eliminate both of these problems.
HB 325 / SB 586 Brownfields by Rep. Stone / Sen. Altman
Sierra Club negotiated with the Florida Brownfields Association over the language of their desired liability protection from property damage claims. After a number of back-and-forth emails, they offered language we accepted. Then at the last minute, and without any notice, a new amendment was introduced that grants a brownfield rehabilitator liability protection for property damage even if they fail to find and remediate contamination they should have found, they fail to clean up the contamination because of incompetence, or if the land use changes (e.g., originally cleaned up to standards for industrial property but the land use is changed to residential which has higher standards as small children may be exposed to contamination.)
Sierra Club Florida opposes the bill as amended, but the Senate bill is ready for a final vote on the floor and the House version has passed all its committees and will likely pass.
HB 353 / SB 772 Expressway Authorities by Rep. Nunez / Sen. Garcia
The genesis of this legislation is that the Miami Dade Expressway Authority (MDX) raised tolls and affected residents want them rolled back. As part of the bill to “rein in’ the Authority, the ability of MDX to fund green transportation projects was eliminated.
The bill has been amended to remove the provision affecting green transportation funding and instead, it provides new ethics standards for Expressway Authority members.
HB 601 / SB 536 Reclaimed Water by Rep. Ray / Sen. Simpson
This legislation provides for a study and is similar to the last section of the Springs bill by Sen. Dean (SB 1576.) The concern with the bill as originally filed was that it called for a “report on the expansion of the beneficial use of reclaimed water, including stormwater and excess surface water,” This language implied that stormwater and excess surface water were forms of reclaimed water. The environmental community was able to convince the sponsors to remove “including” so the study now looks at reclaimed water, at stormwater, and at excess surface water.
The bill has also been amended to require a minimum of two public meetings on the design of the study and an opportunity for public comment prior to the report’s release.
Springs bill (SB 1576) Overview
1576 provides:
- Funding
- Worst First approach
- Method to address Water Quantity
- Method to address Water Quality – identify sources of pollution and requiring action when funding is provided
- Lawn fertilizer
- Agricultural fertilizer
- Stormwater
- Septic tanks
- Wastewater treatment facilities
- Some deadlines
- Prohibited activities
- Study and develop new techniques and practices
Section 1
The bill devotes about 20% of total doc stamp revenues to springs. The funds are placed into the Ecosystem Management and Restoration TF.
MFLs
Sections 2, 3, and 8
The WMDs are required to complete MFLs for all covered springs, AND the standard is changed from "significantly harmful" to "harmful". Therefore, the MFLs should be set at a considerably higher level than is currently the case.
Similarly the requirement for recovery and protection strategies is tied to the "harm" standard.
The establishment of MFLs is allowed to be extended to 2020 (because NFWMD has done nothing and the assumption is that there should be five years of data for the MFL to be defensible… Of course, the opportunity for delay is available to all WMDs.)
If a recovery or prevention strategy is needed the strategy must include a listing of projects, their costs, and how much the WMD will put up (all but NFWMD and SRWMD must put up at least 25%.)
Section 4
Short Title “Florida Springs and Aquifer Protection Act” and creates a new “Part VIII” of chapter 373.
Section 5
Findings and intent
Importance of springs
Connection between water quantity and water quality
Importance of springsheds
Need to act
Intent to establish spring and aquifer protection program to be administered by DEP
Section 6
Definitions
Department – DEP
Local Government - county or municipal government whose jurisdiction includes an Outstanding Florida Spring or its Spring protection and management zone
OSTDS – uses the DOH language
Outstanding Florida Spring – all historic first magnitude springs and six others
Responsible management entity – legal entity established to provide localized nutrient management services for OSTDS or other nutrient sources (at local option)
Spring run
Springshed
Spring vent
Section 7
The bill requires DEP to delineate both springsheds and "springs protection and management zones" (SPAMZ). Most of the subsequent impact of the bill is tied to the SPAMZs.
Water Quality
Section 9
Protection of water quality
DEP to assess each Outstanding Florida Spring (OFS) for which an impairment determination has not yet been made
BMAPs to be established for all impaired OFS by 7/1/17
Spring Action Plan to be started by 7/1/14 (effective date of bill) for each OFS with a BMAP, in implemented recovery or prevention strategy, or when any of these is adopted, or when DEP projects the OFS will be impaired by nutrients within 20 years (borrowing from the recovery idea for MFLs and applying it to nutrient impairment)
Spring Action Plan (SAP) to be adopted in one year and updated annually
SAP to include all projects in BMAP in SPAMZ
All projects in regional water supply plan in SPAMZ
All projects in recovery or prevention strategy in SPAMZ
All projects proposed to or by DEP - These projects will be evaluated to see which best address “Worst First”
Estimates of nutrient loading reduction
Maps and legal descriptions of SPAMZs
The bill requires the DEP to examine each spring's SPAMZ and to identify and allocate each point source of pollution and each category of non-point pollution. (This determination will help in achieving the goal of "Worst First".)
(3) Requirements (more or less, the guts of the water quality parts of the bill start here)
(a) Localities in SPAMZs must meet or exceed the Model Ordinance for lawn fertilizer (Localities are NOT preempted from adopting more stringent regulations.)
(b) Wastewater treatment facilities to file a plan for compliance (they’ll have to upgrade to AWT) they can delay up to 2 years – they are required to submit a proposal for funding at least every two years (so they can’t sit on their hands and do nothing – when the money is available, the plan must be implemented)
(c) DEP, DOH, and local governments identify OSTDS and in one year the local gvts are to develop an OSTDS remediation plan which says which systems need to be upgraded, which need to connect to sewer, and which need no further action
(d) Remedial actions (each project) under this paragraph are not required unless DEP puts up the full amount requested for the project. (For OSTDS and small constrained counties DEP puts up 100%. For other projects, they put up 75%) When that funding is provided:
1. By 7/1/21 WWTF projects are to upgrade to AWT (3 mg /L Total Nitrogen, expressed as N, on an annual permitted basis)
2. By 7/1/19 Ag producers are to implement BMPs to achieve pollution levels established by DEP (DACS is to adopt the rules to implement this)
3. Within 6 months, local gvts are to start implementing the OSTDS remediation plan
Section 10
Funding
(1) All parties are to cooperate and submit project proposals to DEP in order to receive funding for up to 75% of cost (except for OSTDS and fiscally constrained counties which get 100%.)
(2) Doc stamp revenues go into the Ecosystem Management and Restoration TF. The legislature may use other sources of revenue to fund projects
(3) DEP may distribute moneys in the TF to any person who submits an approved project. Money will also be given for administrative costs
(4) Money not needed in the current year is to be deposited to the credit of the fund and may be invested for the purposes of the bill
(5) DEP to adopt rules to fund pilot projects for innovative technologies or practices
(6) By 12/31/14 DEP to develop and recommend rules to evaluate, select, and rank submitted projects (per 12 criteria designed to get to Worst First and “beest bang for the buck)
(7) Projects not in a Spring Action Plan are not eligible for funding
Section 11
Prohibited activities in a SPAMZ
No new municipal or industrial wastewater disposal systems, including rapid infiltration basins, unless they meet AWT standard or higher if required by DEP
No new OSTDS on lots of less than an acre (The homebuilders are very unhappy with this and say it amounts to a moratorium on building – they are very uneasy about what the size and boundaries of the SPAMZ will be.)
No new facilities for disposal of hazardous waste
No land application of septage
No CAFOs or intense cattle finishing and slaughter operations (But this subsection on CAFOS does not apply to those currently in operation or the expansion of existing ones in the future.)
Section 12
Rules
(1) DEP to model the evaluation, selection, and ranking process on the TMDL Water Quality Restoration Grants Rule
(2) DOH, DACS, and WMDs may adopt rules to administer this part
(3) (a) DACS is lead agency on reducing agricultural nonpoint sources and, with DEP, is to study new or revised BMPs – and if necessary to do rulemaking
(b) DACS to research and develop with IFAS additional nutrient management tools to be included by rule into revised BMPs
Section 13
Variances and exemptions
A person may apply to the appropriate agency or WMD for a variance or exemption from any requirement of this part. The variance or exemption may be granted if the agency or WMD receives reasonable assurance that the individual and cumulative impact will not contribute to violations of water quality standards, minimum flows, or minimum water levels in an Outstanding Florida Spring
Section 14
Responsible management entities (RMEs)
By 3/1/15 DEP is to report on the creation and operation of RMEs – various management models and their associated costs. RMEs not to be created without approval by DEP which will ensure they have policies at least as strict as state law
Section 15
Repeals 381.00651 F.S. (the terrible septic tank bill of 2012 that preempted septic tank regulations and installed a very low “ceiling”. That was also the bill that gave counties the ability to opt in or out of septic tank evaluation and inspections – all 19 counties opted out.)
Section 16
Comprehensive study of nutrient reduction and beneficial use of reclaimed water, stormwater, and excess surface water with subsequent report.
—David Cullen, Sierra Club Florida lobbyist