Skip to Navigation | Skip to Main Content | Skip to Site Map

MyFloridaHouse.gov | Flsenate.gov Archives | Mobile Site

Senate Tracker: Sign Up | Login

Senate Live by Watch Now

2011 Florida Statutes

Chapter 403
ENVIRONMENTAL CONTROL
CHAPTER 403
CHAPTER 403
ENVIRONMENTAL CONTROL
POLLUTION CONTROL
(ss. 403.011-403.44)
ELECTRICAL POWER PLANT AND TRANSMISSION LINE SITING
(ss. 403.501-403.539)
INTERSTATE ENVIRONMENTAL CONTROL COMPACT
(s. 403.60)
RESOURCE RECOVERY AND MANAGEMENT
(ss. 403.702-403.7721)
ENVIRONMENTAL REGULATION
(ss. 403.801-403.8163)
WATER SUPPLY; WATER TREATMENT PLANTS
(ss. 403.850-403.8911)
MISCELLANEOUS PROVISIONS
(ss. 403.90-403.9338)
NATURAL GAS TRANSMISSION PIPELINE SITING
(ss. 403.9401-403.9425)
EXPEDITED PERMITTING
(s. 403.973)
POLLUTION CONTROL
403.011 Short title.
403.021 Legislative declaration; public policy.
403.031 Definitions.
403.051 Meetings; hearings and procedure.
403.061 Department; powers and duties.
403.0611 Alternative methods of regulatory permitting; department duties.
403.0615 Water resources restoration and preservation.
403.062 Pollution control; underground, surface, and coastal waters.
403.0623 Environmental data; quality assurance.
403.0625 Environmental laboratory certification; water quality tests conducted by a certified laboratory.
403.063 Groundwater quality monitoring.
403.064 Reuse of reclaimed water.
403.0645 Reclaimed water use at state facilities.
403.067 Establishment and implementation of total maximum daily loads.
403.072 Pollution Prevention Act.
403.073 Pollution prevention; state goal; agency programs; public education.
403.074 Technical assistance by the department.
403.075 Legislative findings.
403.0752 Ecosystem management agreements.
403.081 Performance by other state agencies.
403.085 Sanitary sewage disposal units; advanced and secondary waste treatment; industrial waste treatment.
403.086 Sewage disposal facilities; advanced and secondary waste treatment.
403.08601 Leah Schad Memorial Ocean Outfall Program.
403.0861 Scallop processing; discharge standards.
403.0862 Discharge of waste from state groundwater cleanup operations to publicly owned treatment works.
403.087 Permits; general issuance; denial; revocation; prohibition; penalty.
403.0871 Florida Permit Fee Trust Fund.
403.0872 Operation permits for major sources of air pollution; annual operation license fee.
403.0873 Florida Air-Operation License Fee Account.
403.08735 Air emissions trading.
403.0875 Citation of rule.
403.0876 Permits; processing.
403.0877 Certification by professionals regulated by the Department of Business and Professional Regulation.
403.088 Water pollution operation permits; conditions.
403.0881 Wastewater or reuse or disposal systems or water treatment works; construction permits.
403.0882 Discharge of demineralization concentrate.
403.0885 Establishment of federally approved state National Pollutant Discharge Elimination System (NPDES) Program.
403.08852 Clarification of requirements under rule 62-302.520(2), F.A.C.
403.0891 State, regional, and local stormwater management plans and programs.
403.0893 Stormwater funding; dedicated funds for stormwater management.
403.0896 Training and assistance for stormwater management system personnel.
403.091 Inspections.
403.092 Package sewage treatment facilities; inspection.
403.111 Confidential records.
403.121 Enforcement; procedure; remedies.
403.131 Injunctive relief, remedies.
403.135 Persons who accept wastewater for spray irrigation; civil liability.
403.141 Civil liability; joint and several liability.
403.151 Compliance with rules or orders of department.
403.161 Prohibitions, violation, penalty, intent.
403.1651 Ecosystem Management and Restoration Trust Fund.
403.1655 Environmental short-term emergency response program.
403.1815 Construction of water distribution mains and sewage collection and transmission systems; local regulation.
403.182 Local pollution control programs.
403.1832 Department to accept federal aid; Grants and Donations Trust Fund.
403.1834 State bonds to finance or refinance facilities; exemption from taxation.
403.1835 Water pollution control financial assistance.
403.1837 Florida Water Pollution Control Financing Corporation.
403.1838 Small Community Sewer Construction Assistance Act.
403.191 Construction in relation to other law.
403.201 Variances.
403.231 Department of Legal Affairs to represent the state.
403.251 Safety clause.
403.281 Definitions; weather modification law.
403.291 Purpose of weather modification law.
403.301 Artificial weather modification operation; license required.
403.311 Application for weather modification licensing; fee.
403.321 Proof of financial responsibility.
403.331 Issuance of license; suspension or revocation; renewal.
403.341 Filing and publication of notice of intention to operate; limitation on area and time.
403.351 Contents of notice of intention.
403.361 Publication of notice of intention.
403.371 Proof of publication.
403.381 Record and reports of operations.
403.391 Emergency licenses.
403.401 Suspension or revocation of license.
403.411 Penalty.
403.412 Environmental Protection Act.
403.413 Florida Litter Law.
403.4131 Litter control.
403.41315 Comprehensive illegal dumping, litter, and marine debris control and prevention.
403.4132 Litter pickup and removal.
403.4133 Adopt-a-Shore Program.
403.4135 Litter receptacles.
403.414 Environmental award program.
403.415 Motor vehicle noise.
403.4151 Exempt motor vehicles.
403.4153 Federal preemption.
403.4154 Phosphogypsum management program.
403.4155 Phosphogypsum management; rulemaking authority.
403.42 Florida Clean Fuel Act.
403.44 Florida Climate Protection Act.
403.011 Short title.This act shall be known and cited as the “Florida Air and Water Pollution Control Act.”
History.s. 2, ch. 67-436.
403.021 Legislative declaration; public policy.
(1) The pollution of the air and waters of this state constitutes a menace to public health and welfare; creates public nuisances; is harmful to wildlife and fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water.
(2) It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife and fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water.
(3) It is declared to be the public policy of this state and the purpose of this act to achieve and maintain such levels of air quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state, and facilitate the enjoyment of the natural attractions of this state. In accordance with the public policy established herein, the Legislature further declares that the citizens of this state should be afforded reasonable protection from the dangers inherent in the release of toxic or otherwise hazardous vapors, gases, or highly volatile liquids into the environment.
(4) It is declared that local and regional air and water pollution control programs are to be supported to the extent practicable as essential instruments to provide for a coordinated statewide program of air and water pollution prevention, abatement, and control for the securing and maintenance of appropriate levels of air and water quality.
(5) It is hereby declared that the prevention, abatement, and control of the pollution of the air and waters of this state are affected with a public interest, and the provisions of this act are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.
(6) The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development.
(7) The Legislature further finds and declares that:
(a) Compliance with this law will require capital outlays of hundreds of millions of dollars for the installation of machinery, equipment, and facilities for the treatment of industrial wastes which are not productive assets and increased operating expenses to owners without any financial return and should be separately classified for assessment purposes.
(b) Industry should be encouraged to install new machinery, equipment, and facilities as technology in environmental matters advances, thereby improving the quality of the air and waters of the state and benefiting the citizens of the state without pecuniary benefit to the owners of industries; and the Legislature should prescribe methods whereby just valuation may be secured to such owners and exemptions from certain excise taxes should be offered with respect to such installations.
(c) Facilities as herein defined should be classified separately from other real and personal property of any manufacturing or processing plant or installation, as such facilities contribute only to general welfare and health and are assets producing no profit return to owners.
(d) In existing manufacturing or processing plants it is more difficult to obtain satisfactory results in treating industrial wastes than in new plants being now planned or constructed and that with respect to existing plants in many instances it will be necessary to demolish and remove substantial portions thereof and replace the same with new and more modern equipment in order to more effectively treat, eliminate, or reduce the objectionable characteristics of any industrial wastes and that such replacements should be classified and assessed differently from replacements made in the ordinary course of business.
(8) The Legislature further finds and declares that the public health, welfare, and safety may be affected by disease-carrying vectors and pests. The department shall assist all governmental units charged with the control of such vectors and pests. Furthermore, in reviewing applications for permits, the department shall consider the total well-being of the public and shall not consider solely the ambient pollution standards when exercising its powers, if there may be danger of a public health hazard.
(9)(a) The Legislature finds and declares that it is essential to preserve and maintain authorized water depth in the existing navigation channels, port harbors, turning basins, and harbor berths of this state in order to provide for the continued safe navigation of deepwater shipping commerce. The department shall recognize that maintenance of authorized water depths consistent with port master plans developed pursuant to s. 163.3178(2)(k) is an ongoing, continuous, beneficial, and necessary activity that is in the public interest; and it shall develop a regulatory process that shall enable the ports of this state to conduct such activities in an environmentally sound, safe, expeditious, and cost-efficient manner. It is the further intent of the Legislature that the permitting and enforcement of dredging, dredged-material management, and other related activities for Florida’s deepwater ports pursuant to this chapter and chapters 161, 253, and 373 shall be consolidated within the department’s Division of Water Resource Management and, with the concurrence of the affected deepwater port or ports, may be administered by a district office of the department or delegated to an approved local environmental program.
(b) The provisions of paragraph (a) apply only to the port waters, dredged-material management sites, port harbors, navigation channels, turning basins, and harbor berths used for deepwater commercial navigation in the ports of Jacksonville, Tampa, Port Everglades, Miami, Port Canaveral, Ft. Pierce, Palm Beach, Port Manatee, Port St. Joe, Panama City, St. Petersburg, Pensacola, Fernandina, and Key West.
(10) It is the policy of the state to ensure that the existing and potential drinking water resources of the state remain free from harmful quantities of contaminants. The department, as the state water quality protection agency, shall compile, correlate, and disseminate available information on any contaminant which endangers or may endanger existing or potential drinking water resources. It shall also coordinate its regulatory program with the regulatory programs of other agencies to assure adequate protection of the drinking water resources of the state.
(11) It is the intent of the Legislature that water quality standards be reasonably established and applied to take into account the variability occurring in nature. The department shall recognize the statistical variability inherent in sampling and testing procedures that are used to express water quality standards. The department shall also recognize that some deviations from water quality standards occur as the result of natural background conditions. The department shall not consider deviations from water quality standards to be violations when the discharger can demonstrate that the deviations would occur in the absence of any human-induced discharges or alterations to the water body.
History.s. 3, ch. 67-436; s. 1, ch. 78-98; ss. 1, 5, ch. 81-228; s. 4, ch. 84-79; s. 46, ch. 84-338; s. 11, ch. 85-269; s. 1, ch. 85-277; s. 8, ch. 86-186; s. 3, ch. 86-213; s. 143, ch. 96-320; s. 1004, ch. 97-103; s. 4, ch. 99-353.
403.031 Definitions.In construing this chapter, or rules and regulations adopted pursuant hereto, the following words, phrases, or terms, unless the context otherwise indicates, have the following meanings:
(1) “Contaminant” is any substance which is harmful to plant, animal, or human life.
(2) “Department” means the Department of Environmental Protection.
(3) “Effluent limitations” means any restriction established by the department on quantities, rates, or concentrations of chemical, physical, biological, or other constituents which are discharged from sources into waters of the state.
(4) “Installation” is any structure, equipment, or facility, or appurtenances thereto, or operation which may emit air or water contaminants in quantities prohibited by rules of the department.
(5) “Person” means the state or any agency or institution thereof, the United States or any agency or institution thereof, or any municipality, political subdivision, public or private corporation, individual, partnership, association, or other entity and includes any officer or governing or managing body of the state, the United States, any agency, any municipality, political subdivision, or public or private corporation.
(6) “Plant” is any unit operation, complex, area, or multiple of unit operations that produce, process, or cause to be processed any materials, the processing of which can, or may, cause air or water pollution.
(7) “Pollution” is the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or manmade or human-induced impairment of air or waters or alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which unreasonably interfere with the enjoyment of life or property, including outdoor recreation unless authorized by applicable law.
(8) “Pollution prevention” means the steps taken by a potential generator of contamination or pollution to eliminate or reduce the contamination or pollution before it is discharged into the environment. The term includes nonmandatory steps taken to use alternative forms of energy, conserve or reduce the use of energy, substitute nontoxic materials for toxic materials, conserve or reduce the use of toxic materials and raw materials, reformulate products, modify manufacturing or other processes, improve in-plant maintenance and operations, implement environmental planning before expanding a facility, and recycle toxic or other raw materials.
(9) “Sewerage system” means pipelines or conduits, pumping stations, and force mains and all other structures, devices, appurtenances, and facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal.
(10) “Source” is any and all points of origin of the item defined in subsection (1), whether privately or publicly owned or operated.
(11) “Treatment works” and “disposal systems” mean any plant or other works used for the purpose of treating, stabilizing, or holding wastes.
(12) “Wastes” means sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state.
(13) “Waters” include, but are not limited to, rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water. Underground waters include, but are not limited to, all underground waters passing through pores of rock or soils or flowing through in channels, whether manmade or natural. Solely for purposes of s. 403.0885, waters of the state also include navigable waters or waters of the contiguous zone as used in s. 502 of the Clean Water Act, as amended, 33 U.S.C. ss. 1251 et seq., as in existence on January 1, 1993, except for those navigable waters seaward of the boundaries of the state set forth in s. 1, Art. II of the State Constitution. Solely for purposes of this chapter, waters of the state also include the area bounded by the following:
(a) Commence at the intersection of State Road (SRD) 5 (U.S. 1) and the county line dividing Miami-Dade and Monroe Counties, said point also being the mean high-water line of Florida Bay, located in section 4, township 60 south, range 39 east of the Tallahassee Meridian for the point of beginning. From said point of beginning, thence run northwesterly along said SRD 5 to an intersection with the north line of section 18, township 58 south, range 39 east; thence run westerly to a point marking the southeast corner of section 12, township 58 south, range 37 east, said point also lying on the east boundary of the Everglades National Park; thence run north along the east boundary of the aforementioned Everglades National Park to a point marking the northeast corner of section 1, township 58 south, range 37 east; thence run west along said park to a point marking the northwest corner of said section 1; thence run northerly along said park to a point marking the northwest corner of section 24, township 57 south, range 37 east; thence run westerly along the south lines of sections 14, 15, and 16 to the southwest corner of section 16; thence leaving the Everglades National Park boundary run northerly along the west line of section 16 to the northwest corner of section 16; thence east along the northerly line of section 16 to a point at the intersection of the east one-half and west one-half of section 9; thence northerly along the line separating the east one-half and the west one-half of sections 9, 4, 33, and 28; thence run easterly along the north line of section 28 to the northeast corner of section 28; thence run northerly along the west line of section 22 to the northwest corner of section 22; thence easterly along the north line of section 22 to a point at the intersection of the east one-half and west one-half of section 15; thence run northerly along said line to the point of intersection with the north line of section 15; thence easterly along the north line of section 15 to the northeast corner of section 15; thence run northerly along the west lines of sections 11 and 2 to the northwest corner of section 2; thence run easterly along the north lines of sections 2 and 1 to the northeast corner of section 1, township 56 south, range 37 east; thence run north along the east line of section 36, township 55 south, range 37 east to the northeast corner of section 36; thence run west along the north line of section 36 to the northwest corner of section 36; thence run north along the west line of section 25 to the northwest corner of section 25; thence run west along the north line of section 26 to the northwest corner of section 26; thence run north along the west line of section 23 to the northwest corner of section 23; thence run easterly along the north line of section 23 to the northeast corner of section 23; thence run north along the west line of section 13 to the northwest corner of section 13; thence run east along the north line of section 13 to a point of intersection with the west line of the southeast one-quarter of section 12; thence run north along the west line of the southeast one-quarter of section 12 to the northwest corner of the southeast one-quarter of section 12; thence run east along the north line of the southeast one-quarter of section 12 to the point of intersection with the east line of section 12; thence run east along the south line of the northwest one-quarter of section 7 to the southeast corner of the northwest one-quarter of section 7; thence run north along the east line of the northwest one-quarter of section 7 to the point of intersection with the north line of section 7; thence run northerly along the west line of the southeast one-quarter of section 6 to the northwest corner of the southeast one-quarter of section 6; thence run east along the north lines of the southeast one-quarter of section 6 and the southwest one-quarter of section 5 to the northeast corner of the southwest one-quarter of section 5; thence run northerly along the east line of the northwest one-quarter of section 5 to the point of intersection with the north line of section 5; thence run northerly along the line dividing the east one-half and the west one-half of Lot 5 to a point intersecting the north line of Lot 5; thence run east along the north line of Lot 5 to the northeast corner of Lot 5, township 541/2 south, range 38 east; thence run north along the west line of section 33, township 54 south, range 38 east to a point intersecting the northwest corner of the southwest one-quarter of section 33; thence run easterly along the north line of the southwest one-quarter of section 33 to the northeast corner of the southwest one-quarter of section 33; thence run north along the west line of the northeast one-quarter of section 33 to a point intersecting the north line of section 33; thence run easterly along the north line of section 33 to the northeast corner of section 33; thence run northerly along the west line of section 27 to a point intersecting the northwest corner of the southwest one-quarter of section 27; thence run easterly to the northeast corner of the southwest one-quarter of section 27; thence run northerly along the west line of the northeast one-quarter of section 27 to a point intersecting the north line of section 27; thence run west along the north line of section 27 to the northwest corner of section 27; thence run north along the west lines of sections 22 and 15 to the northwest corner of section 15; thence run easterly along the north lines of sections 15 and 14 to the point of intersection with the L-31N Levee, said intersection located near the southeast corner of section 11, township 54 south, range 38 east; thence run northerly along Levee L-31N crossing SRD 90 (U.S. 41 Tamiami Trail) to an intersection common to Levees L-31N, L-29, and L-30, said intersection located near the southeast corner of section 2, township 54 south, range 38 east; thence run northeasterly, northerly, and northeasterly along Levee L-30 to a point of intersection with the Miami-Dade/Broward Levee, said intersection located near the northeast corner of section 17, township 52 south, range 39 east; thence run due east to a point of intersection with SRD 27 (Krome Ave.); thence run northeasterly along SRD 27 to an intersection with SRD 25 (U.S. 27), said intersection located in section 3, township 52 south, range 39 east; thence run northerly along said SRD 25, entering into Broward County, to an intersection with SRD 84 at Andytown; thence run southeasterly along the aforementioned SRD 84 to an intersection with the southwesterly prolongation of Levee L-35A, said intersection being located in the northeast one-quarter of section 5, township 50 south, range 40 east; thence run northeasterly along Levee L-35A to an intersection of Levee L-36, said intersection located near the southeast corner of section 12, township 49 south, range 40 east; thence run northerly along Levee L-36, entering into Palm Beach County, to an intersection common to said Levees L-36, L-39, and L-40, said intersection located near the west quarter corner of section 19, township 47 south, range 41 east; thence run northeasterly, easterly, and northerly along Levee L-40, said Levee L-40 being the easterly boundary of the Loxahatchee National Wildlife Refuge, to an intersection with SRD 80 (U.S. 441), said intersection located near the southeast corner of section 32, township 43 south, range 40 east; thence run westerly along the aforementioned SRD 80 to a point marking the intersection of said road and the northeasterly prolongation of Levee L-7, said Levee L-7 being the westerly boundary of the Loxahatchee National Wildlife Refuge; thence run southwesterly and southerly along said Levee L-7 to an intersection common to Levees L-7, L-15 (Hillsborough Canal), and L-6; thence run southwesterly along Levee L-6 to an intersection common to Levee L-6, SRD 25 (U.S. 27), and Levee L-5, said intersection being located near the northwest corner of section 27, township 47 south, range 38 east; thence run westerly along the aforementioned Levee L-5 to a point intersecting the east line of range 36 east; thence run northerly along said range line to a point marking the northeast corner of section 1, township 47 south, range 36 east; thence run westerly along the north line of township 47 south, to an intersection with Levee L-23/24 (Miami Canal); thence run northwesterly along the Miami Canal Levee to a point intersecting the north line of section 22, township 46 south, range 35 east; thence run westerly to a point marking the northwest corner of section 21, township 46 south, range 35 east; thence run southerly to the southwest corner of said section 21; thence run westerly to a point marking the northwest corner of section 30, township 46 south, range 35 east, said point also being on the line dividing Palm Beach and Hendry Counties; from said point, thence run southerly along said county line to a point marking the intersection of Broward, Hendry, and Collier Counties, said point also being the northeast corner of section 1, township 49 south, range 34 east; thence run westerly along the line dividing Hendry and Collier Counties and continuing along the prolongation thereof to a point marking the southwest corner of section 36, township 48 south, range 29 east; thence run southerly to a point marking the southwest corner of section 12, township 49 south, range 29 east; thence run westerly to a point marking the southwest corner of section 10, township 49 south, range 29 east; thence run southerly to a point marking the southwest corner of section 15, township 49 south, range 29 east; thence run westerly to a point marking the northwest corner of section 24, township 49 south, range 28 east, said point lying on the west boundary of the Big Cypress Area of Critical State Concern as described in rule 28-25.001, Florida Administrative Code; thence run southerly along said boundary crossing SRD 84 (Alligator Alley) to a point marking the southwest corner of section 24, township 50 south, range 28 east; thence leaving the aforementioned west boundary of the Big Cypress Area of Critical State Concern run easterly to a point marking the northeast corner of section 25, township 50 south, range 28 east; thence run southerly along the east line of range 28 east to a point lying approximately 0.15 miles south of the northeast corner of section 1, township 52 south, range 28 east; thence run southwesterly 2.4 miles more or less to an intersection with SRD 90 (U.S. 41 Tamiami Trail), said intersection lying 1.1 miles more or less west of the east line of range 28 east; thence run northwesterly and westerly along SRD 90 to an intersection with the west line of section 10, township 52 south, range 28 east; thence leaving SRD 90 run southerly to a point marking the southwest corner of section 15, township 52 south, range 28 east; thence run westerly crossing the Faka Union Canal 0.6 miles more or less to a point; thence run southerly and parallel to the Faka Union Canal to a point located on the mean high-water line of Faka Union Bay; thence run southeasterly along the mean high-water line of the various bays, rivers, inlets, and streams to the point of beginning.
(b) The area bounded by the line described in paragraph (a) generally includes those waters to be known as waters of the state. The landward extent of these waters shall be determined by the delineation methodology ratified in s. 373.4211. Any waters which are outside the general boundary line described in paragraph (a) but which are contiguous thereto by virtue of the presence of a wetland, watercourse, or other surface water, as determined by the delineation methodology ratified in s. 373.4211, shall be a part of this water body. Any areas within the line described in paragraph (a) which are neither a wetland nor surface water, as determined by the delineation methodology ratified in s. 373.4211, shall be excluded therefrom. If the Florida Environmental Regulation Commission designates the waters within the boundaries an Outstanding Florida Water, waters outside the boundaries shall not be included as part of such designation unless a hearing is held pursuant to notice in each appropriate county and the boundaries of such lands are specifically considered and described for such designation.
(14) “State water resource implementation rule” means the rule authorized by s. 373.036, which sets forth goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources, based on statutory policies and directives. The waters of the state are among its most basic resources. Such waters should be managed to conserve and protect water resources and to realize the full beneficial use of these resources.
(15) “Stormwater management program” means the institutional strategy for stormwater management, including urban, agricultural, and other stormwater.
(16) “Stormwater management system” means a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation and water pollution or otherwise affect the quantity and quality of discharges from the system.
(17) “Stormwater utility” means the funding of a stormwater management program by assessing the cost of the program to the beneficiaries based on their relative contribution to its need. It is operated as a typical utility which bills services regularly, similar to water and wastewater services.
(18) “Watershed” means the land area which contributes to the flow of water into a receiving body of water.
(19) “Regulated air pollutant” means any pollutant regulated under the federal Clean Air Act.
(20) “Electrical power plant” means, for purposes of this part of this chapter, any electrical generating facility that uses any process or fuel and that is owned or operated by an electric utility, as defined in s. 403.503(14), and includes any associated facility that directly supports the operation of the electrical power plant.
(21) “Total maximum daily load” is defined as the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated.
History.s. 4, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 71-36; s. 2, ch. 71-137; s. 153, ch. 71-377; s. 1, ch. 73-46; s. 112, ch. 73-333; ss. 1, 2, ch. 74-133; s. 1, ch. 77-174; s. 72, ch. 79-65; s. 13, ch. 84-79; s. 1, ch. 89-143; s. 30, ch. 89-279; s. 22, ch. 91-305; s. 1, ch. 92-132; s. 1, ch. 93-94; ss. 35, 69, ch. 93-213; ss. 12, 13, ch. 94-122; s. 355, ch. 94-356; s. 7, ch. 96-370; s. 1005, ch. 97-103; s. 24, ch. 97-160; s. 2, ch. 99-223; s. 9, ch. 99-353; s. 42, ch. 2001-62; s. 105, ch. 2008-4; s. 15, ch. 2008-150; s. 64, ch. 2008-227.
403.051 Meetings; hearings and procedure.
(1) The department shall cause a transcript of the proceedings at all meetings to be made.
(2)(a) Any department planning, permitting, design, construction, modification, or operating standards, criteria, and requirements for treatment works, disposal systems, and sewerage systems for wastes from any source shall be promulgated as a rule or regulation.
(b) The department shall not withhold the issuance of a permit to consider matters not addressed by the permit application or to consider standards, criteria, and requirements not adopted as required by paragraph (a).
History.s. 6, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 70-84; s. 2, ch. 71-137; s. 1, ch. 71-138; s. 154, ch. 71-377; s. 1, ch. 72-223; s. 1, ch. 74-308; s. 14, ch. 78-95; s. 58, ch. 83-218; s. 70, ch. 93-213.
403.061 Department; powers and duties.The department shall have the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it and, for this purpose, to:
(1) Approve and promulgate current and long-range plans developed to provide for air and water quality control and pollution abatement.
(2) Hire only such employees as may be necessary to effectuate the responsibilities of the department.
(3) Utilize the facilities and personnel of other state agencies, including the Department of Health, and delegate to any such agency any duties and functions as the department may deem necessary to carry out the purposes of this act.
(4) Secure necessary scientific, technical, research, administrative, and operational services by interagency agreement, by contract, or otherwise. All state agencies, upon direction of the department, shall make these services and facilities available.
(5) Accept state appropriations and loans and grants from the Federal Government and from other sources, public or private, which loans and grants shall not be expended for other than the purposes of this act.
(6) Exercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.
(7) Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this act. Any rule adopted pursuant to this act shall be consistent with the provisions of federal law, if any, relating to control of emissions from motor vehicles, effluent limitations, pretreatment requirements, or standards of performance. No county, municipality, or political subdivision shall adopt or enforce any local ordinance, special law, or local regulation requiring the installation of Stage II vapor recovery systems, as currently defined by department rule, unless such county, municipality, or political subdivision is or has been in the past designated by federal regulation as a moderate, serious, or severe ozone nonattainment area. Rules adopted pursuant to this act shall not require dischargers of waste into waters of the state to improve natural background conditions. Discharges from steam electric generating plants existing or licensed under this chapter on July 1, 1984, shall not be required to be treated to a greater extent than may be necessary to assure that the quality of nonthermal components of discharges from nonrecirculated cooling water systems is as high as the quality of the makeup waters; that the quality of nonthermal components of discharges from recirculated cooling water systems is no lower than is allowed for blowdown from such systems; or that the quality of noncooling system discharges which receive makeup water from a receiving body of water which does not meet applicable department water quality standards is as high as the quality of the receiving body of water. The department may not adopt standards more stringent than federal regulations, except as provided in s. 403.804.
(8) Issue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings.
(9) Adopt a comprehensive program for the prevention, control, and abatement of pollution of the air and waters of the state, and from time to time review and modify such program as necessary.
(10) Develop a comprehensive program for the prevention, abatement, and control of the pollution of the waters of the state. In order to effect this purpose, a grouping of the waters into classes may be made in accordance with the present and future most beneficial uses. Such classifications may from time to time be altered or modified. However, before any such classification is made, or any modification made thereto, public hearings shall be held by the department.
(11) Establish ambient air quality and water quality standards for the state as a whole or for any part thereof, and also standards for the abatement of excessive and unnecessary noise. The department is authorized to establish reasonable zones of mixing for discharges into waters.
(a) When a receiving body of water fails to meet a water quality standard for pollutants set forth in department rules, a steam electric generating plant discharge of pollutants that is existing or licensed under this chapter on July 1, 1984, may nevertheless be granted a mixing zone, provided that:
1. The standard would not be met in the water body in the absence of the discharge;
2. The discharge is in compliance with all applicable technology-based effluent limitations;
3. The discharge does not cause a measurable increase in the degree of noncompliance with the standard at the boundary of the mixing zone; and
4. The discharge otherwise complies with the mixing zone provisions specified in department rules.
(b) No mixing zone for point source discharges shall be permitted in Outstanding Florida Waters except for:
1. Sources that have received permits from the department prior to April 1, 1982, or the date of designation, whichever is later;
2. Blowdown from new power plants certified pursuant to the Florida Electrical Power Plant Siting Act;
3. Discharges of water necessary for water management purposes which have been approved by the governing board of a water management district and, if required by law, by the secretary; and
4. The discharge of demineralization concentrate which has been determined permittable under s. 403.0882 and which meets the specific provisions of s. 403.0882(4)(a) and (b), if the proposed discharge is clearly in the public interest.
(c) The department, by rule, shall establish water quality criteria for wetlands which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

Nothing in this act shall be construed to invalidate any existing department rule relating to mixing zones. The department shall cooperate with the Department of Highway Safety and Motor Vehicles in the development of regulations required by s. 316.272(1).

(12)(a) Cause field studies to be made and samples to be taken out of the air and from the waters of the state periodically and in a logical geographic manner so as to determine the levels of air quality of the air and water quality of the waters of the state.
(b) Determine the source of the pollution whenever a study is made or a sample collected which proves to be below the air or water quality standard set for air or water.
(13) Require persons engaged in operations which may result in pollution to file reports which may contain information relating to locations, size of outlet, height of outlet, rate and period of emission, and composition and concentration of effluent and such other information as the department shall prescribe to be filed relative to pollution.
(14) Establish a permit system whereby a permit may be required for the operation, construction, or expansion of any installation that may be a source of air or water pollution and provide for the issuance and revocation of such permits and for the posting of an appropriate bond to operate.
(a) Notwithstanding any other provision of this chapter, the department may authorize, by rule, the Department of Transportation to perform any activity requiring a permit from the department covered by this chapter, upon certification by the Department of Transportation that it will meet all requirements imposed by statute, rule, or standard for environmental control and protection as such statute, rule, or standard applies to a governmental program. To this end, the department may accept such certification of compliance for programs of the Department of Transportation, may conduct investigations for compliance, and, if a violation is found to exist, may take all necessary enforcement action pertaining thereto, including, but not limited to, the revocation of certification. The authorization shall be by rule of the department, shall be limited to the maintenance, repair, or replacement of existing structures, and shall be conditioned upon compliance by the Department of Transportation with specific guidelines or requirements which are set forth in the formal acceptance and deemed necessary by the department to assure future compliance with this chapter and applicable department rules. The failure of the Department of Transportation to comply with any provision of the written acceptance shall constitute grounds for its revocation by the department.
(b) The provisions of chapter 120 shall be accorded any person when substantial interests will be affected by an activity proposed to be conducted by the Department of Transportation pursuant to its certification and the acceptance of the department. If a proceeding is conducted pursuant to ss. 120.569 and 120.57, the department may intervene as a party. Should an administrative law judge of the Division of Administrative Hearings of the Department of Management Services submit a recommended order pursuant to ss. 120.569 and 120.57, the department shall issue a final department order adopting, rejecting, or modifying the recommended order pursuant to such action.
(15) Consult with any person proposing to construct, install, or otherwise acquire a pollution control device or system concerning the efficacy of such device or system, or the pollution problem which may be related to the source, device, or system. Nothing in any such consultation shall be construed to relieve any person from compliance with this act, rules and regulations of the department, or any other provision of law.
(16) Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this act.
(17) Encourage local units of government to handle pollution problems within their respective jurisdictions on a cooperative basis and provide technical and consultative assistance therefor.
(18) Encourage and conduct studies, investigations, and research relating to pollution and its causes, effects, prevention, abatement, and control.
(19) Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this state and the several parts thereof and make recommendations to appropriate public and private bodies with respect thereto.
(20) Collect and disseminate information and conduct educational and training programs relating to pollution.
(21) Advise, consult, cooperate, and enter into agreements with other agencies of the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department. However, the secretary of the department shall not enter into any interstate agreement relating to the transport of ozone precursor pollutants, nor modify its rules based upon a recommendation from the Ozone Transport Assessment Group or any other such organization that is not an official subdivision of the United States Environmental Protection Agency but which studies issues related to the transport of ozone precursor pollutants, without prior review and specific legislative approval.
(22) Adopt, modify, and repeal rules governing the specifications, construction, and maintenance of industrial reservoirs, dams, and containers which store or retain industrial wastes of a deleterious nature.
(23) Adopt rules and regulations to ensure that no detergents are sold in Florida after December 31, 1972, which are reasonably found to have a harmful or deleterious effect on human health or on the environment. Any regulations adopted pursuant to this subsection shall apply statewide. Subsequent to the promulgation of such rules and regulations, no county, municipality, or other local political subdivision shall adopt or enforce any local ordinance, special law, or local regulation governing detergents which is less stringent than state law or regulation. Regulations, ordinances, or special acts adopted by a county or municipality governing detergents shall be subject to approval by the department, except that regulations, ordinances, or special acts adopted by any county or municipality with a local pollution control program approved pursuant to s. 403.182 shall be approved as an element of the local pollution control program.
(24)(a) Establish a permit system to provide for spoil site approval, as may be requested and required by local governmental agencies as defined in 1s. 403.1822(3), or mosquito control districts as defined in s. 388.011(5), to facilitate these agencies in providing spoil sites for the deposit of spoil from maintenance dredging of navigation channels, port harbors, turning basins, and harbor berths, as part of a federal project, when the agency is acting as sponsor of a contemplated dredge and fill operation involving an established navigation channel, harbor, turning basin, or harbor berth. A spoil site approval granted to the agency shall be granted for a period of 10 to 25 years when such site is not inconsistent with an adopted local governmental comprehensive plan and the requirements of this chapter. The department shall periodically review each permit to determine compliance with the terms and conditions of the permit. Such review shall be conducted at least once every 10 years.
(b) This subsection applies only to those maintenance dredging operations permitted after July 1, 1980, where the United States Army Corps of Engineers is the prime dredge and fill agent and the local governmental agency is acting as sponsor for the operation, and does not require the redesignation of currently approved spoil sites under such previous operations.
(25) Establish and administer a program for the restoration and preservation of bodies of water within the state. The department shall have the power to acquire lands, to cooperate with other applicable state or local agencies to enhance existing public access to such bodies of water, and to adopt all rules necessary to accomplish this purpose.
(26)(a) Develop standards and criteria for waters used for deepwater shipping which standards and criteria consider existing water quality; appropriate mixing zones and other requirements for maintenance dredging in previously constructed deepwater navigation channels, port harbors, turning basins, or harbor berths; and appropriate mixing zones for disposal of spoil material from dredging and, where necessary, develop a separate classification for such waters. Such classification, standards, and criteria shall recognize that the present dedicated use of these waters is for deepwater commercial navigation.
(b) The provisions of paragraph (a) apply only to the port waters, spoil disposal sites, port harbors, navigation channels, turning basins, and harbor berths used for deepwater commercial navigation in the ports of Jacksonville, Tampa, Port Everglades, Miami, Port Canaveral, Ft. Pierce, Palm Beach, Port Manatee, Port St. Joe, Panama City, St. Petersburg, Port Bartow, Florida Power Corporation’s Crystal River Canal, Boca Grande, Green Cove Springs, and Pensacola.
(27) Establish rules which provide for a special category of water bodies within the state, to be referred to as “Outstanding Florida Waters,” which water bodies shall be worthy of special protection because of their natural attributes. Nothing in this subsection shall affect any existing rule of the department.
(28) Perform any other act necessary to control and prohibit air and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rulemaking powers, to any state agency now or hereinafter established.
(29) Adopt by rule special criteria to protect Class II and Class III shellfish harvesting waters. Such rules may include special criteria for approving docking facilities that have 10 or fewer slips if the construction and operation of such facilities will not result in the closure of shellfish waters.
(30) Establish requirements by rule that reasonably protect the public health and welfare from electric and magnetic fields associated with existing 230 kV or greater electrical transmission lines, new 230 kV and greater electrical transmission lines for which an application for certification under the Florida Electric Transmission Line Siting Act, ss. 403.52-403.5365, is not filed, new or existing electrical transmission or distribution lines with voltage less than 230 kV, and substation facilities. Notwithstanding any other provision in this chapter or any other law of this state or political subdivision thereof, the department shall have exclusive jurisdiction in the regulation of electric and magnetic fields associated with all electrical transmission and distribution lines and substation facilities. However, nothing herein shall be construed as superseding or repealing the provisions of s. 403.523(1) and (10).
(31) Adopt rules necessary to obtain approval from the United States Environmental Protection Agency to administer the Federal National Pollution Discharge Elimination System (NPDES) permitting program in Florida under ss. 318, 402, and 405 of the Federal Clean Water Act, Pub. L. No. 92-500, as amended. This authority shall be implemented consistent with the provisions of part II, which shall be applicable to facilities certified thereunder. The department shall establish all rules, standards, and requirements that regulate the discharge of pollutants into waters of the United States as defined by and in a manner consistent with federal regulations; provided, however, that the department may adopt a standard that is stricter or more stringent than one set by the United States Environmental Protection Agency if approved by the Governor and Cabinet in accordance with the procedures of s. 403.804(2).
(32) Coordinate the state’s stormwater program.
(33) Establish and administer programs providing appropriate incentives that have the following goals, in order of importance:
(a) Preventing and reducing pollution at its source.
(b) Recycling contaminants that have the potential to pollute.
(c) Treating and neutralizing contaminants that are difficult to recycle.
(d) Disposing of contaminants only after other options have been used to the greatest extent practicable.
(34) Adopt rules which may include stricter permitting and enforcement provisions within Outstanding Florida Waters, aquatic preserves, areas of critical state concern, and areas subject to chapter 380 resource management plans adopted by rule by the Administration Commission, when the plans for an area include waters that are particularly identified as needing additional protection, which provisions are not inconsistent with the applicable rules adopted for the management of such areas by the department and the Governor and Cabinet.
(35) Exercise the duties, powers, and responsibilities required of the state under the federal Clean Air Act, 42 U.S.C. ss. 7401 et seq. The department shall implement the programs required under that act in conjunction with its other powers and duties. Nothing in this subsection shall be construed to repeal or supersede any of the department’s existing rules.
(36) Establish statewide standards for persons engaged in determining visible air emissions and to require these persons to obtain training to meet such standards.
(37) Provide a supplemental permitting process for the issuance of a joint coastal permit pursuant to s. 161.055 or environmental resource permit pursuant to part IV of chapter 373, to a port listed in s. 311.09(1), for maintenance dredging and the management of dredged materials from maintenance dredging of all navigation channels, port harbors, turning basins, and harbor berths. Such permit shall be issued for a period of 5 years and shall be annually extended for an additional year if the port is in compliance with all permit conditions at the time of extension. The department is authorized to adopt rules to implement this subsection.
(38) Provide a supplemental permitting process for the issuance of a conceptual joint coastal permit pursuant to s. 161.055 or environmental resource permit pursuant to part IV of chapter 373, to a port listed in s. 311.09(1), for dredging and the management of materials from dredging and for other related activities necessary for development, including the expansion of navigation channels, port harbors, turning basins, harbor berths, and associated facilities. Such permit shall be issued for a period of up to 15 years. The department is authorized to adopt rules to implement this subsection.
(39) Enter into a memorandum of agreement with the Florida Inland Navigation District and the West Coast Inland Navigation District, or their successor agencies, to provide a supplemental process for issuance of joint coastal permits pursuant to s. 161.055 or environmental resource permits pursuant to part IV of chapter 373 for regional waterway management activities, including, but not limited to, maintenance dredging, spoil disposal, public recreation, inlet management, beach nourishment, and environmental protection directly related to public navigation and the construction, maintenance, and operation of Florida’s inland waterways. The department is authorized to adopt rules to implement this subsection.
(40) Maintain a list of projects or activities, including mitigation banks, which applicants may consider when developing proposals in order to meet the mitigation or public interest requirements of this chapter, chapter 253, or chapter 373. The contents of such list are not a rule as defined in chapter 120, and listing a specific project or activity does not imply department approval for such project or activity. Each county government is encouraged to develop an inventory of projects or activities for inclusion on the list by obtaining input from local stakeholders in the public, private, and nonprofit sectors, including local governments, port authorities, marine contractors, other representatives of the marine construction industry, environmental or conservation organizations, and other interested parties. A county may establish dedicated trust funds for depositing public interest donations to be used for future public interest projects, including improving on-water law enforcement capabilities.
2(41) Expand the use of online self-certification for appropriate exemptions and general permits issued by the department or the water management districts if such expansion is economically feasible. Notwithstanding any other provision of law, a local government may not specify the method or form for documenting that a project qualifies for an exemption or meets the requirements for a permit under chapter 161, chapter 253, chapter 373, or this chapter. This limitation of local government authority extends to Internet-based department programs that provide for self-certification.
(42) Serve as the state’s single point of contact for performing the responsibilities described in Presidential Executive Order 12372, including administration and operation of the Florida State Clearinghouse. The Florida State Clearinghouse shall be responsible for coordinating interagency reviews of the following: federal activities and actions subject to the federal consistency requirements of s. 307 of the Coastal Zone Management Act; documents prepared pursuant to the National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq., and the Outer Continental Shelf Lands Act, 43 U.S.C. ss. 1331 et seq.; applications for federal funding pursuant to s. 216.212; and other notices and information regarding federal activities in the state, as appropriate. The Florida State Clearinghouse shall ensure that state agency comments and recommendations on the environmental, social, and economic impact of proposed federal actions are communicated to federal agencies, applicants, local governments, and interested parties.

The department shall implement such programs in conjunction with its other powers and duties and shall place special emphasis on reducing and eliminating contamination that presents a threat to humans, animals or plants, or to the environment.

History.s. 7, ch. 67-436; ss. 19, 26, 35, ch. 69-106; s. 1, ch. 71-35; s. 2, ch. 71-36; s. 3, ch. 72-39; s. 1, ch. 72-53; s. 113, ch. 73-333; s. 3, ch. 74-133; s. 1, ch. 77-21; s. 137, ch. 77-104; s. 268, ch. 77-147; s. 2, ch. 77-369; s. 14, ch. 78-95; s. 2, ch. 78-437; s. 73, ch. 79-65; s. 1, ch. 79-130; s. 96, ch. 79-164; s. 160, ch. 79-400; s. 1, ch. 80-66; ss. 2, 5, ch. 81-228; s. 5, ch. 82-27; s. 1, ch. 82-79; s. 2, ch. 82-80; s. 66, ch. 83-310; s. 5, ch. 84-79; s. 1, ch. 84-338; s. 1, ch. 85-296; s. 5, ch. 85-345; s. 5, ch. 86-173; s. 52, ch. 86-186; s. 22, ch. 88-393; s. 31, ch. 89-279; s. 54, ch. 90-331; s. 24, ch. 91-305; s. 23, ch. 92-203; s. 127, ch. 92-279; s. 55, ch. 92-326; s. 36, ch. 93-213; s. 5, ch. 94-311; s. 1, ch. 94-321; s. 356, ch. 94-356; s. 55, ch. 95-144; s. 144, ch. 96-320; s. 8, ch. 96-370; s. 129, ch. 96-410; s. 26, ch. 97-160; s. 100, ch. 98-200; s. 3, ch. 98-326; s. 155, ch. 99-8; s. 2, ch. 2001-188; s. 1, ch. 2001-224; s. 8, ch. 2002-275; s. 68, ch. 2006-230; s. 42, ch. 2010-147; s. 4, ch. 2010-201; s. 2, ch. 2010-208.
1Note.Repealed by s. 18, ch. 2001-270.
2Note.As enacted by s. 42, ch. 2010-147. For a description of multiple acts in the same session affecting a statutory provision, see preface to the Florida Statutes, “Statutory Construction.” Subsection (41) was also added by s. 2, ch. 2010-208, and that version reads:

(41) Expand the use of online self-certification and other forms of online authorization for appropriate exemptions, general permits, and individual permits by the department and the water management districts if such expansion is economically feasible. The department shall report on the progress of these activities to the President of the Senate, the Speaker of the House of Representatives, and the Legislative Committee on Intergovernmental Relations by February 15, 2011. Notwithstanding any other provision of law, a local government may not specify the method or form for documenting that a project meets the requirements for authorization under chapter 161, chapter 253, chapter 373, or this chapter. This includes Internet-based department programs that provide for self-certification.

403.0611 Alternative methods of regulatory permitting; department duties.The Department of Environmental Protection is directed to explore alternatives to traditional methods of regulatory permitting, provided that such alternative methods will not allow a material increase in pollution emissions or discharges. Working with industry, business associations, other government agencies, and interested parties, the department is directed to consider specific limited pilot projects to test new compliance measures. These measures should include, but not be limited to, reducing transaction costs for business and government and providing economic incentives for emissions reductions. The department shall report to the Legislature prior to implementation of a pilot project initiated pursuant to this section.
History.s. 12, ch. 2000-304.
403.0615 Water resources restoration and preservation.
(1) This section may be cited as the “Water Resources Restoration and Preservation Act.”
(2) The department shall establish a program to assist in the restoration and preservation of bodies of water and to enhance existing public access when deemed necessary for the enhancement of the restoration effort. This program shall be funded from the General Revenue Fund, from funds available from the Ecosystem Management and Restoration Trust Fund, and from available federal moneys.
(3) The department shall adopt, by rule, criteria for the allocation of restoration and preservation funds. Such criteria shall include, but not be limited to, the following:
(a) The degree of water quality degradation;
(b) The degree to which sources of pollution which have contributed to the need for restoration or preservation have been abated;
(c) The public uses which can be made of the subject waters;
(d) The ecological value of the subject waters in relation to other waters proposed for restoration and preservation;
(e) The implementation by local government of regulatory or management programs to prevent further and subsequent degradation of the subject waters; and
(f) The commitment of local government resources to assist in the proposed restoration and preservation.
(4) The provisions of this act are for the benefit of the public and shall be liberally construed to accomplish the purposes set forth in this act.
History.ss. 1, 4, 5, ch. 77-369; s. 2, ch. 79-130; s. 25, ch. 93-120; s. 357, ch. 94-356; s. 59, ch. 96-321.
403.062 Pollution control; underground, surface, and coastal waters.The department and its agents shall have general control and supervision over underground water, lakes, rivers, streams, canals, ditches, and coastal waters under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interest of the public or persons lawfully using them.
History.s. 2, ch. 29834, 1955; ss. 26, 35, ch. 69-106.
Note.Former s. 381.43; s. 381.251.
403.0623 Environmental data; quality assurance.The department must establish, by rule, appropriate quality assurance requirements for environmental data submitted to the department and the criteria by which environmental data may be rejected by the department. The department may adopt and enforce rules to establish data quality objectives and specify requirements for training of laboratory and field staff, sample collection methodology, proficiency testing, and audits of laboratory and field sampling activities. Such rules may be in addition to any laboratory certification provisions under ss. 403.0625 and 403.863.
History.s. 1, ch. 98-43; s. 16, ch. 2008-150.
403.0625 Environmental laboratory certification; water quality tests conducted by a certified laboratory.
(1) To assure the acceptable quality, reliability, and validity of testing results, the department and the Department of Health shall jointly establish criteria for certification of laboratories that perform analyses of environmental samples that are not covered by the provisions in s. 403.863. The Department of Health shall have the responsibility for the operation and implementation of such laboratory certification. The Department of Health may charge and collect fees for the certification of such laboratories. The fee schedule shall be based on the number of analytical functions for which certification is sought. Such fees shall be sufficient to meet the costs incurred by the Department of Health in administering this program in coordination with the department. All fees collected pursuant to this section shall be deposited in a trust fund to be administered by the Department of Health and shall be used only for the purposes of this section.
(2) An environmental water quality test to determine the quality of the effluent of a domestic wastewater facility must be conducted by a laboratory certified under this section if such test results are to be submitted to the department or a local pollution control program pursuant to s. 403.182.
(3) The Department of Health may adopt and enforce rules to administer this section, including, but not limited to, definitions of terms, certified laboratory personnel requirements, sample collection methodology and proficiency testing, the format and frequency of reports, onsite inspections of laboratories, and quality assurance.
(4) The following acts constitute grounds for which the disciplinary actions specified in subsection (5) may be taken:
(a) Making false statements on an application or on any document associated with certification.
(b) Making consistent errors in analyses or erroneous reporting.
(c) Permitting personnel who are not qualified, as required by rules of the Department of Health, to perform analyses.
(d) Falsifying the results of analyses.
(e) Failing to employ approved laboratory methods in performing analyses as outlined in rules of the Department of Health.
(f) Failing to properly maintain facilities and equipment according to the laboratory’s quality assurance plan.
(g) Failing to report analytical test results or maintain required records of test results as outlined in rules of the Department of Health.
(h) Failing to participate successfully in a performance evaluation program approved by the Department of Health.
(i) Violating any provision of this section or of the rules adopted under this section.
(j) Falsely advertising services or credentials.
(k) Failing to pay fees for initial certification or renewal certification or to pay inspection expenses incurred by the Department of Health.
(l) Failing to report any change of an item included in the initial or renewal certification application.
(m) Refusing to allow representatives of the department or the Department of Health to inspect a laboratory and its records during normal business hours.
(5) When the Department of Health finds any applicant or certificateholder guilty of any of the grounds set forth in subsection (4), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for certification.
(b) Revocation or suspension of certification.
(c) Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the certification on probation for a period of time and subject to such conditions as the Department of Health specifies.
(f) Restricting the authorized scope of the certification.
(6) The certification program shall be governed by chapter 120.
History.s. 7, ch. 85-269; s. 3, ch. 88-89; s. 358, ch. 94-356; s. 22, ch. 98-151.
403.063 Groundwater quality monitoring.
(1) The department, in cooperation with other state and federal agencies, water management districts, and local governments, shall establish a groundwater quality monitoring network designed to detect or predict contamination of the groundwater resources of the state.
(2) The department may by rule determine the priority of sites to be monitored within such groundwater quality monitoring network, based upon the following criteria:
(a) The degree of danger to the public health caused or potentially caused by contamination.
(b) The susceptibility of each site to contamination.
(3) This information shall be made available to state and federal agencies and local governments to facilitate their regulatory and land use planning decisions.
(4) To the greatest extent practicable, the actual sampling and testing of groundwater pursuant to the provisions of this section may be conducted by local and regional agencies.
History.s. 3, ch. 83-310.
403.064 Reuse of reclaimed water.
(1) The encouragement and promotion of water conservation, and reuse of reclaimed water, as defined by the department, are state objectives and are considered to be in the public interest. The Legislature finds that the reuse of reclaimed water is a critical component of meeting the state’s existing and future water supply needs while sustaining natural systems. The Legislature further finds that for those wastewater treatment plants permitted and operated under an approved reuse program by the department, the reclaimed water shall be considered environmentally acceptable and not a threat to public health and safety. The Legislature encourages the development of incentive-based programs for reuse implementation.
(2) All applicants for permits to construct or operate a domestic wastewater treatment facility located within, serving a population located within, or discharging within a water resource caution area shall prepare a reuse feasibility study as part of their application for the permit. Reuse feasibility studies shall be prepared in accordance with department guidelines adopted by rule and shall include, but are not limited to:
(a) Evaluation of monetary costs and benefits for several levels and types of reuse.
(b) Evaluation of water savings if reuse is implemented.
(c) Evaluation of rates and fees necessary to implement reuse.
(d) Evaluation of environmental and water resource benefits associated with reuse.
(e) Evaluation of economic, environmental, and technical constraints.
(f) A schedule for implementation of reuse. The schedule shall consider phased implementation.
(3) The permit applicant shall prepare a plan of study for the reuse feasibility study consistent with the reuse feasibility study guidelines adopted by department rule. The plan of study shall include detailed descriptions of applicable treatment and water supply alternatives to be evaluated and the methods of analysis to be used. The plan of study shall be submitted to the department for review and approval.
(4) The study required under subsection (2) shall be performed by the applicant, and, if the study shows that the reuse is feasible, the applicant must give significant consideration to its implementation if the study complies with the requirements of subsections (2) and (3).
(5) A reuse feasibility study is not required if:
(a) The domestic wastewater treatment facility has an existing or proposed permitted or design capacity less than 0.1 million gallons per day; or
(b) The permitted reuse capacity equals or exceeds the total permitted capacity of the domestic wastewater treatment facility.
(6) A reuse feasibility study prepared under subsection (2) satisfies a water management district requirement to conduct a reuse feasibility study imposed on a local government or utility that has responsibility for wastewater management. The data included in the study and the conclusions of the study must be given significant consideration by the applicant and the appropriate water management district in an analysis of the economic, environmental, and technical feasibility of providing reclaimed water for reuse under part II of chapter 373 and must be presumed relevant to the determination of feasibility. A water management district may not require a separate study when a reuse feasibility study has been completed under subsection (2).
(7) Local governments may allow the use of reclaimed water for inside activities, including, but not limited to, toilet flushing, fire protection, and decorative water features, as well as for outdoor uses, provided the reclaimed water is from domestic wastewater treatment facilities which are permitted, constructed, and operated in accordance with department rules.
(8) Permits issued by the department for domestic wastewater treatment facilities shall be consistent with requirements for reuse included in applicable consumptive use permits issued by the water management district, if such requirements are consistent with department rules governing reuse of reclaimed water. This subsection applies only to domestic wastewater treatment facilities which are located within, or serve a population located within, or discharge within water resource caution areas and are owned, operated, or controlled by a local government or utility which has responsibility for water supply and wastewater management.
(9) Local governments may and are encouraged to implement programs for the reuse of reclaimed water. Nothing in this chapter shall be construed to prohibit or preempt such local reuse programs.
(10) A local government that implements a reuse program under this section shall be allowed to allocate the costs in a reasonable manner.
(11) Pursuant to chapter 367, the Florida Public Service Commission shall allow entities under its jurisdiction which conduct studies or implement reuse projects, including, but not limited to, any study required by subsection (2) or facilities used for reliability purposes for a reclaimed water reuse system, to recover the full, prudently incurred cost of such studies and facilities through their rate structure.
(12) In issuing consumptive use permits, the permitting agency shall consider the local reuse program.
(13) A local government shall require a developer, as a condition for obtaining a development order, to comply with the local reuse program.
(14) After conducting a feasibility study under subsection (2), domestic wastewater treatment facilities that dispose of effluent by Class I deep well injection, as defined in 40 C.F.R. part 144.6(a), must implement reuse to the degree that reuse is feasible, based upon the applicant’s reuse feasibility study. Applicable permits issued by the department shall be consistent with the requirements of this subsection.
(a) This subsection does not limit the use of a Class I deep well injection facility as backup for a reclaimed water reuse system.
(b) This subsection applies only to domestic wastewater treatment facilities located within, serving a population located within, or discharging within a water resource caution area.
(15) After conducting a feasibility study under subsection (2), domestic wastewater treatment facilities that dispose of effluent by surface water discharges or by land application methods must implement reuse to the degree that reuse is feasible, based upon the applicant’s reuse feasibility study. This subsection does not apply to surface water discharges or land application systems which are currently categorized as reuse under department rules. Applicable permits issued by the department shall be consistent with the requirements of this subsection.
(a) This subsection does not limit the use of a surface water discharge or land application facility as backup for a reclaimed water reuse system.
(b) This subsection applies only to domestic wastewater treatment facilities located within, serving a population located within, or discharging within a water resource caution area.
(16) Utilities implementing reuse projects are encouraged, except in the case of use by electric utilities as defined in s. 366.02(2), to meter use of reclaimed water by all end users and to charge for the use of reclaimed water based on the actual volume used when such metering and charges can be shown to encourage water conservation. Metering and the use of volume-based rates are effective water management tools for the following reuse activities: residential irrigation, agricultural irrigation, industrial uses, landscape irrigation, irrigation of other public access areas, commercial and institutional uses such as toilet flushing, and transfers to other reclaimed water utilities. Beginning with the submittal due on January 1, 2005, each domestic wastewater utility that provides reclaimed water for the reuse activities listed in this section shall include a summary of its metering and rate structure as part of its annual reuse report to the department.
History.s. 7, ch. 89-324; s. 3, ch. 94-243; s. 8, ch. 95-323; s. 37, ch. 2002-296; s. 13, ch. 2004-381.
403.0645 Reclaimed water use at state facilities.
(1) The encouragement and promotion of reuse of reclaimed water has been established as a state objective in ss. 373.250 and 403.064. Reuse has become an integral part of water and wastewater management in Florida, and Florida is recognized as a national leader in water reuse.
(2) The state and various state agencies and water management districts should take a leadership role in using reclaimed water in lieu of other water sources. The use of reclaimed water by state agencies and facilities will conserve potable water and will serve an important public education function.
(3) Each state agency and water management district shall use reclaimed water to the greatest extent practicable for landscape irrigation, toilet flushing, aesthetic features such as decorative ponds and fountains, cooling water, and other useful purposes allowed by department rules at state facilities, including, but not limited to, parks, rest areas, visitor welcome centers, buildings, college campuses, and other facilities.
(4) Each state agency and water management district shall submit to the Secretary of Environmental Protection by February 1 of each year a summary of activities designed to utilize reclaimed water at its facilities along with a summary of the amounts of reclaimed water actually used for beneficial purposes.
History.s. 14, ch. 2004-381.
403.067 Establishment and implementation of total maximum daily loads.
(1) LEGISLATIVE FINDINGS AND INTENT.In furtherance of public policy established in s. 403.021, the Legislature declares that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution. The Legislature finds that, while point and nonpoint sources of pollution have been managed through numerous programs, better coordination among these efforts and additional management measures may be needed in order to achieve the restoration of impaired water bodies. The scientifically based total maximum daily load program is necessary to fairly and equitably allocate pollution loads to both nonpoint and point sources. Implementation of the allocation shall include consideration of a cost-effective approach coordinated between contributing point and nonpoint sources of pollution for impaired water bodies or water body segments and may include the opportunity to implement the allocation through nonregulatory and incentive-based programs. The Legislature further declares that the Department of Environmental Protection shall be the lead agency in administering this program and shall coordinate with local governments, water management districts, the Department of Agriculture and Consumer Services, local soil and water conservation districts, environmental groups, regulated interests, other appropriate state agencies, and affected pollution sources in developing and executing the total maximum daily load program.
(2) LIST OF SURFACE WATERS OR SEGMENTS.In accordance with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., the department must submit periodically to the United States Environmental Protection Agency a list of surface waters or segments for which total maximum daily load assessments will be conducted. The assessments shall evaluate the water quality conditions of the listed waters and, if such waters are determined not to meet water quality standards, total maximum daily loads shall be established, subject to the provisions of subsection (4). The department shall establish a priority ranking and schedule for analyzing such waters.
(a) The list, priority ranking, and schedule cannot be used in the administration or implementation of any regulatory program. However, this paragraph does not prohibit any agency from employing the data or other information used to establish the list, priority ranking, or schedule in administering any program.
(b) The list, priority ranking, and schedule prepared under this subsection shall be made available for public comment, but shall not be subject to challenge under chapter 120.
(c) The provisions of this subsection are applicable to all lists prepared by the department and submitted to the United States Environmental Protection Agency pursuant to s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., including those submitted prior to the effective date of this act, except as provided in subsection (4).
(d) If the department proposes to implement total maximum daily load calculations or allocations established prior to the effective date of this act, the department shall adopt those calculations and allocations by rule by the secretary pursuant to ss. 120.536(1) and 120.54 and paragraph (6)(c).
(3) ASSESSMENT.
(a) Based on the priority ranking and schedule for a particular listed water body or water body segment, the department shall conduct a total maximum daily load assessment of the basin in which the water body or water body segment is located using the methodology developed pursuant to paragraph (b). In conducting this assessment, the department shall coordinate with the local water management district, the Department of Agriculture and Consumer Services, other appropriate state agencies, soil and water conservation districts, environmental groups, regulated interests, and other interested parties.
(b) The department shall adopt by rule a methodology for determining those waters which are impaired. The rule shall provide for consideration as to whether water quality standards codified in chapter 62-302, Florida Administrative Code, are being exceeded, based on objective and credible data, studies and reports, including surface water improvement and management plans approved by water management districts and pollutant load reduction goals developed according to department rule. Such rule also shall set forth:
1. Water quality sample collection and analysis requirements, accounting for ambient background conditions, seasonal and other natural variations;
2. Approved methodologies;
3. Quality assurance and quality control protocols;
4. Data modeling; and
5. Other appropriate water quality assessment measures.
(c) If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality nonattainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment.
(4) APPROVED LIST.If the department determines, based on the total maximum daily load assessment methodology described in subsection (3), that water quality standards are not being achieved and that technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards, it shall confirm that determination by issuing a subsequent, updated list of those water bodies or segments for which total maximum daily loads will be calculated. In association with this updated list, the department shall establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations. If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard. This updated list shall be approved and amended by order of the department subsequent to completion of an assessment of each water body or water body segment, and submitted to the United States Environmental Protection Agency. Each order shall be subject to challenge under ss. 120.569 and 120.57.
(5) REMOVAL FROM LIST.At any time throughout the total maximum daily load process, surface waters or segments evaluated or listed under this section shall be removed from the lists described in subsection (2) or subsection (4) upon demonstration that water quality criteria are being attained, based on data equivalent to that required by rule under subsection (3).
(6) CALCULATION AND ALLOCATION.
(a) Calculation of total maximum daily load.
1. Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. The analysis may include mathematical water quality modeling using approved procedures and methods.
2. The department shall develop total maximum daily load calculations for each water body or water body segment on the list described in subsection (4) according to the priority ranking and schedule unless the impairment of such waters is due solely to activities other than point and nonpoint sources of pollution. For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required. A total maximum daily load may be required for those waters that are impaired predominantly due to activities other than point and nonpoint sources. The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards, and shall account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. The total maximum daily load may be based on a pollutant load reduction goal developed by a water management district, provided that such pollutant load reduction goal is promulgated by the department in accordance with the procedural and substantive requirements of this subsection.
(b) Allocation of total maximum daily loads. The total maximum daily loads shall include establishment of reasonable and equitable allocations of the total maximum daily load between or among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities, provide for the attainment of the pollutant reductions established pursuant to paragraph (a) to achieve water quality standards for the pollutant causing impairment. The allocations may establish the maximum amount of the water pollutant that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. An initial allocation of allowable pollutant loads among point and nonpoint sources may be developed as part of the total maximum daily load. However, in such cases, the detailed allocation to specific point sources and specific categories of nonpoint sources shall be established in the basin management action plan pursuant to subsection (7). The initial and detailed allocations shall be designed to attain the pollutant reductions established pursuant to paragraph (a) and shall be based on consideration of the following:
1. Existing treatment levels and management practices;
2. Best management practices established and implemented pursuant to paragraph (7)(c);
3. Enforceable treatment levels established pursuant to state or local law or permit;
4. Differing impacts pollutant sources and forms of pollutant may have on water quality;
5. The availability of treatment technologies, management practices, or other pollutant reduction measures;
6. Environmental, economic, and technological feasibility of achieving the allocation;
7. The cost benefit associated with achieving the allocation;
8. Reasonable timeframes for implementation;
9. Potential applicability of any moderating provisions such as variances, exemptions, and mixing zones; and
10. The extent to which nonattainment of water quality standards is caused by pollution sources outside of Florida, discharges that have ceased, or alterations to water bodies prior to the date of this act.
(c) Adoption of rules. The total maximum daily load calculations and allocations established under this subsection for each water body or water body segment shall be adopted by rule by the secretary pursuant to ss. 120.536(1), 120.54, and 403.805. Where additional data collection and analysis are needed to increase the scientific precision and accuracy of the total maximum daily load, the department is authorized to adopt phased total maximum daily loads that are subject to change as additional data becomes available. Where phased total maximum daily loads are proposed, the department shall, in the detailed statement of facts and circumstances justifying the rule, explain why the data are inadequate so as to justify a phased total maximum daily load. The rules adopted pursuant to this paragraph shall not be subject to approval by the Environmental Regulation Commission. As part of the rule development process, the department shall hold at least one public workshop in the vicinity of the water body or water body segment for which the total maximum daily load is being developed. Notice of the public workshop shall be published not less than 5 days nor more than 15 days before the public workshop in a newspaper of general circulation in the county or counties containing the water bodies or water body segments for which the total maximum daily load calculation and allocation are being developed.
(7) DEVELOPMENT OF BASIN MANAGEMENT PLANS AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.
(a) Basin management action plans.
1. In developing and implementing the total maximum daily load for a water body, the department, or the department in conjunction with a water management district, may develop a basin management action plan that addresses some or all of the watersheds and basins tributary to the water body. Such a plan must integrate the appropriate management strategies available to the state through existing water quality protection programs to achieve the total maximum daily loads and may provide for phased implementation of these management strategies to promote timely, cost-effective actions as provided for in s. 403.151. The plan must establish a schedule for implementing the management strategies, establish a basis for evaluating the plan’s effectiveness, and identify feasible funding strategies for implementing the plan’s management strategies. The management strategies may include regional treatment systems or other public works, where appropriate, and, in the basin listed in subsection (10) for which a basin management action plan has been adopted, voluntary trading of water quality credits to achieve the needed pollutant load reductions.
2. A basin management action plan must equitably allocate, pursuant to paragraph (6)(b), pollutant reductions to individual basins, as a whole to all basins, or to each identified point source or category of nonpoint sources, as appropriate. For nonpoint sources for which best management practices have been adopted, the initial requirement specified by the plan must be those practices developed pursuant to paragraph (c). Where appropriate, the plan may take into account the benefits of pollutant load reduction achieved by point or nonpoint sources that have implemented management strategies to reduce pollutant loads, including best management practices, prior to the development of the basin management action plan. The plan must also identify the mechanisms that will address potential future increases in pollutant loading.
3. The basin management action planning process is intended to involve the broadest possible range of interested parties, with the objective of encouraging the greatest amount of cooperation and consensus possible. In developing a basin management action plan, the department shall assure that key stakeholders, including, but not limited to, applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources, are invited to participate in the process. The department shall hold at least one public meeting in the vicinity of the watershed or basin to discuss and receive comments during the planning process and shall otherwise encourage public participation to the greatest practicable extent. Notice of the public meeting must be published in a newspaper of general circulation in each county in which the watershed or basin lies not less than 5 days nor more than 15 days before the public meeting. A basin management action plan shall not supplant or otherwise alter any assessment made under subsection (3) or subsection (4) or any calculation or initial allocation.
4. The department shall adopt all or any part of a basin management action plan and any amendment to such plan by secretarial order pursuant to chapter 120 to implement the provisions of this section.
5. The basin management action plan must include milestones for implementation and water quality improvement, and an associated water quality monitoring component sufficient to evaluate whether reasonable progress in pollutant load reductions is being achieved over time. An assessment of progress toward these milestones shall be conducted every 5 years, and revisions to the plan shall be made as appropriate. Revisions to the basin management action plan shall be made by the department in cooperation with basin stakeholders. Revisions to the management strategies required for nonpoint sources must follow the procedures set forth in subparagraph (c)4. Revised basin management action plans must be adopted pursuant to subparagraph 4.
6. In accordance with procedures adopted by rule under paragraph (9)(c), basin management action plans may allow point or nonpoint sources that will achieve greater pollutant reductions than required by an adopted total maximum load or wasteload allocation to generate, register, and trade water quality credits for the excess reductions to enable other sources to achieve their allocation; however, the generation of water quality credits does not remove the obligation of a source or activity to meet applicable technology requirements or adopted best management practices. Such plans must allow trading between NPDES permittees, and trading that may or may not involve NPDES permittees, where the generation or use of the credits involve an entity or activity not subject to department water discharge permits whose owner voluntarily elects to obtain department authorization for the generation and sale of credits.
7. The provisions of the department’s rule relating to the equitable abatement of pollutants into surface waters shall not be applied to water bodies or water body segments for which a basin management plan that takes into account future new or expanded activities or discharges has been adopted under this section.
(b) Total maximum daily load implementation.
1. The department shall be the lead agency in coordinating the implementation of the total maximum daily loads through existing water quality protection programs. Application of a total maximum daily load by a water management district must be consistent with this section and shall not require the issuance of an order or a separate action pursuant to s. 120.536(1) or s. 120.54 for the adoption of the calculation and allocation previously established by the department. Such programs may include, but are not limited to:
a. Permitting and other existing regulatory programs, including water-quality-based effluent limitations;
b. Nonregulatory and incentive-based programs, including best management practices, cost sharing, waste minimization, pollution prevention, agreements established pursuant to s. 403.061(21), and public education;
c. Other water quality management and restoration activities, for example surface water improvement and management plans approved by water management districts or basin management action plans developed pursuant to this subsection;
d. Trading of water quality credits or other equitable economically based agreements;
e. Public works including capital facilities; or
f. Land acquisition.
2. For a basin management action plan adopted pursuant to paragraph (a), any management strategies and pollutant reduction requirements associated with a pollutant of concern for which a total maximum daily load has been developed, including effluent limits set forth for a discharger subject to NPDES permitting, if any, must be included in a timely manner in subsequent NPDES permits or permit modifications for that discharger. The department shall not impose limits or conditions implementing an adopted total maximum daily load in an NPDES permit until the permit expires, the discharge is modified, or the permit is reopened pursuant to an adopted basin management action plan.
a. Absent a detailed allocation, total maximum daily loads shall be implemented through NPDES permit conditions that provide for a compliance schedule. In such instances, a facility’s NPDES permit must allow time for the issuance of an order adopting the basin management action plan. The time allowed for the issuance of an order adopting the plan shall not exceed 5 years. Upon issuance of an order adopting the plan, the permit must be reopened or renewed, as necessary, and permit conditions consistent with the plan must be established. Notwithstanding the other provisions of this subparagraph, upon request by an NPDES permittee, the department as part of a permit issuance, renewal, or modification may establish individual allocations prior to the adoption of a basin management action plan.
b. For holders of NPDES municipal separate storm sewer system permits and other stormwater sources, implementation of a total maximum daily load or basin management action plan must be achieved, to the maximum extent practicable, through the use of best management practices or other management measures.
c. The basin management action plan does not relieve the discharger from any requirement to obtain, renew, or modify an NPDES permit or to abide by other requirements of the permit.
d. Management strategies set forth in a basin management action plan to be implemented by a discharger subject to permitting by the department must be completed pursuant to the schedule set forth in the basin management action plan. This implementation schedule may extend beyond the 5-year term of an NPDES permit.
e. Management strategies and pollution reduction requirements set forth in a basin management action plan for a specific pollutant of concern shall not be subject to challenge under chapter 120 at the time they are incorporated, in an identical form, into a subsequent NPDES permit or permit modification.
f. For nonagricultural pollutant sources not subject to NPDES permitting but permitted pursuant to other state, regional, or local water quality programs, the pollutant reduction actions adopted in a basin management action plan shall be implemented to the maximum extent practicable as part of those permitting programs.
g. A nonpoint source discharger included in a basin management action plan must demonstrate compliance with the pollutant reductions established under subsection (6) by either implementing the appropriate best management practices established pursuant to paragraph (c) or conducting water quality monitoring prescribed by the department or a water management district. A nonpoint source discharger may, in accordance with department rules, supplement the implementation of best management practices with water quality credit trades in order to demonstrate compliance with the pollutant reductions established under subsection (6).
h. A nonpoint source discharger included in a basin management action plan may be subject to enforcement action by the department or a water management district based upon a failure to implement the responsibilities set forth in sub-subparagraph g.
i. A landowner, discharger, or other responsible person who is implementing applicable management strategies specified in an adopted basin management action plan shall not be required by permit, enforcement action, or otherwise to implement additional management strategies to reduce pollutant loads to attain the pollutant reductions established pursuant to subsection (6) and shall be deemed to be in compliance with this section. This subparagraph does not limit the authority of the department to amend a basin management action plan as specified in subparagraph (a)5.
(c) Best management practices.
1. The department, in cooperation with the water management districts and other interested parties, as appropriate, may develop suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for nonagricultural nonpoint pollutant sources in allocations developed pursuant to subsection (6) and this subsection. These practices and measures may be adopted by rule by the department and the water management districts and, where adopted by rule, shall be implemented by those parties responsible for nonagricultural nonpoint source pollution.
2. The Department of Agriculture and Consumer Services may develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources in allocations developed pursuant to subsection (6) and this subsection or for programs implemented pursuant to paragraph (13)(b). These practices and measures may be implemented by those parties responsible for agricultural pollutant sources and the department, the water management districts, and the Department of Agriculture and Consumer Services shall assist with implementation. In the process of developing and adopting rules for interim measures, best management practices, or other measures, the Department of Agriculture and Consumer Services shall consult with the department, the Department of Health, the water management districts, representatives from affected farming groups, and environmental group representatives. Such rules must also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements.
3. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to subsection (6) and this subsection or in programs implemented pursuant to paragraph (13)(b) must be verified at representative sites by the department. The department shall use best professional judgment in making the initial verification that the best management practices are reasonably expected to be effective and, where applicable, must notify the appropriate water management district or the Department of Agriculture and Consumer Services of its initial verification before the adoption of a rule proposed pursuant to this paragraph. Implementation, in accordance with rules adopted under this paragraph, of practices that have been initially verified to be effective, or verified to be effective by monitoring at representative sites, by the department, shall provide a presumption of compliance with state water quality standards and release from the provisions of s. 376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface water or groundwater caused by those pollutants. Research projects funded by the department, a water management district, or the Department of Agriculture and Consumer Services to develop or demonstrate interim measures or best management practices shall be granted a presumption of compliance with state water quality standards and a release from the provisions of s. 376.307(5). The presumption of compliance and release is limited to the research site and only for those pollutants addressed by the interim measures or best management practices. Eligibility for the presumption of compliance and release is limited to research projects on sites where the owner or operator of the research site and the department, a water management district, or the Department of Agriculture and Consumer Services have entered into a contract or other agreement that, at a minimum, specifies the research objectives, the cost-share responsibilities of the parties, and a schedule that details the beginning and ending dates of the project.
4. Where water quality problems are demonstrated, despite the appropriate implementation, operation, and maintenance of best management practices and other measures required by rules adopted under this paragraph, the department, a water management district, or the Department of Agriculture and Consumer Services, in consultation with the department, shall institute a reevaluation of the best management practice or other measure. Should the reevaluation determine that the best management practice or other measure requires modification, the department, a water management district, or the Department of Agriculture and Consumer Services, as appropriate, shall revise the rule to require implementation of the modified practice within a reasonable time period as specified in the rule.
5. Agricultural records relating to processes or methods of production, costs of production, profits, or other financial information held by the Department of Agriculture and Consumer Services pursuant to subparagraphs 3. and 4. or pursuant to any rule adopted pursuant to subparagraph 2. are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Upon request, records made confidential and exempt pursuant to this subparagraph shall be released to the department or any water management district provided that the confidentiality specified by this subparagraph for such records is maintained.
6. The provisions of subparagraphs 1. and 2. do not preclude the department or water management district from requiring compliance with water quality standards or with current best management practice requirements set forth in any applicable regulatory program authorized by law for the purpose of protecting water quality. Additionally, subparagraphs 1. and 2. are applicable only to the extent that they do not conflict with any rules adopted by the department that are necessary to maintain a federally delegated or approved program.
(8) WATER QUALITY CREDIT TRADING.
(a) Water quality credit trading must be consistent with federal law and regulation.
(b) Water quality credit trading must be implemented through permits, including water quality credit trading permits, other authorizations, or other legally binding agreements as established by department rule.
(c) The department shall establish the pollutant load reduction value of water quality credits and shall be responsible for authorizing their use.
(d) A person that acquires water quality credits (“buyer”) shall timely submit to the department an affidavit, signed by the buyer and the credit generator (“seller”), disclosing the term of acquisition, number of credits, unit credit price paid, and any state funding received for the facilities or activities that generate the credits. The department shall not participate in the establishment of credit prices.
(e) Sellers of water quality credits are responsible for achieving the load reductions on which the credits are based and complying with the terms of the department authorization and any trading agreements into which they may have entered.
(f) Buyers of water quality credits are responsible for complying with the terms of the department water discharge permit.
(g) The department shall take appropriate action to address the failure of a credit seller to fulfill its obligations, including, as necessary, deeming the seller’s credits invalid if the seller cannot achieve the load reductions on which the credits were based in a reasonable time. If the department determines duly acquired water quality credits to be invalid, in whole or in part, thereby causing the credit buyer to be unable to timely meet its pollutant reduction obligations under this section, the department shall issue an order establishing the actions required of the buyer to meet its obligations by alternative means and a reasonable schedule for completing the actions. The invalidation of credits shall not itself constitute a violation of the buyer’s water discharge permit.
(9) RULES.The department is authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 for:
(a) Delisting water bodies or water body segments from the list developed under subsection (4) pursuant to the guidance under subsection (5).
(b) Administering of funds to implement the total maximum daily load and basin management action planning programs.
(c) Water quality credit trading among the pollutant sources to a water body or water body segment. By September 1, 2008, rulemaking must be initiated which provides for the following:
1. The process to be used to determine how credits are generated, quantified, and validated.
2. A publicly accessible water quality credit trading registry that tracks water quality credits, trading activities, and prices paid for credits.
3. Limitations on the availability and use of water quality credits, including a list of eligible pollutants or parameters and minimum water quality requirements and, where appropriate, adjustments to reflect best management practice performance uncertainties and water-segment-specific location factors.
4. The timing and duration of credits and allowance for credit transferability.
5. Mechanisms for determining and ensuring compliance with trading procedures, including recordkeeping, monitoring, reporting, and inspections.

At the time of publication of the draft rules on water quality credit trading, the department shall submit a copy to the United States Environmental Protection Agency for review.

(d) The total maximum daily load calculation in accordance with paragraph (6)(a) immediately upon the effective date of this act, for those eight water segments within Lake Okeechobee proper as submitted to the United States Environmental Protection Agency pursuant to subsection (2).
(e) Implementation of other specific provisions.
(10) Water quality credit trading shall be limited to the Lower St. Johns River Basin, as defined by the department, as a pilot project. The department may authorize water quality credit trading and establish specific requirements for trading in the adopted basin management action plan for the Lower St. Johns River Basin prior to the adoption of rules under paragraph (9)(c) in order to effectively implement the pilot project. Entities that participate in water quality credit trades shall timely report to the department the prices for credits, how the prices were determined, and any state funding received for the facilities or activities that generated the credits. The department shall not participate in the establishment of credit prices. No later than 24 months after adoption of the basin management action plan for the Lower St. Johns River, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives on the effectiveness of the pilot project, including the following information:
(a) A summary of how water quality credit trading was implemented, including the number of pounds of pollutants traded.
(b) A description of the individual trades and estimated pollutant load reductions that are expected to result from each trade.
(c) A description of any conditions placed on trades.
(d) Prices associated with the trades, as reported by the traders.
(e) A recommendation as to whether other areas of the state would benefit from water quality credit trading and, if so, an identification of the statutory changes necessary to expand the scope of trading.
(11) APPLICATION.The provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards or as restricting the authority otherwise granted to the department or a water management district under this chapter or chapter 373. The exclusive means of state implementation of s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be in accordance with the identification, assessment, calculation and allocation, and implementation provisions of this section.
(12) CONSTRUCTION.Nothing in this section shall be construed as limiting the applicability or consideration of any mixing zone, variance, exemption, site specific alternative criteria, or other moderating provision.
(13) IMPLEMENTATION OF ADDITIONAL PROGRAMS.
(a) The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation.
(b) Interim measures, best management practices, or other measures may be developed and voluntarily implemented pursuant to paragraph (7)(c) for any water body or segment for which a total maximum daily load or allocation has not been established. The implementation of such pollution control programs may be considered by the department in the determination made pursuant to subsection (4).
(14) In order to provide adequate due process while ensuring timely development of total maximum daily loads, proposed rules and orders authorized by this act shall be ineffective pending resolution of a s. 120.54(3), s. 120.56, s. 120.569, or s. 120.57 administrative proceeding. However, the department may go forward prior to resolution of such administrative proceedings with subsequent agency actions authorized by subsections (2)-(6), provided that the department can support and substantiate those actions using the underlying bases for the rules or orders without the benefit of any legal presumption favoring, or in deference to, the challenged rules or orders.
History.s. 3, ch. 99-223; s. 10, ch. 99-353; s. 3, ch. 2000-130; s. 1, ch. 2001-74; s. 1, ch. 2002-165; s. 17, ch. 2002-295; s. 10, ch. 2003-265; s. 6, ch. 2005-166; s. 13, ch. 2005-291; s. 1, ch. 2006-76; s. 10, ch. 2006-289; s. 1, ch. 2008-189.
403.072 Pollution Prevention Act.Sections 403.072-403.074 may be cited as the “Pollution Prevention Act.”
History.s. 25, ch. 91-305.
403.073 Pollution prevention; state goal; agency programs; public education.
(1) It is a goal of the state that all its agencies, the State University System, community colleges, and all municipalities, counties, regional agencies, and special districts develop and implement strategies to prevent pollution, including public information programs and education programs.
(2) It is the policy of the state that pollution prevention is necessary for all materials and waste management activities.
History.s. 26, ch. 91-305; s. 1, ch. 95-144; s. 48, ch. 2007-217.
403.074 Technical assistance by the department.
(1) To help develop effective programs to eliminate or reduce the use of materials that are toxic to humans, plants, or animals and to prevent pollution at its source, the department shall implement and administer a program of technical assistance in pollution prevention to business, industry, agriculture, and state and local government.
(2) The program shall include onsite, nonregulatory technical assistance and shall promote and sponsor conferences on pollution prevention techniques. The program may be conducted in cooperation with trade associations, trade schools, the State University System, community colleges, or other appropriate entities.
(3) Proprietary information obtained by the department during a visit to provide onsite technical assistance requested under ss. 403.072-403.074 shall be treated in accordance with the provisions of s. 403.111, unless such confidentiality is waived by the party who requested the assistance.
History.s. 27, ch. 91-305; s. 1, ch. 95-366; s. 49, ch. 2007-217.
403.075 Legislative findings.In addition to the declarations contained in s. 403.021, the Legislature finds that:
(1) Ecosystem management is a concept that includes coordinating the planning activities of state and other governmental units, land management, environmental permitting and regulatory programs, and voluntary programs, together with the needs of the business community, private landowners, and the public, as partners in a streamlined and effective program for the protection of the environment. It is particularly in the interest of persons residing and doing business within the boundaries of a particular ecosystem to share in the responsibility of ecosystem restoration or maintenance. The proper stewardship of an ecosystem by its affected residents will, in general, enhance the economic and social welfare of all Floridians by maintaining the natural beauty and functions of that ecosystem, which will, in turn, contribute to the beauty and function of larger inclusive ecosystems and add immeasurably to the quality of life and the economy of all Florida counties dependent on those ecosystems, thus serving a public purpose.
(2) Most ecosystems are subject to multiple governmental jurisdictions. Therefore, there is a need for a unified and stable mechanism to plan for restoration and continued long-term maintenance of ecosystems.
(3) It is in the public interest and serves a public purpose that the Department of Environmental Protection take a leading role among the agencies of the state in developing and implementing comprehensive ecosystem management solutions, in cooperation with both public and private regulated entities, which improves the integration between land use planning and regulation, and which achieves positive environmental results in an efficient and cost-effective manner.
History.s. 26, ch. 97-164.
403.0752 Ecosystem management agreements.
(1) Upon the request of an applicant, the secretary of the department is authorized to enter into an ecosystem management agreement regarding any environmental impacts with regulated entities to better coordinate the legal requirements and timelines applicable to a regulated activity, which may include permit processing, project construction, operations monitoring, enforcement actions, proprietary approvals, and compliance with development orders and regional and local comprehensive plans. Entering into an ecosystem management agreement shall be voluntary for both the regulated entity and the department.
(2) An ecosystem management agreement may be entered into by the department and regulated entities when the department determines that:
(a) Implementation of such agreement meets all applicable standards and criteria so that there is a net ecosystem benefit to the subject ecosystem more favorable than operation under applicable rules;
(b) Entry into such agreement will not interfere with the department’s obligations under any federally delegated or approved program;
(c) Implementation of the agreement will result in a reduction in overall risks to human health and the environment compared to activities conducted in the absence of the agreement; and
(d) Each regulated entity has certified to the department that it has in place internal environmental management systems or alternative internal controls sufficient to implement the agreement.
(3)(a) An ecosystem management agreement shall include provision for the department to terminate the agreement by written notice to all other parties to the agreement when the department demonstrates that:
1. There has been a material change in conditions from the original agreement such that the intended net ecosystem benefit is not being, and may not reasonably be expected to be, achieved through continuation of the agreement;
2. Continuation of the agreement will result in economic hardship or competitive disadvantage; or
3. A party has violated the terms of the agreement.
(b) Termination of an ecosystem management agreement by the department shall be subject to the requirements of ss. 120.569 and 120.57.
(c) The applicant for an ecosystem management agreement may terminate such agreement at any time. Governmental parties, other than the department, may withdraw in accordance with the terms of the agreement at any time, but may not terminate the agreement.
(4) An ecosystem management agreement may include incentives for participation and implementation by a regulated entity, including, but not limited to, any or all of the following:
(a) Coordinated regulatory contact per facility.
(b) Permitting process flexibility.
(c) Expedited permit processing.
(d) Alternative monitoring and reporting requirements.
(e) Coordinated permitting and inspections.
(f) Cooperative inspections that provide opportunity for informal resolution of compliance issues before enforcement action is initiated.
(g) Alternative means of environmental protection which provide for equivalent or reduced overall risk to human health and the environment and which are available under existing law such as variances, waivers, or other relief mechanisms.
(5) The Executive Director of the Department of Economic Opportunity, the Secretary of Transportation, the Commissioner of Agriculture, the Executive Director of the Fish and Wildlife Conservation Commission, and the executive directors of the water management districts are authorized to participate in the development of ecosystem management agreements with regulated entities and other governmental agencies as necessary to effectuate the provisions of this section. Local governments are encouraged to participate in ecosystem management agreements.
(6) The secretary of the department may form ecosystem management advisory teams for consultation and participation in the preparation of an ecosystem management agreement. The secretary shall request the participation of at least the state and regional and local government entities having regulatory authority over the activities to be subject to the ecosystem management agreement. Such teams may also include representatives of other participating or advisory government agencies, which may include regional planning councils, private landowners, public landowners and managers, public and private utilities, corporations, and environmental interests. Team members shall be selected in a manner that ensures adequate representation of the diverse interests and perspectives within the designated ecosystem. Participation by any department of state government is at the discretion of that agency.
(7) An application for a binding ecosystem management agreement shall include:
(a) The name and address of the applicant;
(b) The location and a description of the project; and
(c) All application materials required for any requested permit, license, approval, variance, or waiver under all applicable statutes and rules.
(8)(a) An applicant for a binding ecosystem management agreement shall, at the applicant’s own expense, publish a notice of its request to enter into the agreement in a newspaper of general circulation in the county in which the activity that is the subject of the agreement will be located or take place. Proof of publication shall be provided to the department by the applicant. Actual mailed notice of the application shall also be provided to owners of property adjacent to the activity that is the subject of the agreement and to any other person whose interest is known to the department or the applicant.
(b) A binding ecosystem management agreement is subject to the following requirements:
1. Notice of intent to enter into the agreement shall be published by the regulated entity in a newspaper of general circulation in each county where the ecosystem management area is located. The notice shall specifically identify any standards, rules, or other legal or regulatory requirements proposed to be subject to variance or waiver under the agreement and any permit, license, or approval to be granted. The notice shall include the opportunity to request a hearing on the agreement under the provisions of ss. 120.569 and 120.57.
2. Substantially affected persons may challenge the terms of the agreement and the proposed issuance of any permit, license, approval, variance, or waiver contained in the agreement pursuant to ss. 120.569 and 120.57.
3. A substantially affected person may challenge the subsequent issuance of any permit, license, approval, variance, or waiver pursuant to the agreement, but which is not contained in the agreement, pursuant to ss. 120.569 and 120.57. In any such proceeding, any relevant and material elements of the agreement shall be admissible.
4. Any substantial modification or amendment to the agreement shall be subject to the same processes as the original agreement.
(c) The parties to an ecosystem management agreement may elect to enter into a nonbinding agreement that does not constitute agency action. Such agreements shall be considered advisory in nature and are not binding on any party to the agreement. If such election is made, any permit, license, approval, waiver, or variance subsequently issued by an agency shall be subject to the provisions of chapter 120.
(d) Waivers and variances available under applicable statutes and rules may be granted as a part of a binding ecosystem management agreement.
(e) A person who requests a binding ecosystem management agreement and as a part of that request seeks a permit, license, approval, variance, or waiver that is subject to a statutory application review time limit waives her or his right to a default permit, license, approval, variance, or waiver.
(9) Implementation of this section by the department must be consistent with federally delegated programs and federal law.
History.s. 27, ch. 97-164; s. 15, ch. 99-7; s. 203, ch. 99-245; s. 285, ch. 2011-142.
403.081 Performance by other state agencies.All state agencies, including the Department of Health, shall be available to the department to perform, at its direction, the duties required of the department under this act.
History.s. 9, ch. 67-436; ss. 19, 26, 35, ch. 69-106; s. 269, ch. 77-147; s. 359, ch. 94-356; s. 156, ch. 99-8.
403.085 Sanitary sewage disposal units; advanced and secondary waste treatment; industrial waste treatment.
(1) Neither the Department of Health nor any other state agency, county, special district, or municipality shall approve construction of any disposal well for sanitary sewage disposal which does not provide for secondary waste treatment and, in addition thereto, advanced waste treatment as deemed necessary and ordered by the department.
(2) Sanitary sewage disposal treatment plants which discharge effluent through disposal wells shall provide for secondary waste treatment and, in addition thereto, advanced waste treatment as deemed necessary and ordered by the Department of Environmental Protection. Failure to conform shall be punishable by a fine of $500 for each 24-hour day or fraction thereof that such failure is allowed to continue thereafter.
(3) Neither the Department of Health nor any other state agency, county, special district, or municipality shall approve construction of any ocean outfall, inland outfall, or disposal well for the discharge of industrial waste of any kind which does not provide for secondary waste treatment or such other treatment as is deemed necessary and ordered by the department.
(4) Industrial plants or facilities which discharge industrial waste of any kind through ocean outfalls, inland outfalls, or disposal wells shall provide for secondary waste treatment or such other waste treatment as deemed necessary and ordered by the former Department of Environmental Regulation. Failure to conform shall be punishable as provided in s. 403.161(2).
History.ss. 1, 2, ch. 70-82; s. 2, ch. 71-137; s. 1, ch. 71-274; s. 270, ch. 77-147; s. 74, ch. 79-65; s. 360, ch. 94-356; s. 157, ch. 99-8; s. 11, ch. 2000-211; s. 5, ch. 2008-232.
403.086 Sewage disposal facilities; advanced and secondary waste treatment.
(1)(a) Neither the Department of Health nor any other state agency, county, special district, or municipality shall approve construction of any facilities for sanitary sewage disposal which do not provide for secondary waste treatment and, in addition thereto, advanced waste treatment as deemed necessary and ordered by the department.
(b) No facilities for sanitary sewage disposal constructed after June 14, 1978, shall dispose of any wastes by deep well injection without providing for secondary waste treatment and, in addition thereto, advanced waste treatment deemed necessary by the department to protect adequately the beneficial use of the receiving waters.
(c) Notwithstanding any other provisions of this chapter or chapter 373, facilities for sanitary sewage disposal may not dispose of any wastes into Old Tampa Bay, Tampa Bay, Hillsborough Bay, Boca Ciega Bay, St. Joseph Sound, Clearwater Bay, Sarasota Bay, Little Sarasota Bay, Roberts Bay, Lemon Bay, or Charlotte Harbor Bay, or into any river, stream, channel, canal, bay, bayou, sound, or other water tributary thereto, without providing advanced waste treatment, as defined in subsection (4), approved by the department. This paragraph shall not apply to facilities which were permitted by February 1, 1987, and which discharge secondary treated effluent, followed by water hyacinth treatment, to tributaries of tributaries of the named waters; or to facilities permitted to discharge to the nontidally influenced portions of the Peace River.
(2) Any facilities for sanitary sewage disposal shall provide for secondary waste treatment and, in addition thereto, advanced waste treatment as deemed necessary and ordered by the Department of Environmental Protection. Failure to conform shall be punishable by a civil penalty of $500 for each 24-hour day or fraction thereof that such failure is allowed to continue thereafter.
(3) This section shall not be construed to prohibit or regulate septic tanks or other means of individual waste disposal which are otherwise subject to state regulation.
(4) For purposes of this section, the term “advanced waste treatment” means that treatment which will provide a reclaimed water product that:
(a) Contains not more, on a permitted annual average basis, than the following concentrations:
1. Biochemical Oxygen Demand
(CBOD5)..........5mg/l
2. Suspended Solids..........5mg/l
3. Total Nitrogen, expressed as N..........3mg/l
4. Total Phosphorus, expressed as P..........1mg/l
(b) Has received high level disinfection, as defined by rule of the department.

In those waters where the concentrations of phosphorus have been shown not to be a limiting nutrient or a contaminant, the department may waive or alter the compliance levels for phosphorus until there is a demonstration that phosphorus is a limiting nutrient or a contaminant.

(5)(a) Notwithstanding any other provisions of this chapter or chapter 373, when a reclaimed water product has been established to be in compliance with the standards set forth in subsection (4), that water shall be presumed to be allowable, and its discharge shall be permitted in the waters described in paragraph (1)(c) at a reasonably accessible point where such discharge results in minimal negative impact. This presumption may be overcome only by a demonstration that one or more of the following would occur:
1. That the discharge of reclaimed water that meets the standards set forth in subsection (4) will be, by itself, a cause of considerable degradation to an Outstanding Florida Water or to other waters and is not clearly in the public interest.
2. That the reclaimed water discharge will have a substantial negative impact on an approved shellfish harvesting area or a water used as a public domestic water supply.
3. That the increased volume of fresh water contributed by the reclaimed water product will seriously alter the natural fresh-salt water balance of the receiving water after reasonable opportunity for mixing.
(b) If one or more of the conditions described in subparagraphs (a)1.-3. have been demonstrated, remedies may include, but are not limited to, the following:
1. Require more stringent effluent limitations;
2. Order the point or method of discharge changed;
3. Limit the duration or volume of the discharge; or
4. Prohibit the discharge only if no other alternative is in the public interest.
(6) Any facility covered in paragraph (1)(c) shall be permitted to discharge if it meets the standards set forth in subsections (4) and (5). All of the facilities covered in paragraph (1)(c) shall be required to meet the standards set forth in subsections (4) and (5).
(7)(a) The department shall allow backup discharges pursuant to permit only. The backup discharge shall be limited to 30 percent of the permitted reuse capacity on an annual basis. For purposes of this subsection, a “backup discharge” is a surface water discharge that occurs as part of a functioning reuse system which has been permitted under department rules and which provides reclaimed water for irrigation of public access areas, residential properties, or edible food crops, or for industrial cooling or other acceptable reuse purposes. Backup discharges may occur during periods of reduced demand for reclaimed water in the reuse system.
(b) Notwithstanding any other provisions of this chapter or chapter 373, backup discharges of reclaimed water meeting the standards as set forth in subsection (4) shall be presumed to be allowable and shall be permitted in all waters in the state at a reasonably accessible point where such discharge results in minimal negative impact. Wet weather discharges as provided in s. 2(3)(c), chapter 90-262, Laws of Florida, shall include backup discharges as provided in this section. The presumption of the allowability of a backup discharge may be overcome only by a demonstration that one or more of the following conditions is present:
1. The discharge will be to an Outstanding Florida Water, except as provided in chapter 90-262, Laws of Florida;
2. The discharge will be to Class I or Class II waters;
3. The increased volume of fresh water contributed by a backup discharge will seriously alter the natural freshwater to saltwater balance of receiving waters after reasonable opportunity for mixing;
4. The discharge will be to a water body having a pollutant load reduction goal established by a water management district or the department, and the discharge will cause or contribute to a violation of the established goal;
5. The discharge fails to meet the requirements of the antidegradation policy contained in department rules; or
6. The discharge will be to waters that the department determines require more stringent nutrient limits than those set forth in subsection (4).
(c) Any backup discharge shall be subject to the provisions of the antidegradation policy contained in department rules.
(d) If one or more of the conditions described in paragraph (b) have been demonstrated, a backup discharge may still be allowed in conjunction with one or more of the remedies provided in paragraph (5)(b) or other suitable measures.
(e) The department shall allow lower levels of treatment of reclaimed water if the applicant affirmatively demonstrates that water quality standards will be met during periods of backup discharge and if all other requirements of this subsection are met.
(8) The department may require backflow prevention devices on potable water lines within reclaimed water service areas to protect public health and safety. The department shall establish rules that determine when backflow prevention devices on potable water lines are necessary and when such devices are not necessary.
(9) The Legislature finds that the discharge of domestic wastewater through ocean outfalls wastes valuable water supplies that should be reclaimed for beneficial purposes to meet public and natural systems demands. The Legislature also finds that discharge of domestic wastewater through ocean outfalls compromises the coastal environment, quality of life, and local economies that depend on those resources. The Legislature declares that more stringent treatment and management requirements for such domestic wastewater and the subsequent, timely elimination of ocean outfalls as a primary means of domestic wastewater discharge are in the public interest.
(a) The construction of new ocean outfalls for domestic wastewater discharge and the expansion of existing ocean outfalls for this purpose, along with associated pumping and piping systems, are prohibited. Each domestic wastewater ocean outfall shall be limited to the discharge capacity specified in the department permit authorizing the outfall in effect on July 1, 2008, which discharge capacity shall not be increased. Maintenance of existing, department-authorized domestic wastewater ocean outfalls and associated pumping and piping systems is allowed, subject to the requirements of this section. The department is directed to work with the United States Environmental Protection Agency to ensure that the requirements of this subsection are implemented consistently for all domestic wastewater facilities in Florida which discharge through ocean outfalls.
(b) The discharge of domestic wastewater through ocean outfalls shall meet advanced wastewater treatment and management requirements no later than December 31, 2018. For purposes of this subsection, the term “advanced wastewater treatment and management requirements” means the advanced waste treatment requirements set forth in subsection (4), a reduction in outfall baseline loadings of total nitrogen and total phosphorus which is equivalent to that which would be achieved by the advanced waste treatment requirements in subsection (4), or a reduction in cumulative outfall loadings of total nitrogen and total phosphorus occurring between December 31, 2008, and December 31, 2025, which is equivalent to that which would be achieved if the advanced waste treatment requirements in subsection (4) were fully implemented beginning December 31, 2018, and continued through December 31, 2025. The department shall establish the average baseline loadings of total nitrogen and total phosphorus for each outfall using monitoring data available for calendar years 2003 through 2007 and shall establish required loading reductions based on this baseline. The baseline loadings and required loading reductions of total nitrogen and total phosphorus shall be expressed as an average annual daily loading value. The advanced wastewater treatment and management requirements of this paragraph shall be deemed to be met for any domestic wastewater facility discharging through an ocean outfall on July 1, 2008, which has installed no later than December 31, 2018, a fully operational reuse system comprising 100 percent of the facility’s annual average daily flow for reuse activities authorized by the department.
(c) Each domestic wastewater facility that discharges through an ocean outfall on July 1, 2008, shall install a functioning reuse system no later than December 31, 2025. For purposes of this subsection, a “functioning reuse system” means an environmentally, economically, and technically feasible system that provides a minimum of 60 percent of the facility’s actual flow on an annual basis for irrigation of public access areas, residential properties, or agricultural crops; aquifer recharge; groundwater recharge; industrial cooling; or other acceptable reuse purposes authorized by the department. For purposes of this subsection, the term “facility’s actual flow on an annual basis” means the annual average flow of domestic wastewater discharging through the facility’s ocean outfall, as determined by the department, using monitoring data available for calendar years 2003 through 2007. Flows diverted from facilities to other facilities that provide 100 percent reuse of the diverted flows prior to December 31, 2025, shall be considered to contribute to meeting the 60 percent reuse requirement. For utilities operating more than one outfall, the reuse requirement can be met if the combined actual reuse flows from facilities served by the outfalls is at least 60 percent of the sum of the total actual flows from the facilities, including flows diverted to other facilities for 100 percent reuse prior to December 31, 2025. In the event treatment in addition to the advanced wastewater treatment and management requirements described in paragraph (b) is needed in order to support a functioning reuse system, such treatment shall be fully operational no later than December 31, 2025.
(d) The discharge of domestic wastewater through ocean outfalls is prohibited after December 31, 2025, except as a backup discharge that is part of a functioning reuse system authorized by the department as provided for in paragraph (c). A backup discharge may occur only during periods of reduced demand for reclaimed water in the reuse system, such as periods of wet weather, and shall comply with the advanced wastewater treatment and management requirements of paragraph (b).
(e) The holder of a department permit authorizing the discharge of domestic wastewater through an ocean outfall as of July 1, 2008, shall submit to the secretary of the department the following:
1. A detailed plan to meet the requirements of this subsection, including an identification of all land acquisition and facilities necessary to provide for reuse of the domestic wastewater; an analysis of the costs to meet the requirements; and a financing plan for meeting the requirements, including identifying any actions necessary to implement the financing plan, such as bond issuance or other borrowing, assessments, rate increases, fees, other charges, or other financing mechanisms. The plan shall include a detailed schedule for the completion of all necessary actions and shall be accompanied by supporting data and other documentation. The plan shall be submitted no later than July 1, 2013.
2. No later than July 1, 2016, an update of the plan required in subparagraph 1. documenting any refinements or changes in the costs, actions, or financing necessary to eliminate the ocean outfall discharge in accordance with this subsection or a written statement that the plan is current and accurate.
(f) By December 31, 2009, and by December 31 every 5 years thereafter, the holder of a department permit authorizing the discharge of domestic wastewater through an ocean outfall shall submit to the secretary of the department a report summarizing the actions accomplished to date and the actions remaining and proposed to meet the requirements of this subsection, including progress toward meeting the specific deadlines set forth in paragraphs (b) through (e). The report shall include the detailed schedule for and status of the evaluation of reuse and disposal options, preparation of preliminary design reports, preparation and submittal of permit applications, construction initiation, construction progress milestones, construction completion, initiation of operation, and continuing operation and maintenance.
(g) No later than July 1, 2010, and by July 1 every 5 years thereafter, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives on the implementation of this subsection. The report shall summarize progress to date, including the increased amount of reclaimed water provided and potable water offsets achieved, and identify any obstacles to continued progress, including all instances of substantial noncompliance.
(h) By February 1, 2012, the department shall submit a report to the Governor and Legislature detailing the results and recommendations from phases 1 through 3 of its ongoing study on reclaimed water use.
(i) The renewal of each permit that authorizes the discharge of domestic wastewater through an ocean outfall as of July 1, 2008, shall be accompanied by an order in accordance with s. 403.088(2)(e) and (f) which establishes an enforceable compliance schedule consistent with the requirements of this subsection.
(j) An entity that diverts wastewater flow from a receiving facility that discharges domestic wastewater through an ocean outfall must meet the 60 percent reuse requirement of paragraph (c). Reuse by the diverting entity of the diverted flows shall be credited to the diverting entity. The diverted flow shall also be correspondingly deducted from the receiving facility’s actual flow on an annual basis from which the required reuse is calculated pursuant to paragraph (c), and the receiving facility’s reuse requirement shall be recalculated accordingly.
(10) The Legislature finds that the discharge of inadequately treated and managed domestic wastewater from dozens of small wastewater facilities and thousands of septic tanks and other onsite systems in the Florida Keys compromises the quality of the coastal environment, including nearshore and offshore waters, and threatens the quality of life and local economies that depend on those resources. The Legislature also finds that the only practical and cost-effective way to fundamentally improve wastewater management in the Florida Keys is for the local governments in Monroe County, including those special districts established for the purpose of collection, transmission, treatment, or disposal of sewage, to timely complete the wastewater or sewage treatment and disposal facilities initiated under the work program of Administration Commission rule 28-20, Florida Administrative Code, and the Monroe County Sanitary Master Wastewater Plan, dated June 2000. The Legislature therefore declares that the construction and operation of comprehensive central wastewater systems in accordance with this subsection is in the public interest. To give effect to those findings, the requirements of this subsection apply to all domestic wastewater facilities in Monroe County, including privately owned facilities, unless otherwise provided under this subsection.
(a) The discharge of domestic wastewater into surface waters is prohibited.
(b) Monroe County, each municipality, and those special districts established for the purpose of collection, transmission, treatment, or disposal of sewage in Monroe County shall complete the wastewater collection, treatment, and disposal facilities within its jurisdiction designated as hot spots in the Monroe County Sanitary Master Wastewater Plan, dated June 2000, specifically listed in Exhibits 6-1 through 6-3 of Chapter 6 of the plan and mapped in Exhibit F-1 of Appendix F of the plan. The required facilities and connections, and any additional facilities or other adjustments required by rules adopted by the Administration Commission under s. 380.0552, must be completed by December 31, 2015, pursuant to specific schedules established by the commission. Domestic wastewater facilities located outside local government and special district service areas must meet the treatment and disposal requirements of this subsection by December 31, 2015.
(c) After December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of this subsection and department rules.
(d) Wastewater treatment facilities having design capacities:
1. Greater than or equal to 100,000 gallons per day must provide basic disinfection as defined by department rule and the level of treatment which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations:
a. Biochemical Oxygen Demand (CBOD5) of 5 mg/l.
b. Suspended Solids of 5 mg/l.
c. Total Nitrogen, expressed as N, of 3 mg/l.
d. Total Phosphorus, expressed as P, of 1 mg/l.
2. Less than 100,000 gallons per day must provide basic disinfection as defined by department rule and the level of treatment which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations:
a. Biochemical Oxygen Demand (CBOD5) of 10 mg/l.
b. Suspended Solids of 10 mg/l.
c. Total Nitrogen, expressed as N, of 10 mg/l.
d. Total Phosphorus, expressed as P, of 1 mg/l.
(e) Class V injection wells, as defined by department or Department of Health rule, must meet the following requirements and otherwise comply with department or Department of Health rules, as applicable:
1. If the design capacity of the facility is less than 1 million gallons per day, the injection well must be at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by department rule.
2. Except as provided in subparagraph 3. for backup wells, if the design capacity of the facility is equal to or greater than 1 million gallons per day, each primary injection well must be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by department rule.
3. If an injection well is used as a backup to a primary injection well, the following conditions apply:
a. The backup well may be used only when the primary injection well is out of service because of equipment failure, power failure, or the need for mechanical integrity testing or repair;
b. The backup well may not be used for more than a total of 500 hours during any 5-year period unless specifically authorized in writing by the department;
c. The backup well must be at least 90 feet deep and cased to a minimum depth of 60 feet, or to such greater cased depth and total well depth as may be required by department rule; and
d. Fluid injected into the backup well must meet the requirements of paragraph (d).
(f) The requirements of paragraphs (d) and (e) do not apply to:
1. Class I injection wells as defined by department rule, including any authorized mechanical integrity tests;
2. Authorized mechanical integrity tests associated with Class V wells as defined by department rule; or
3. The following types of reuse systems authorized by department rule:
a. Slow-rate land application systems;
b. Industrial uses of reclaimed water; and
c. Use of reclaimed water for toilet flushing, fire protection, vehicle washing, construction dust control, and decorative water features.

However, disposal systems serving as backups to reuse systems must comply with the other provisions of this subsection.

(g) For wastewater treatment facilities in operation as of July 1, 2010, which are located within areas to be served by Monroe County, municipalities in Monroe County, or those special districts established for the purpose of collection, transmission, treatment, or disposal of sewage but which are owned by other entities, the requirements of paragraphs (d) and (e) do not apply until January 1, 2016. Wastewater operating permits issued pursuant to this chapter and in effect for these facilities as of June 30, 2010, are extended until December 31, 2015, or until the facility is connected to a local government central wastewater system, whichever occurs first. Wastewater treatment facilities in operation after December 31, 2015, must comply with the treatment and disposal requirements of this subsection and department rules.
(h) If it is demonstrated that a discharge, even if the discharge is otherwise in compliance with this subsection, will cause or contribute to a violation of state water quality standards, the department shall:
1. Require more stringent effluent limitations;
2. Order the point or method of discharge changed;
3. Limit the duration or volume of the discharge; or
4. Prohibit the discharge.
(i) All sewage treatment facilities must monitor effluent for total nitrogen and total phosphorus concentration as required by department rule.
(j) The department shall require the levels of operator certification and staffing necessary to ensure proper operation and maintenance of sewage facilities.
(k) The department may adopt rules necessary to carry out this subsection.
(l) The authority of a local government, including a special district, to mandate connection of a wastewater facility, as defined by department rule, is governed by s. 4, chapter 99-395, Laws of Florida.
History.ss. 1, 2, 3, ch. 71-259; s. 2, ch. 71-137; s. 1, ch. 72-58; s. 271, ch. 77-147; s. 1, ch. 78-206; s. 75, ch. 79-65; s. 1, ch. 80-371; s. 1, ch. 81-246; s. 262, ch. 81-259; s. 2, ch. 86-173; s. 1, ch. 87-303; s. 71, ch. 93-213; s. 2, ch. 94-153; s. 361, ch. 94-356; s. 158, ch. 99-8; s. 25, ch. 2000-153; s. 12, ch. 2000-211; s. 6, ch. 2008-232; s. 38, ch. 2010-205.
403.08601 Leah Schad Memorial Ocean Outfall Program.The Legislature declares that as funds become available the state may assist the local governments and agencies responsible for implementing the Leah Schad Memorial Ocean Outfall Program pursuant to s. 403.086(9). Funds received from other sources provided for in law, the General Appropriations Act, from gifts designated for implementation of the plan from individuals, corporations, or other entities, or federal funds appropriated by Congress for implementation of the plan, may be deposited into an account of the Ecosystem Management and Restoration Trust Fund created pursuant to s. 403.1651.
History.s. 7, ch. 2008-232.
403.0861 Scallop processing; discharge standards.
(1) In furtherance of public policy established in s. 403.021, the department shall, not later than July 1, 1987, adopt rules establishing technology-based effluent limitations for waste resulting from the processing of scallops (Family: Pectinidae) which is discharged into waters of the state. The rules shall contain technology-based effluent limitations for biochemical oxygen demand and total suspended solids and for any other contaminant that the department deems appropriate. This section does not prohibit the department from establishing stricter effluent limitations based on the quality of receiving waters.
(2) Upon becoming effective, the rules required by this section shall be applicable to all permits or permit renewals allowing waste resulting from the processing of scallops to be discharged into waters of the state. Such rules shall be administered and enforced by the department in accordance with this chapter.
History.s. 1, ch. 85-231; s. 9, ch. 86-186.
403.0862 Discharge of waste from state groundwater cleanup operations to publicly owned treatment works.
(1) Upon agreement between a local governmental agency and the department, treated waste resulting from the department’s cleanup or restoration of contaminated groundwater may be discharged to a publicly owned treatment works under the jurisdiction of the local governmental agency.
(2) Upon a demonstration by the local government that it incurred damages and costs, including attorney’s fees, as a result of the discharge from the department’s cleanup operations, the department shall pay for all actual damages and costs, including, but not limited to, the cost of bringing the facility into compliance with any state or federal requirements.
(3) Should the discharge from the department’s cleanup operations exceed agreed upon pretreatment limits, the department shall pay the local government an agreed upon sum for each occasion that the discharge exceeds pretreatment limits without proof of damages as required by subsection (2).
(4) The limitation on damages provided by s. 768.28(5) shall not apply to any obligation or payment which may become due under this section.
History.s. 10, ch. 86-186.
403.087 Permits; general issuance; denial; revocation; prohibition; penalty.
(1) A stationary installation that is reasonably expected to be a source of air or water pollution must not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In no event shall a permit for a water pollution source be issued for a term of more than 10 years, nor may an operation permit issued after July 1, 1992, for a major source of air pollution have a fixed term of more than 5 years. However, upon expiration, a new permit may be issued by the department in accordance with this chapter and the rules of the department.
(2) The department shall adopt, and may amend or repeal, rules for the issuance, denial, modification, and revocation of permits under this section.
(3) A renewal of an operation permit for a domestic wastewater treatment facility other than a facility regulated under the National Pollutant Discharge Elimination System (NPDES) Program under s. 403.0885 must be issued upon request for a term of up to 10 years, for the same fee and under the same conditions as a 5-year permit, in order to provide the owner or operator with a financial incentive, if:
(a) The waters from the treatment facility are not discharged to Class I municipal injection wells or the treatment facility is not required to comply with the federal standards under the Underground Injection Control Program under chapter 62-528 of the Florida Administrative Code;
(b) The treatment facility is not operating under a temporary operating permit or a permit with an accompanying administrative order and does not have any enforcement action pending against it by the United States Environmental Protection Agency, the department, or a local program approved under s. 403.182;
(c) The treatment facility has operated under an operation permit for 5 years and, for at least the preceding 2 years, has generally operated in conformance with the limits of permitted flows and other conditions specified in the permit;
(d) The department has reviewed the discharge-monitoring reports required under department rule and is satisfied that the reports are accurate;
(e) The treatment facility has generally met water quality standards in the preceding 2 years, except for violations attributable to events beyond the control of the treatment plant or its operator, such as destruction of equipment by fire, wind, or other abnormal events that could not reasonably be expected to occur; and
(f) The department, or a local program approved under s. 403.182, has conducted, in the preceding 12 months, an inspection of the facility and has verified in writing to the operator of the facility that it is not exceeding the permitted capacity and is in substantial compliance.

The department shall keep records of the number of 10-year permits applied for and the number and duration of permits issued for longer than 5 years.

(4) The department shall issue permits on such conditions as are necessary to effect the intent and purposes of this section.
(5) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules adopted by the department, except as provided in s. 403.088 or s. 403.0872. However, separate construction permits shall not be required for installations permitted under s. 403.0885, except that the department may require an owner or operator proposing to construct, expand, or modify such an installation to submit for department review, as part of application for permit or permit modification, engineering plans, preliminary design reports, or other information 90 days prior to commencing construction. The department may also require the engineer of record or another registered professional engineer, within 30 days after construction is complete, to certify that the construction was completed in accordance with the plans submitted to the department, noting minor deviations which were necessary because of site-specific conditions.
(6)(a) The department shall require a processing fee in an amount sufficient, to the greatest extent possible, to cover the costs of reviewing and acting upon any application for a permit or request for site-specific alternative criteria or for an exemption from water quality criteria and to cover the costs of surveillance and other field services and related support activities associated with any permit or plan approval issued pursuant to this chapter. The department shall review the fees authorized under this chapter at least once every 5 years and shall adjust the fees upward, as necessary, within the fee caps established in this paragraph to reflect changes in the Consumer Price Index or similar inflation indicator. The department shall establish by rule the inflation index to be used for this purpose. In the event of deflation, the department shall consult with the Executive Office of the Governor and the Legislature to determine whether downward fee adjustments are appropriate based on the current budget and appropriation considerations. However, when an application is received without the required fee, the department shall acknowledge receipt of the application and shall immediately return the unprocessed application to the applicant and shall take no further action until the application is received with the appropriate fee. The department shall adopt a schedule of fees by rule, subject to the following limitations:
1. The fee for any of the following may not exceed $32,500:
a. Hazardous waste, construction permit.
b. Hazardous waste, operation permit.
c. Hazardous waste, postclosure permit, or clean closure plan approval.
d. Hazardous waste, corrective action permit.
2. The permit fee for a drinking water construction or operation permit, not including the operation license fee required under s. 403.861(7), shall be at least $500 and may not exceed $15,000.
3. The permit fee for a Class I injection well construction permit may not exceed $12,500.
4. The permit fee for any of the following permits may not exceed $10,000:
a. Solid waste, construction permit.
b. Solid waste, operation permit.
c. Class I injection well, operation permit.
5. The permit fee for any of the following permits may not exceed $7,500:
a. Air pollution, construction permit.
b. Solid waste, closure permit.
c. Domestic waste residuals, construction or operation permit.
d. Industrial waste, operation permit.
e. Industrial waste, construction permit.
6. The permit fee for any of the following permits may not exceed $5,000:
a. Domestic waste, operation permit.
b. Domestic waste, construction permit.
7. The permit fee for any of the following permits may not exceed $4,000:
a. Wetlands resource management—(dredge and fill and mangrove alteration).
b. Hazardous waste, research and development permit.
c. Air pollution, operation permit, for sources not subject to s. 403.0872.
d. Class III injection well, construction, operation, or abandonment permits.
8. The permit fee for a drinking water distribution system permit, including a general permit, shall be at least $500 and may not exceed $1,000.
9. The permit fee for Class V injection wells, construction, operation, and abandonment permits may not exceed $750.
10. The permit fee for domestic waste collection system permits may not exceed $500.
11. The permit fee for stormwater operation permits may not exceed $100.
12. Except as provided in subparagraph 8., the general permit fees for permits that require certification by a registered professional engineer or professional geologist may not exceed $500, and the general permit fee for other permit types may not exceed $100.
13. The fee for a permit issued pursuant to s. 403.816 is $5,000, and the fee for any modification of such permit requested by the applicant is $1,000.
14. The regulatory program and surveillance fees for facilities permitted pursuant to s. 403.088 or s. 403.0885, or for facilities permitted pursuant to s. 402 of the Clean Water Act, as amended, 33 U.S.C. ss. 1251 et seq., and for which the department has been granted administrative authority, shall be limited as follows:
a. The fees for domestic wastewater facilities shall not exceed $7,500 annually. The department shall establish a sliding scale of fees based on the permitted capacity and shall ensure smaller domestic waste dischargers do not bear an inordinate share of costs of the program.
b. The annual fees for industrial waste facilities shall not exceed $11,500. The department shall establish a sliding scale of fees based upon the volume, concentration, or nature of the industrial waste discharge and shall ensure smaller industrial waste dischargers do not bear an inordinate share of costs of the program.
c. The department may establish a fee, not to exceed the amounts in subparagraphs 5. and 6., to cover additional costs of review required for permit modification or construction engineering plans.
(b) If substantially similar air pollution sources are to be constructed or modified at the same facility, the applicant may submit a single application and permit fee for construction or modification of the sources at that facility. If substantially similar air pollution sources located at the same facility do not constitute a major source of air pollution subject to permitting under s. 403.0872, the applicant may submit a single application and permit fee for the operation of those sources. The department may develop, by rule, criteria for determining what constitutes substantially similar sources.
(c) The fee schedule shall be adopted by rule. The amount of each fee shall be reasonably related to the costs of permitting, field services, and related support activities for the particular permitting activity taking into consideration consistently applied standard cost-accounting principles and economies of scale. If the department requires, by rule or by permit condition, that a permit be renewed more frequently than once every 5 years, the permit fee shall be prorated based upon the permit fee schedule in effect at the time of permit renewal.
(d) Nothing in this subsection authorizes the construction or expansion of any stationary installation except to the extent specifically authorized by department permit or rule.
(e) For all domestic waste collection system permits and drinking water distribution system permits, the department shall adopt a fee schedule, by rule, based on a sliding scale relating to pipe diameter, length of the proposed main, or equivalent dwelling units, or any combination of these factors. The department shall require a separate permit application and fee for each noncontiguous project within the system.
(7) A permit issued pursuant to this section shall not become a vested right in the permittee. The department may revoke any permit issued by it if it finds that the permitholder:
(a) Has submitted false or inaccurate information in his or her application;
(b) Has violated law, department orders, rules, or regulations, or permit conditions;
(c) Has failed to submit operational reports or other information required by department rule or regulation; or
(d) Has refused lawful inspection under s. 403.091.
(8) The department shall not issue a permit to any person for the purpose of engaging in, or attempting to engage in, any activity relating to the extraction of solid minerals not exempt pursuant to chapter 211 within any state or national park or state or national forest when the activity will degrade the ambient quality of the waters of the state or the ambient air within those areas. In the event the Federal Government prohibits the mining or leasing of solid minerals on federal park or forest lands, then, and to the extent of such prohibition, this act shall not apply to those federal lands.
(9) A violation of this section is punishable as provided in this chapter.
(10) Effective July 1, 2008, the minimum fee amounts shall be the minimum fees prescribed in this section, and such fee amounts shall remain in effect until the effective date of fees adopted by rule by the department.
History.s. 1, ch. 71-203; s. 4, ch. 74-133; s. 14, ch. 78-95; s. 14, ch. 82-27; s. 1, ch. 82-54; s. 1, ch. 82-122; s. 59, ch. 83-218; s. 24, ch. 84-338; s. 11, ch. 86-186; s. 2, ch. 87-125; s. 17, ch. 88-393; s. 29, ch. 91-305; s. 2, ch. 92-132; s. 72, ch. 93-213; s. 1, ch. 97-103; s. 20, ch. 97-236; s. 4, ch. 2000-304; s. 5, ch. 2003-173; s. 19, ch. 2008-150; s. 46, ch. 2009-21.
403.0871 Florida Permit Fee Trust Fund.There is established within the department a nonlapsing trust fund to be known as the “Florida Permit Fee Trust Fund.” All funds received from applicants for permits pursuant to ss. 161.041, 161.053, 161.0535, 403.087(6), and 403.861(7)(a) shall be deposited in the Florida Permit Fee Trust Fund and shall be used by the department with the advice and consent of the Legislature to supplement appropriations and other funds received by the department for the administration of its responsibilities under this chapter and chapter 161. In no case shall funds from the Florida Permit Fee Trust Fund be used for salary increases without the approval of the Legislature.
History.s. 2, ch. 82-122; s. 12, ch. 86-186; s. 30, ch. 91-305; s. 362, ch. 94-356; s. 60, ch. 96-321; s. 21, ch. 97-236; s. 47, ch. 2009-21.
403.0872 Operation permits for major sources of air pollution; annual operation license fee.Provided that program approval pursuant to 42 U.S.C. s. 7661a has been received from the United States Environmental Protection Agency, beginning January 2, 1995, each major source of air pollution, including electrical power plants certified under s. 403.511, must obtain from the department an operation permit for a major source of air pollution under this section. This operation permit is the only department operation permit for a major source of air pollution required for such source; provided, at the applicant’s request, the department shall issue a separate acid rain permit for a major source of air pollution that is an affected source within the meaning of 42 U.S.C. s. 7651a(1). Operation permits for major sources of air pollution, except general permits issued pursuant to s. 403.814, must be issued in accordance with the procedures contained in this section and in accordance with chapter 120; however, to the extent that chapter 120 is inconsistent with the provisions of this section, the procedures contained in this section prevail.
(1) For purposes of this section, a major source of air pollution means a stationary source of air pollution, or any group of stationary sources within a contiguous area and under common control, which emits any regulated air pollutant and which is:
(a) A major source within the meaning of 42 U.S.C. s. 7412(a)(1);
(b) A major stationary source or major emitting facility within the meaning of 42 U.S.C. s. 7602(j) or 42 U.S.C. subchapter I, part C or part D;
(c) An affected source within the meaning of 42 U.S.C. s. 7651a(1);
(d) An air pollution source subject to standards or regulations under 42 U.S.C. s. 7411 or s. 7412; provided that a source is not a major source solely because of its regulation under 42 U.S.C. s. 7412(r); or
(e) A stationary air pollution source belonging to a category designated as a 40 C.F.R. part 70 source by regulations adopted by the administrator of the United States Environmental Protection Agency under 42 U.S.C. ss. 7661 et seq. The department shall exempt those facilities that are subject to this section solely because they are subject to requirements under 42 U.S.C. s. 7411 or s. 7412 or solely because they are subject to reporting requirements under 42 U.S.C. s. 7412 for as long as the exemption is available under federal law.
(2) An application for an operation permit for a major source of air pollution must be submitted in accordance with rules of the department governing permit applications. The department shall adopt rules defining the timing, content, and distribution of an application for a permit under this section. A permit application processing fee is not required. The department may issue an operation permit for a major source of air pollution only when it has reasonable assurance that the source applies pollution control technology, including fuel or raw material selection, necessary to enable it to comply with the standards or rules adopted by the department or an approved compliance plan for that source. If two or more major air pollution sources that belong to the same Major Group as described in the Standard Industrial Classification Manual, 1987, are operated at a single site, the owner may elect to receive a single operation permit covering all such sources at the site.
(a) An application for a permit under this section is timely and complete if it is submitted in accordance with department rules governing the timing of applications and substantially addresses the information specified in completeness criteria determined by department rule in accordance with applicable regulations of the United States Environmental Protection Agency governing the contents of applications for permits under 42 U.S.C. s. 7661b(d). Unless the department requests additional information or otherwise notifies the applicant of incompleteness within 60 days after receipt of an application, the application is complete.
(b) Any permitted air pollution source that submits a timely and complete application for a permit under this section is entitled to operate in compliance with its existing air permit pending the conclusion of proceedings associated with its application. Notwithstanding the timing requirements of paragraph (c) and subsection (3), the department may process applications received during the first year of permit processing under this section, in a manner consistent with 42 U.S.C. s. 7661b(c).
(c) The department may request additional information necessary to process a permit application subsequent to a determination of completeness in accordance with s. 403.0876(1).
(3) Within 90 days after the date on which the department receives all information necessary to process an application for a permit under this section, the department shall issue a draft permit or a determination that the requested permit should be denied. A draft permit must contain all conditions that the department finds necessary to ensure that operation of the source will be in compliance with applicable law, rules, or compliance plans. If the department proposes to deny the permit application, the department’s determination must provide an explanation for the denial. The department shall furnish a copy of each draft permit to the United States Environmental Protection Agency and to any contiguous state whose air quality could be affected or which is within 50 miles of the source pursuant to procedures established by department rule.
(4) The department shall require the applicant to publish notice of any draft permit in accordance with department rule. The department must accept public comment with respect to a draft permit for 30 days following the date of notice publication. The notice must be published in a newspaper of general circulation as defined in s. 403.5115(2). If comments received during this period result in a change in the draft permit, the department must issue a revised draft permit, which shall be supplied to the United States Environmental Protection Agency and to any contiguous state whose air quality could be affected or which is within 50 miles of the source.
(5) Any person whose substantial interests are affected by a draft permit or the denial determination may request an administrative hearing under ss. 120.569 and 120.57, in accordance with the rules of the department. A draft permit must notify the permit applicant of any review process applicable to the permit decision of the department. The department shall prescribe, by rule, a suitable standard format for such notification.
(6) If a hearing is not requested under ss. 120.569 and 120.57, the draft permit will become the department’s proposed permit but does not become final until the time for federal review of the proposed permit has elapsed. The department shall furnish the United States Environmental Protection Agency a copy of each proposed permit and its written response to any comments regarding the permit submitted by contiguous states. If no objection to the proposed permit is made by the United States Environmental Protection Agency within the time established by 42 U.S.C. s. 7661d, the proposed permit must become final no later than 55 days after the date on which the proposed permit was mailed to the United States Environmental Protection Agency. The department shall issue a conformed copy of the final permit as soon as is practicable thereafter.
(7) If a draft permit is the subject of an administrative hearing under ss. 120.569 and 120.57, a proposed permit containing changes, if any, resulting from the hearing process, after the conclusion of the hearing, must be issued and a copy must be provided to the applicant, to the United States Environmental Protection Agency, and to any contiguous state whose air quality could be affected or which is within 50 miles of the source, as soon as practicable. The proposed permit shall not become final until the time for review, by the United States Environmental Protection Agency, of the proposed permit has elapsed. If comments from a contiguous state regarding the permit are received, the department must provide a written response to the applicant, to the state, and to the United States Environmental Protection Agency. If no objection to the proposed permit is made by the United States Environmental Protection Agency within the time established by 42 U.S.C. s. 7661d, the proposed permit must become final no later than 55 days after the date on which the proposed permit was mailed to the United States Environmental Protection Agency. The department shall issue a conformed copy of the final permit as soon as is practicable thereafter.
(8) If the administrator of the United States Environmental Protection Agency timely objects to a proposed permit under this section, the department must not issue a final permit until the objection is resolved or withdrawn. A copy of the written objection of the administrator must be provided to the permit applicant as soon as practicable after the department receives it. Within 45 days after the date on which the department serves the applicant with a copy of an objection by the United States Environmental Protection Agency to a proposed permit, the applicant may file a written reply to the objection. The written reply must include any supporting materials that the applicant desires to include in the record relevant to the issues raised by the objection. The written reply must be considered by the department in issuing a final permit to resolve the objection of the administrator. A final permit issued by the department to resolve an objection of the administrator is not subject to ss. 120.569 and 120.57.
(9) A final permit issued under this section is subject to judicial review under s. 120.68. If judicial review of a final permit results in material changes to the conditions of the permit, the department shall notify the United States Environmental Protection Agency and any state that is contiguous to this state whose air quality could be affected or that is within 50 miles of the source, pursuant to rules of the department.
(10) If the department is notified by the administrator of the United States Environmental Protection Agency that cause exists to terminate, modify, or revoke and reissue a permit under this section, the department shall, within 90 days after receipt of such notification, furnish to the administrator and the permittee a proposed determination of termination, modification, or revocation and reissuance as appropriate. Within 45 days after the date on which the department notifies the permittee that the United States Environmental Protection Agency proposes action regarding its permit, the permittee may file a written response concerning the proposed action. The written response must include any supporting materials that the permittee desires to include in the record relevant to the issues raised by the proposed action. The permittee’s written response must be considered by the department in formulating its proposed determination under this subsection.
(11) Each major source of air pollution permitted to operate in this state must pay between January 15 and March 1 of each year, upon written notice from the department, an annual operation license fee in an amount determined by department rule. The annual operation license fee shall be terminated immediately in the event the United States Environmental Protection Agency imposes annual fees solely to implement and administer the major source air-operation permit program in Florida under 40 C.F.R. s. 70.10(d).
(a) The annual fee must be assessed based upon the source’s previous year’s emissions and must be calculated by multiplying the applicable annual operation license fee factor times the tons of each regulated air pollutant (except carbon monoxide) allowed to be emitted per hour by specific condition of the source’s most recent construction or operation permit, times the annual hours of operation allowed by permit condition; provided, however, that:
1. The license fee factor is $25 or another amount determined by department rule which ensures that the revenue provided by each year’s operation license fees is sufficient to cover all reasonable direct and indirect costs of the major stationary source air-operation permit program established by this section. The license fee factor may be increased beyond $25 only if the secretary of the department affirmatively finds that a shortage of revenue for support of the major stationary source air-operation permit program will occur in the absence of a fee factor adjustment. The annual license fee factor may never exceed $35.
2. For any source that operates for fewer hours during the calendar year than allowed under its permit, the annual fee calculation must be based upon actual hours of operation rather than allowable hours if the owner or operator of the source documents the source’s actual hours of operation for the calendar year. For any source that has an emissions limit that is dependent upon the type of fuel burned, the annual fee calculation must be based on the emissions limit applicable during actual hours of operation.
3. For any source whose allowable emission limitation is specified by permit per units of material input or heat input or product output, the applicable input or production amount may be used to calculate the allowable emissions if the owner or operator of the source documents the actual input or production amount. If the input or production amount is not documented, the maximum allowable input or production amount specified in the permit must be used to calculate the allowable emissions.
4. For any new source that does not receive its first operation permit until after the beginning of a calendar year, the annual fee for the year must be reduced pro rata to reflect the period during which the source was not allowed to operate.
5. For any source that emits less of any regulated air pollutant than allowed by permit condition, the annual fee calculation for such pollutant must be based upon actual emissions rather than allowable emissions if the owner or operator documents the source’s actual emissions by means of data from a department-approved certified continuous emissions monitor or from an emissions monitoring method which has been approved by the United States Environmental Protection Agency under the regulations implementing 42 U.S.C. ss. 7651 et seq., or from a method approved by the department for purposes of this section.
6. The amount of each regulated air pollutant in excess of 4,000 tons per year allowed to be emitted by any source, or group of sources belonging to the same Major Group as described in the Standard Industrial Classification Manual, 1987, may not be included in the calculation of the fee. Any source, or group of sources, which does not emit any regulated air pollutant in excess of 4,000 tons per year, is allowed a one-time credit not to exceed 25 percent of the first annual licensing fee for the prorated portion of existing air-operation permit application fees remaining upon commencement of the annual licensing fees.
7. If the department has not received the fee by February 15 of the calendar year, the permittee must be sent a written warning of the consequences for failing to pay the fee by March 1. If the fee is not postmarked by March 1 of the calendar year, the department shall impose, in addition to the fee, a penalty of 50 percent of the amount of the fee, plus interest on such amount computed in accordance with s. 220.807. The department may not impose such penalty or interest on any amount underpaid, provided that the permittee has timely remitted payment of at least 90 percent of the amount determined to be due and remits full payment within 60 days after receipt of notice of the amount underpaid. The department may waive the collection of underpayment and shall not be required to refund overpayment of the fee, if the amount due is less than 1 percent of the fee, up to $50. The department may revoke any major air pollution source operation permit if it finds that the permitholder has failed to timely pay any required annual operation license fee, penalty, or interest.
8. Notwithstanding the computational provisions of this subsection, the annual operation license fee for any source subject to this section shall not be less than $250, except that the annual operation license fee for sources permitted solely through general permits issued under s. 403.814 shall not exceed $50 per year.
9. Notwithstanding the provisions of s. 403.087(6)(a)5.a., authorizing air pollution construction permit fees, the department may not require such fees for changes or additions to a major source of air pollution permitted pursuant to this section, unless the activity triggers permitting requirements under Title I, Part C or Part D, of the federal Clean Air Act, 42 U.S.C. ss. 7470-7514a. Costs to issue and administer such permits shall be considered direct and indirect costs of the major stationary source air-operation permit program under s. 403.0873. The department shall, however, require fees pursuant to the provisions of s. 403.087(6)(a)5.a. for the construction of a new major source of air pollution that will be subject to the permitting requirements of this section once constructed and for activities triggering permitting requirements under Title I, Part C or Part D, of the federal Clean Air Act, 42 U.S.C. ss. 7470-7514a.
(b) Annual operation license fees collected by the department must be sufficient to cover all reasonable direct and indirect costs required to develop and administer the major stationary source air-operation permit program, which shall consist of the following elements to the extent that they are reasonably related to the regulation of major stationary air pollution sources, in accordance with United States Environmental Protection Agency regulations and guidelines:
1. Reviewing and acting upon any application for such a permit.
2. Implementing and enforcing the terms and conditions of any such permit, excluding court costs or other costs associated with any enforcement action.
3. Emissions and ambient monitoring.
4. Preparing generally applicable regulations or guidance.
5. Modeling, analyses, and demonstrations.
6. Preparing inventories and tracking emissions.
7. Implementing the Small Business Stationary Source Technical and Environmental Compliance Assistance Program.
8. Any audits conducted under paragraph (c).
(c) An audit of the major stationary source air-operation permit program must be conducted 2 years after the United States Environmental Protection Agency has given full approval of the program to ascertain whether the annual operation license fees collected by the department are used solely to support any reasonable direct and indirect costs as listed in paragraph (b). A program audit must be performed biennially after the first audit.
(12) Permits issued under this section must allow changes within a permitted facility without requiring a permit revision, if the changes are not physical changes in, or changes in the method of operation of, the facility which increase the amount of any air pollutant emitted by the facility or which result in the emission of any air pollutant not previously emitted by the facility, and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions), provided that the facility provides the administrator and the department with 30 days’ written, advance notice of the proposed changes. The department shall adopt rules implementing this flexibility requirement.
(13)(a) In order to ensure statewide consistency in the implementation of the national Acid Deposition Control Allowance Transfer System, a department district office or local pollution control program may not issue or administer permits under this section for any electrical power plant or any source that participates in the allowance transfer system.
(b) For emission units that are subject to continuous monitoring requirements under 42 U.S.C. ss. 7661-7661f or 40 C.F.R. part 75, compliance with nitrogen oxides emission limits shall be demonstrated based on a 30-day rolling average, except as specifically provided by 40 C.F.R. part 60 or part 76.
(14) In order to ensure statewide consistency in the permitting of major sources, a local pollution control program may not issue permits under this section for sources that belong to Major Group 26, Paper and Allied Products; for sources that belong to Major Group 28, Chemicals and Allied Products; or for sources that belong to Industry Number 2061, Cane Sugar, Except Refining, as defined in the Standard Industrial Classification Manual, 1987.
(15) Any permittee that operates in compliance with an air-operation permit issued under this section is deemed to be in compliance with applicable permit requirements of the Clean Air Act and all implementing state, local, and federal air pollution control rules and regulations and all provisions of this chapter, relating to air pollution, and rules adopted thereunder.
(16) The department shall adopt a rule to provide for a procedure for notice to the appropriate approved local pollution control programs, pursuant to s. 403.182, of any draft permits, amended draft permits, or final permits issued by the department.
(17) The administrator of the United States Environmental Protection Agency may intervene as a matter of right in any administrative or judicial proceeding relating to an operation permit for a major source of air pollution required under this section.
(18) The department shall require certification of all applications, submittals, and reports by a responsible official of a major source of air pollution and shall require the inclusion of those specific federal requirements listed at 42 U.S.C. s. 7661a(f)(1), (2), and (3) in all permits to which such terms apply.
History.s. 3, ch. 92-132; s. 3, ch. 93-94; s. 2, ch. 94-321; s. 1, ch. 95-223; s. 3, ch. 95-292; s. 10, ch. 96-370; s. 130, ch. 96-410; s. 8, ch. 97-222; s. 22, ch. 97-236; s. 18, ch. 97-277; s. 26, ch. 2000-153; s. 59, ch. 2000-158; s. 13, ch. 2000-211; s. 13, ch. 2000-304; s. 17, ch. 2008-150; s. 85, ch. 2010-5.
403.0873 Florida Air-Operation License Fee Account.The “Florida Air-Operation License Fee Account” is established as a nonlapsing account within the Department of Environmental Protection’s Air Pollution Control Trust Fund. All license fees paid pursuant to s. 403.0872(11) shall be deposited in such account and must be used solely by the department and approved local programs under the advice and consent of the Legislature to pay the direct and indirect costs required to develop and administer the major stationary source air-operation permit program. Any approved local pollution control program that accepts funds from the department as reimbursement for services it performs in the implementation of the major source air-operation permit program, receives delegation from the department or the United States Environmental Protection Agency for implementation of the major source air-operation permit program, or performs functions, duties, or activities substantially similar to or duplicative of the services performed by the department or the United States Environmental Protection Agency in the implementation of the major source air-operation permit program is prohibited from collecting additional fees attributable to such services from any source permitted under s. 403.0872.
History.s. 5, ch. 92-132; s. 3, ch. 94-321; s. 363, ch. 94-356.
403.08735 Air emissions trading.
(1) GENERIC AIR EMISSIONS BUBBLE RULE.The department shall promulgate by July 1, 1996, a generic air emissions bubble rule to the fullest extent consistent with federal law that includes all elements necessary to obtain approval from the United States Environmental Protection Agency to administer the program. The generic air emissions bubble rule shall eliminate the need for case-by-case federal determinations on individual emissions trades within a single facility as individual State Implementation Plan revisions. For purposes of promulgating a generic air emissions bubble rule:
(a) The term “bubble” shall mean an air pollution control strategy which allows multiunit aggregate emission limits to be established within a facility, in lieu of unit-specific emission limits, on a pollutant-specific basis at the request of the facility owner or operator. The application of a bubble to a facility would allow emissions at one or more emissions points or units to fluctuate within a facility as long as the multiunit limit is not exceeded. Multiunit limits shall be established by aggregating unit-specific limits for all new or existing units being included in the bubble. The bubble shall also allow the department to establish, at the request of the owner or operator of a facility, alternative emission limits for individual units as long as the aggregated emissions limit for all involved units is not increased.
(b) The term “facility” shall mean all emissions units that are located on one or more contiguous or adjacent properties that are under common control of the same person or persons. For purposes of this section, the terms “plantwide” and “facilitywide” are used interchangeably.
(2) VOLUNTARY LIMITS ON AIR EMISSIONS.The department shall adopt rules to allow facilities to voluntarily limit their emissions to avoid otherwise applicable requirements.
History.s. 1, ch. 95-292; s. 36, ch. 99-5.
403.0875 Citation of rule.In addition to any other provisions within this part or any rules promulgated hereunder, the permitting agency shall, when requesting information for a permit application pursuant to this part or such rules promulgated hereunder, cite a specific rule. If a request for information cannot be accompanied by a rule citation, failure to provide such information cannot be grounds to deny a permit.
History.s. 7, ch. 79-161.
403.0876 Permits; processing.
(1) Within 30 days after receipt of an application for a permit under this chapter, the department shall review the application and shall request submittal of all additional information the department is permitted by law to require. If the applicant believes any departmental request for additional information is not authorized by law or departmental rule, the applicant may request a hearing pursuant to ss. 120.569 and 120.57. Within 30 days after receipt of such additional information, the department shall review it and may request only that information needed to clarify such additional information or to answer new questions raised by or directly related to such additional information. If the applicant believes the request of the department for such additional information is not authorized by law or departmental rule, the department, at the applicant’s request, shall proceed to process the permit application.
(2)(a) A permit shall be approved or denied within 90 days after receipt of the original application, the last item of timely requested additional material, or the applicant’s written request to begin processing the permit application.
(b) The failure of the department to approve or deny a permit for an underground injection well, within the 90-day time period shall not result in the automatic approval or denial of the permit and shall not prevent the inclusion of specific permit conditions which are necessary to ensure compliance with applicable statutes and rules. If the department fails to approve or deny such a permit within the 90-day period, the applicant may petition for a writ of mandamus to compel the department to act consistently with applicable regulatory requirements.
(c) The failure of the department to approve or deny an application for an operation permit for a major source of air pollution, as defined in s. 403.0872, within the 90-day time period shall not result in the automatic approval or denial of the permit and shall not prevent the inclusion of specific permit conditions which are necessary to ensure compliance with applicable statutes and rules. If the department fails to approve or deny an operation permit for a major source of air pollution within the 90-day period specified in s. 403.0872, the applicant or a party who participated in the public comment process may petition for a writ of mandamus to compel the department to act.
(d) Permits issued pursuant to s. 403.088 or s. 403.0885 shall be processed in accordance with s. 403.0885(3).
(3)(a) The department shall establish a special unit for permit coordination and processing to provide expeditious processing of department permits which the district offices are unable to process expeditiously and to provide accelerated processing of certain permits or renewals for economic and operating stability. The ability of the department to process applications under this subsection in a more timely manner than allowed by subsections (1) and (2) is dependent upon the timely exchange of information between the applicant and the department and the intervention of outside parties as allowed by law. An applicant may request the processing of its permit application by the special unit if the application is from an area of high unemployment or low per capita income, is from a business or industry that is the primary employer within an area’s labor market, or is in an industry with respect to which the complexities involved in the review of the application require special skills uniquely available in the headquarters office. The department may require the applicant to waive the 90-day time limitation for department issuance or denial of the permit once for a period not to exceed 90 days. The department may require a special fee to cover the direct cost of processing special applications in addition to normal permit fees and costs. The special fee may not exceed $10,000 per permit required. Applications for renewal permits, but not applications for initial permits, required for facilities pursuant to the Electrical Power Plant Siting Act or the Florida Electric Transmission Line Siting Act may be processed under this subsection. Personnel staffing the special unit shall have lengthy experience in permit processing.
(b) At the applicant’s discretion and notwithstanding any other provisions of chapter 120, a permit processed under this subsection is subject to an expedited administrative hearing pursuant to ss. 120.569 and 120.57. To request such hearing, the applicant must notify the Division of Administrative Hearings, the department, and all other parties in writing within 15 days after his or her receipt of notice of assignment of an administrative law judge from the division. The division shall conduct a hearing within 45 days after receipt of the request for such expedited hearing.
History.s. 2, ch. 80-66; s. 25, ch. 84-338; s. 13, ch. 86-186; s. 14, ch. 88-393; s. 6, ch. 92-132; s. 4, ch. 93-94; s. 73, ch. 93-213; s. 364, ch. 94-356; s. 131, ch. 96-410; s. 1006, ch. 97-103; s. 69, ch. 2006-230.
403.0877 Certification by professionals regulated by the Department of Business and Professional Regulation.
(1) Nothing in this section shall be construed as specific authority for a water management district or the department to require certification by a professional engineer licensed under chapter 471, a professional landscape architect licensed under part II of chapter 481, a professional geologist licensed under chapter 492, or a professional surveyor and mapper licensed under chapter 472, for an activity that is not within the definition or scope of practice of the regulated profession.
(2) If an application for a permit or license to conduct an activity regulated under this chapter, chapter 373, chapter 376, or any permitting program delegated to a water management district by a state agency, or to undertake corrective action of such activity or program ordered by the department or a water management district, requires the services of a professional as enumerated in subsection (1), the department or governing board of a water management district may require, by rule, in conjunction with such an application or any submittals required as a condition of granting a permit or license, or in conjunction with the order of corrective action, such certification by the professional as is necessary to ensure that the proposed activity or corrective action is designed, constructed, operated, and maintained in accordance with applicable law and rules of the department or district and in conformity with proper and sound design principles, or other such certification by the professional as may be necessary to ensure compliance with applicable law or rules of the department or district. The department or governing board of a water management district may further require as a condition of granting a permit or license, or in conjunction with ordering corrective action that the professional certify upon completion of the permitted or licensed activity or corrective action that such activity or corrective action has, to the best of his or her knowledge, been completed in substantial conformance with the plans and specifications approved by the department or board.
(3) The cost of such certifications by the professional shall be borne by the permittee or the person ordered to correct the permitted activity.
(4) A permitted or licensed activity or corrective action that is required to be so certified upon completion of the activity or action may not be placed into use or operation until the professional’s certificate is filed with the department or board.
History.s. 9, ch. 89-324; s. 31, ch. 91-305; s. 115, ch. 94-119; s. 53, ch. 94-218; s. 2, ch. 97-103.
1403.088 Water pollution operation permits; conditions.
(1) Without the written authorization of the department, a person may not discharge any waste into the waters of the state which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for such waters. However, this section does not prohibit the application of pesticides to such waters for the control of insects, aquatic weeds, algae, or other pests if the application is performed in accordance with this section.
(a) Upon execution of the agreement required in s. 487.163(3), the department may develop a permit or other authorization as required by 33 U.S.C. s. 1342 for the application of pesticides. A person must obtain such permit or other authorization before applying pesticides to the waters of the state.
(b) In consultation with the Department of Agriculture and Consumer Services and the Fish and Wildlife Conservation Commission, the department shall also develop a general permit under s. 403.0885(2), for the application of pesticides.
(c) The department shall also enter into agreements with the Department of Agriculture and Consumer Services in the case of insect or other pest control, and with the Fish and Wildlife Conservation Commission in the case of aquatic weed, other aquatic pests, or algae control. Such agreements must provide for public health, welfare, and safety, as well as environmental factors, and must ensure that pesticides applied to waters of the state are regulated uniformly, including provisions for the coordination of agency staff and resources, through the implementation of permitting, compliance, and enforcement activities under s. 403.0885 and this section. Pesticides that are approved for a particular use by the United States Environmental Protection Agency or by the Department of Agriculture and Consumer Services and applied in accordance with registered label instructions, state standards for such application, including any permit or other authorization required by this subsection, and the Florida Pesticide Law, part I of chapter 487, are allowed a temporary deviation from the acute toxicity provisions of the department’s rule establishing surface water quality standards, not to exceed the time necessary to control the target pests and only if the application does not reduce the quality of the receiving waters below the classification for such waters and is not likely to adversely affect any threatened or endangered species.
(2)(a) Any person intending to discharge wastes into waters of the state shall make application to the department for any appropriate permit required by this chapter. Application shall be made on a form prescribed by the department and shall contain such information as the department requires.
(b) If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. If the department finds that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.
(c) A permit shall:
1. Specify the manner, nature, volume, and frequency of the discharge permitted;
2. Require proper operation and maintenance of any pollution abatement facility by qualified personnel in accordance with standards established by the department;
3. Contain such additional conditions, requirements, and restrictions as the department deems necessary to preserve and protect the quality of the receiving waters;
4. Be valid for the period of time specified therein; and
5. Constitute the state National Pollutant Discharge Elimination System permit when issued pursuant to the authority in s. 403.0885.
(d) An operation permit may be renewed upon application to the department if the discharge complies with permit conditions and applicable statutes and rules. No operation permit shall be renewed or issued if the department finds that the discharge will not comply with permit conditions or applicable statutes and rules.
(e) However, if the discharge will not meet permit conditions or applicable statutes and rules, the department may issue, renew, revise, or reissue the operation permit if:
1. The applicant is constructing, installing, or placing into operation, or has submitted plans and a reasonable schedule for constructing, installing, or placing into operation, an approved pollution abatement facility or alternative waste disposal system;
2. The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternative waste disposal system;
3. There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state;
4. The granting of an operation permit will be in the public interest;
5. The discharge will not be unreasonably destructive to the quality of the receiving waters; or
6. A water quality credit trade that meets the requirements of s. 403.067.
(f) A permit issued, renewed, or reissued pursuant to paragraph (e) shall be accompanied by an order establishing a schedule for achieving compliance with all permit conditions. Such permit may require compliance with the accompanying order.
(g) The Legislature finds that the restoration of the South Florida ecosystem is in the public interest. Accordingly, whenever a facility to be constructed, operated, or maintained in accordance with s. 373.1501, s. 373.1502, s. 373.4595, or s. 373.4592 is subjected to permitting requirements pursuant to chapter 373 or this chapter, and the issuance of the initial permit for a new source, a new discharger, or a recommencing discharger is subjected to a request for hearing pursuant to s. 120.569, the administrative law judge may, upon motion by the permittee, issue a recommended order to the secretary who, within 5 days, shall issue an order authorizing the interim construction, operation, and maintenance of the facility if it complies with all uncontested conditions of the proposed permit and all other conditions recommended by the administrative law judge during the period until the final agency action on the permit.
1. An order authorizing such interim construction, operation, and maintenance shall be granted if requested by motion and no party opposes it.
2. If a party to the administrative hearing pursuant to ss. 120.569 and 120.57 opposes the motion, the administrative law judge shall issue a recommended order granting the motion if the administrative law judge finds that:
a. The facility is likely to receive the permit; and
b. The environment will not be irreparably harmed by the construction, operation, or maintenance of the facility pending final agency action on the permit.
3. Prior to granting a contested motion for interim construction, operation, or maintenance of a facility regulated or otherwise permitted by s. 373.1501, s. 373.1502, s. 373.4595, or s. 373.4592, the administrative law judge shall conduct a hearing using the summary hearing process defined in s. 120.574, which shall be mandatory for motions made pursuant to this paragraph. Notwithstanding the provisions of s. 120.574(1), summary hearing proceedings for these facilities shall begin within 30 days of the motion made by the permittee. Within 15 days of the conclusion of the summary proceeding, the administrative law judge shall issue a recommended order either denying or approving interim construction, operation, or maintenance of the facility, which shall be submitted to the secretary who shall within 5 days thereafter, enter an order granting or denying interim construction operation or maintenance of the facility. The order shall remain in effect until final agency action is taken on the permit.
(3)(a) The provisions of this section shall not be construed to repeal or restrict any other provisions of this chapter, but shall be cumulative thereto.
(b) This section shall not be construed to exempt any permittee from the pollution control requirements of any local air and water pollution control rule, regulation, ordinance, or code, or to authorize or allow any violation thereof.
(4) Notwithstanding any act to the contrary, if the discharge from any sewage disposal or treatment plant is permitted pursuant to this chapter and by a local pollution control program, the discharge shall be deemed lawful. Further, any person, firm, corporation, or public body that constructs, reconstructs, extends, or increases the capacity or volume of any sewage disposal or treatment plant pursuant to permits or authorizations under this chapter and through any local pollution control program shall not be subject to an action by the state attorney to restrain, enjoin, or otherwise prevent such construction, reconstruction, extension, or increase.
History.ss. 2, 3, 5, ch. 71-203; s. 1, ch. 73-360; s. 5, ch. 74-133; s. 2, ch. 76-112; s. 1, ch. 77-174; s. 14, ch. 78-95; s. 2, ch. 78-98; s. 97, ch. 79-164; s. 60, ch. 83-218; s. 14, ch. 86-186; s. 74, ch. 93-213; s. 365, ch. 94-356; s. 1, ch. 97-98; s. 159, ch. 99-8; s. 1, ch. 99-11; s. 27, ch. 2000-153; s. 8, ch. 2001-172; s. 5, ch. 2004-64; s. 2, ch. 2008-189; s. 47, ch. 2009-86; ss. 4, 11, ch. 2010-277; HJR 5-A, Special Session A.
1Note.Section 11, ch. 2010-277, provides that “[t]his act shall take effect July 1, 2010.” Passed by the Senate and the House of Representatives over the Governor’s veto November 16, 2010. House Joint Resolution 5-A, 2010 Special Session A, provides that C.S. for C.S. for C.S. for H.B. 981, which became ch. 2010-277, is effective November 17, 2010.
403.0881 Wastewater or reuse or disposal systems or water treatment works; construction permits.The department may issue construction permits under s. 403.087 for wastewater systems, treatment works, or reuse or disposal systems based upon review of a preliminary design report, application forms, and other required information, all of which shall be formulated by department rule. Detailed construction plans and specifications shall not be required prior to issuance of a permit or a modification to a permit required under s. 403.087 or an operation permit required under s. 403.0885 unless such plans and specifications are required to secure federal funding and the project is expected to receive federal funding. Upon a demonstration that a system constructed in accordance with a construction permit issued pursuant to s. 403.087 operates as designed, the department shall issue a permit for operation of the system. However, an operation permit may be issued prior to the initiation of discharge, provided the department has reasonable assurance, based on the system design, that the provisions of s. 403.088 will be met.
History.s. 3, ch. 87-125; s. 75, ch. 93-213.
403.0882 Discharge of demineralization concentrate.
(1) The Legislature finds and declares that it is in the public interest to conserve and protect water resources, provide adequate water supplies and provide for natural systems, and promote brackish water demineralization as an alternative to withdrawals of freshwater groundwater and surface water by removing institutional barriers to demineralization and, through research, including demonstration projects, to advance water and water byproduct treatment technology, sound waste byproduct disposal methods, and regional solutions to water resources issues. In order to promote the state objective of alternative water supply development, including the use of demineralization technologies, and to encourage the conservation and protection of the state’s natural resources, the concentrate resulting from demineralization must be classified as potable water byproduct regardless of flow quantity and must be appropriately treated and discharged or reused.
(2) For the purposes of this section, the term:
(a) “Demineralization concentrate” means the concentrated byproduct water, brine, or reject water produced by ion exchange or membrane separation technologies such as reverse osmosis, membrane softening, ultrafiltration, membrane filtration, electrodialysis, and electrodialysis reversal used for desalination, softening, or reducing total dissolved solids during water treatment for public water supply purposes.
(b) “Small water utility business” means any facility that distributes potable water to two or more customers with a concentrate discharge of less than 50,000 gallons per day.
(3) The department shall initiate rulemaking no later than October 1, 2001, to address facilities that discharge demineralization concentrate. The department shall convene a technical advisory committee to assist in the development of the rules, which committee shall include one representative each from the demineralization industry, local government, water and wastewater utilities, the engineering profession, business, and environmental organizations. The technical advisory committee shall also include one member representing the five water management districts and one representative from the Fish and Wildlife Research Institute. In convening the technical advisory committee, consideration must be given to geographical balance. The rules must address, at a minimum:
(a) Permit application forms for concentrate disposal;
(b) Specific options and requirements for demineralization concentrate disposal, including a standardized list of effluent and monitoring parameters, which may be adjusted or expanded by the department as necessary to protect water quality;
(c) Specific requirements and accepted methods for evaluating mixing of effluent in receiving waters; and
(d) Specific toxicity provisions.
(4)(a) For facilities that discharge demineralization concentrate, the failure of whole effluent toxicity tests predominantly due to the presence of constituents naturally occurring in the source water, limited to calcium, potassium, sodium, magnesium, chloride, bromide, and other constituents designated by the department, may not be the basis for denial of a permit, denial of a permit renewal, revocation of a permit, or other enforcement action by the department as long as the volume of water necessary to achieve water quality standards is available within a distance not in excess of two times the natural water depth at the point of discharge under all flow conditions.
(b) If failure of whole effluent toxicity tests is due predominately to the presence of the naturally occurring constituents identified in paragraph (a), the department shall issue a permit for the demineralization concentrate discharge if:
1. The volume of water necessary to achieve water quality standards is available within a distance not in excess of two times the natural water depth at the point of discharge under all flow conditions; and
2. All other permitting requirements are met.

A variance for toxicity under the circumstance described in this paragraph is not required.

(c) Facilities that fail to meet the requirements of this subsection may be permitted in accordance with department rule, including all applicable moderating provisions such as variances, exemptions, and mixing zones.
(5) Blending of demineralization concentrate with reclaimed water shall be allowed in accordance with the department’s reuse rules.
(6) This subsection applies only to small water utility businesses.
(a) The discharge of demineralization concentrate from small water utility businesses is presumed to be allowable and permittable in all waters in the state if:
1. The discharge meets the effluent limitations in s. 403.086(4), except that high level disinfection is not required unless the presence of fecal coliforms in the source water will result in the discharge not meeting applicable water quality standards;
2. The discharge of demineralization concentrate achieves a minimum of 4-to-1 dilution within a distance not in excess of two times the natural water depth at the point of discharge under all flow conditions; and
3. The point of discharge is located at a reasonably accessible point that minimizes water quality impacts to the greatest extent possible.
(b) The presumption in paragraph (a) may be overcome only by a demonstration that one or more of the following conditions is present:
1. The discharge will be made directly into an Outstanding Florida Water, except as provided in chapter 90-262, Laws of Florida;
2. The discharge will be made directly to Class I or Class II waters;
3. The discharge will be made to a water body having a total maximum daily load established by the department and the discharge will cause or contribute to a violation of the established load;
4. The discharge fails to meet the requirements of the antidegradation policy contained in the department rules;
5. The discharge will be made to a sole-source aquifer;
6. The discharge fails to meet applicable surface water and groundwater quality standards; or
7. The results of any toxicity test performed by the applicant under paragraph (d) or by the department indicate that the discharge does not meet toxicity requirements at the boundary of the mixing zone under subparagraph (a)2.
(c) If one or more of the conditions in paragraph (b) has been demonstrated, the department may:
1. Require more stringent effluent limitations;
2. Require relocation of the discharge point or a change in the method of discharge;
3. Limit the duration or volume of the discharge; or
4. Prohibit the discharge if there is no alternative that meets the conditions of subparagraphs 1.-3.
(d) For facilities owned by small water utility businesses, the department may not:
1. Require those businesses to perform toxicity testing at other than the time of permit application, permit renewal, or any requested permit modification, unless the initial toxicity test or any subsequent toxicity test performed by the department does not meet toxicity requirements.
2. Require those businesses to obtain a water-quality-based effluent limitation determination.
(7) The department may adopt additional rules for the regulation of demineralization and to administer this section and s. 403.061(11)(b).
History.s. 43, ch. 97-160; s. 1, ch. 2001-188; s. 12, ch. 2004-264.
403.0885 Establishment of federally approved state National Pollutant Discharge Elimination System (NPDES) Program.
(1) The Legislature finds and declares that it is in the public interest to promote effective and efficient regulation of the discharge of pollutants into waters of the state and eliminate duplication of permitting programs by the United States Environmental Protection Agency under s. 402 of the Clean Water Act, Pub. L. No. 92-500, as amended, 33 U.S.C. ss. 1251 et seq., and the department under this chapter. It is further found that state implementation of the federal NPDES program, with sufficient time for legislative revision prior to the implementation of the state NPDES permit program by the department, would promote the orderly establishment of a state-administered NPDES program. It is the specific intent of the Legislature that permit fees charged by the department for processing of federally approved NPDES permits be adequate to cover the entire cost to the department of program management, for reviewing and acting upon any permit application, and to cover the cost of surveillance and other field services of any permits issued pursuant to this section.
(2) The department is empowered to establish a state NPDES program in accordance with s. 402 of the Clean Water Act, as amended. The department shall have the power and authority to assume the NPDES permitting program from the United States Environmental Protection Agency and to implement the program, including the general permitting program under 40 C.F.R. s. 122.28 and the pretreatment program under 40 C.F.R. part 403, in accordance with s. 402(b) of the Clean Water Act, as amended, and 40 C.F.R. part 123. Variance, thermal variance, and provisions for relief from criteria set forth in the Clean Water Act, as amended, and corresponding United States Environmental Protection Agency regulations shall be part of the assumed NPDES permitting program. The department may not accept authorization to administer a state NPDES program for municipal stormwater for a period of 4 years following federal approval of the state NPDES program. The provisions governing upset and bypass conditions contained in 40 C.F.R. s. 122.41 shall apply to the state National Pollutant Discharge Elimination System Program. The state NPDES permit shall be the sole permit issued by the state under this chapter regulating the discharge of pollutants or wastes into surface waters within the state for discharges covered by the United States Environmental Protection Agency approved state NPDES program. This legislative authority is intended to be sufficient to enable the department to qualify for delegation of the federal NPDES program to the state and operate such program in accordance with federal law. Only that portion of the facility permit which authorizes a discharge pursuant to s. 402 of the Clean Water Act, as amended, shall be submitted to the United States Environmental Protection Agency for review under that section. To the extent other sections of this chapter apply and do not conflict with federal requirements, the application of such sections to discharges regulated under this section is not prohibited.
(3) An application for an NPDES permit and other approvals from the state relating to the permitted activity shall be granted or denied by the department within the time allowed for permit review under 40 C.F.R. part 124, subpart A. Other than for stormwater discharge permitting, the decision on issuance or denial of such permit may not be delegated to another agency or governmental authority. The department is specifically exempted from the time limitations provided in ss. 120.60 and 403.0876; provided that upon timely application for renewal, a permit issued under this section shall not expire until the application has been finally acted upon or until the last day for seeking judicial review of the agency order or a later date fixed by order of the reviewing court. However, if the department fails to render a permitting decision within the time allowed by 40 C.F.R. part 124, subpart A, or a memorandum of agreement executed by the department and the United States Environmental Protection Agency, whichever is shorter, the applicant may apply for an order from the circuit court requiring the department to render a decision within a specified time.
(4) The department shall respond, in writing, to any written comments on a pending application for a state NPDES permit which the department receives from the executive director, or his or her designee, of the Fish and Wildlife Conservation Commission on matters within the commenting agency’s jurisdiction. The department’s response shall not constitute agency action for purposes of ss. 120.569 and 120.57 or other provisions of chapter 120.
(5) Certified aquaculture activities under s. 597.004 that have individual production units whose annual production and water discharge are less than the parameters established by the NPDES program are exempt from wastewater management regulations. For purposes herein, the term “individual production units” shall be determined by rule of the Department of Agriculture and Consumer Services.
History.s. 23, ch. 88-393; s. 16, ch. 92-132; s. 76, ch. 93-213; s. 366, ch. 94-356; s. 132, ch. 96-410; s. 1007, ch. 97-103; s. 16, ch. 98-203; s. 22, ch. 98-333; s. 204, ch. 99-245.
403.08852 Clarification of requirements under rule 62-302.520(2), F.A.C.For purposes of rule 62-302.520(2), Florida Administrative Code, new sources of heated water discharges shall include an expansion, modification, alteration, replacement, or repair of an existing source only if that charge increases the potential thermal loading to surface waters of the state by 10 percent or more compared to the potential thermal loading from that source as of August 1972.
History.s. 6, ch. 95-215.
403.0891 State, regional, and local stormwater management plans and programs.The department, the water management districts, and local governments shall have the responsibility for the development of mutually compatible stormwater management programs.
(1) The department shall include goals in the water resource implementation rule for the proper management of stormwater.
(2) Each water management district to which the state’s stormwater management program is delegated shall establish district and, where appropriate, watershed or drainage basin stormwater management goals which are consistent with the goals adopted by the state and with plans adopted pursuant to ss. 373.451-373.4595, the Surface Water Improvement and Management Act.
(3)(a) Each local government required by chapter 163 to submit a comprehensive plan, whose plan is submitted after July 1, 1992, and the others when updated after July 1, 1992, in the development of its stormwater management program described by elements within its comprehensive plan shall consider the water resource implementation rule, district stormwater management goals, plans approved pursuant to the Surface Water Improvement and Management Act, ss. 373.451-373.4595, and technical assistance information provided by the water management districts pursuant to s. 373.711.
(b) Local governments are encouraged to consult with the water management districts, the Department of Transportation, and the department before adopting or updating their local government comprehensive plan or public facilities report as required by s. 189.415, whichever is applicable.
(4) The department, in coordination and cooperation with water management districts and local governments, shall conduct a continuing review of the costs of stormwater management systems and the effect on water quality and quantity, and fish and wildlife values. The department, the water management districts, and local governments shall use the review for planning purposes and to establish priorities for watersheds and stormwater management systems which require better management and treatment of stormwater with emphasis on the costs and benefits of needed improvements to stormwater management systems to better meet needs for flood protection and protection of water quality, and fish and wildlife values.
(5) The results of the review shall be maintained by the department and the water management districts and shall be provided to appropriate local governments or other parties on request. The results also shall be used in the development of the goals developed pursuant to subsections (1) and (2).
(6) The department and the Department of Community Affairs, in cooperation with local governments in the coastal zone, shall develop a model stormwater management program that could be adopted by local governments. The model program shall contain dedicated funding options, including a stormwater utility fee system based upon an equitable unit cost approach. Funding options shall be designed to generate capital to retrofit existing stormwater management systems, build new treatment systems, operate facilities, and maintain and service debt.
History.s. 15, ch. 86-186; s. 32, ch. 89-279; s. 73, ch. 93-206; s. 367, ch. 94-356; s. 25, ch. 97-160; s. 23, ch. 2010-205.
403.0893 Stormwater funding; dedicated funds for stormwater management.In addition to any other funding mechanism legally available to local government to construct, operate, or maintain stormwater systems, a county or municipality may:
(1) Create one or more stormwater utilities and adopt stormwater utility fees sufficient to plan, construct, operate, and maintain stormwater management systems set out in the local program required pursuant to s. 403.0891(3);
(2) Establish and set aside, as a continuing source of revenue, other funds sufficient to plan, construct, operate, and maintain stormwater management systems set out in the local program required pursuant to s. 403.0891(3); or
(3) Create, alone or in cooperation with counties, municipalities, and special districts pursuant to the Interlocal Cooperation Act, s. 163.01, one or more stormwater management system benefit areas. All property owners within said area may be assessed a per acreage fee to fund the planning, construction, operation, maintenance, and administration of a public stormwater management system for the benefited area. Any benefit area containing different land uses which receive substantially different levels of stormwater benefits shall include stormwater management system benefit subareas which shall be assessed different per acreage fees from subarea to subarea based upon a reasonable relationship to benefits received. The fees shall be calculated to generate sufficient funds to plan, construct, operate, and maintain stormwater management systems called for in the local program required pursuant to s. 403.0891(3). For fees assessed pursuant to this section, counties or municipalities may use the non-ad valorem levy, collection, and enforcement method as provided for in chapter 197.
History.s. 16, ch. 86-186; s. 34, ch. 89-279.
403.0896 Training and assistance for stormwater management system personnel.The Stormwater Management Assistance Consortium of the State University System, working in cooperation with the community colleges in the state, interested accredited private colleges and universities, the department, the water management districts, and local governments, shall develop training and assistance programs for persons responsible for designing, building, inspecting, or operating and maintaining stormwater management systems.
History.s. 33, ch. 89-279.
403.091 Inspections.
(1)(a) Any duly authorized representative of the department may at any reasonable time enter and inspect, for the purpose of ascertaining the state of compliance with the law or rules and regulations of the department, any property, premises, or place, except a building which is used exclusively for a private residence, on or at which:
1. A hazardous waste generator, transporter, or facility or other air or water contaminant source;
2. A discharger, including any nondomestic discharger which introduces any pollutant into a publicly owned treatment works;
3. Any facility, as defined in s. 376.301; or
4. A resource recovery and management facility

is located or is being constructed or installed or where records which are required under this chapter, ss. 376.30-376.317, or department rule are kept.

(b) Any duly authorized representative may at reasonable times have access to and copy any records required under this chapter or ss. 376.30-376.317; inspect any monitoring equipment or method; sample for any pollutants as defined in s. 376.301, effluents, or wastes which the owner or operator of such source may be discharging or which may otherwise be located on or underlying the owner’s or operator’s property; and obtain any other information necessary to determine compliance with permit conditions or other requirements of this chapter, ss. 376.30-376.317, or department rules.
(c) No person shall refuse reasonable entry or access to any authorized representative of the department who requests entry for purposes of inspection and who presents appropriate credentials; nor shall any person obstruct, hamper, or interfere with any such inspection. The owner or operator of the premises shall receive a report, if requested, setting forth all facts found which relate to compliance status.
(2) An inspection pursuant to subsection (1) may be conducted only after:
(a) Consent for the inspection is received from the owner, operator, or person in charge; or
(b) The appropriate inspection warrant as provided in this section is obtained.
(3)(a) An inspection warrant as authorized by this chapter may be issued by a judge of any county court or circuit court of this state which has jurisdiction of the place or thing to be searched.
(b) Upon proper affidavit being made, an inspection warrant may be issued under the provisions of this chapter or ss. 376.30-376.317:
1. When it appears that the properties to be inspected may be connected with or contain evidence of the violation of any of the provisions of this chapter or ss. 376.30-376.317 or any rule properly promulgated thereunder; or
2. When the inspection sought is an integral part of a larger scheme of systematic routine inspections which are necessary to, and consistent with, the continuing efforts of the department to ensure compliance with the provisions of this chapter or ss. 376.30-376.317 and any rules adopted thereunder.
(c) The judge shall, before issuing the warrant, have the application for the warrant duly sworn to and subscribed by a representative of the department; and may receive further testimony from witnesses, supporting affidavits, or depositions in writing to support the application. The affidavit and further proof, if had or required, shall set forth the facts tending to establish the grounds specified in paragraph (b) or the reasons for believing that such grounds exist.
(d) Upon examination of the application and proofs submitted and if satisfied that cause exists for the issuing of the inspection warrant, the judge shall thereupon issue a warrant, signed by him or her with the name of his or her office, to any department representative, which warrant will authorize the representative forthwith to inspect the property described in the warrant.
History.s. 10, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 80-302; s. 6, ch. 82-27; s. 26, ch. 84-338; s. 25, ch. 86-159; s. 9, ch. 89-188; s. 69, ch. 91-221; s. 3, ch. 97-103; s. 81, ch. 2007-5.
403.092 Package sewage treatment facilities; inspection.The department shall implement a program to conduct regular and continuing inspection of package sewage treatment facilities. To the greatest extent possible consistent with the abilities and the financial resources of local governments, the inspection program shall be delegated to local governments.
History.s. 4, ch. 83-310; s. 368, ch. 94-356.
403.111 Confidential records.
(1) Any information, other than effluent data and those records described in 42 U.S.C. s. 7661a(b)(8), relating to secret processes or secret methods of manufacture or production, or relating to costs of production, profits, or other financial information which is otherwise not public record, which may be required, ascertained, or discovered by inspection or investigation shall be exempt from the provisions of s. 119.07(1), shall not be disclosed in public hearings, and shall be kept confidential by any member, officer, or employee of the department, upon a showing satisfactory to the department that the information should be kept confidential. The person from whom the information is obtained must request that the department keep such information confidential and must inform the department of the basis for the claim of confidentiality. The department shall, subject to notice and opportunity for hearing, determine whether the information requested to be kept confidential should or should not be kept confidential. The department shall determine whether the information submitted should be kept confidential pursuant to the public purpose test as stated in 1s. 119.14(4)(b)3.
(2) Nothing in this section shall be construed to prevent the use of such records in judicial or administrative proceedings when ordered to be produced by appropriate subpoena or by order of the court or an administrative law judge. No such subpoena or order of the court or administrative law judge shall abridge or alter the rights or remedies of persons affected in the protection of trade secrets or secret processes, in the manner provided by law, and such persons affected may take any and all steps available by law to protect such trade secrets or processes.
(3) Information submitted by or required of permit applicants or permittees pursuant to s. 403.0885 is not subject to the provisions of this section but is subject to the provisions of 40 C.F.R. s. 122.7.
History.s. 12, ch. 67-436; ss. 26, 35, ch. 69-106; s. 6, ch. 74-133; s. 1, ch. 90-74; s. 5, ch. 93-94; s. 77, ch. 93-213; s. 239, ch. 96-406; s. 133, ch. 96-410.
1Note.Repealed by s. 1, ch. 95-217.
403.121 Enforcement; procedure; remedies.The department shall have the following judicial and administrative remedies available to it for violations of this chapter, as specified in s. 403.161(1).
(1) Judicial remedies:
(a) The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by any violation.
(b) The department may institute a civil action in a court of competent jurisdiction to impose and to recover a civil penalty for each violation in an amount of not more than $10,000 per offense. However, the court may receive evidence in mitigation. Each day during any portion of which such violation occurs constitutes a separate offense.
(c) Except as provided in paragraph (2)(c), it shall not be a defense to, or ground for dismissal of, these judicial remedies for damages and civil penalties that the department has failed to exhaust its administrative remedies, has failed to serve a notice of violation, or has failed to hold an administrative hearing prior to the institution of a civil action.
(2) Administrative remedies:
(a) The department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the state caused by any violation. The department may order that the violator pay a specified sum as damages to the state. Judgment for the amount of damages determined by the department may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.
(b) If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action. Except for violations involving hazardous wastes, asbestos, or underground injection, the department shall proceed administratively in all cases in which the department seeks administrative penalties that do not exceed $10,000 per assessment as calculated in accordance with subsections (3), (4), (5), (6), and (7). Pursuant to 42 U.S.C. s. 300g-2, the administrative penalty assessed pursuant to subsection (3), subsection (4), or subsection (5) against a public water system serving a population of more than 10,000 shall be not less than $1,000 per day per violation. The department shall not impose administrative penalties in excess of $10,000 in a notice of violation. The department shall not have more than one notice of violation seeking administrative penalties pending against the same party at the same time unless the violations occurred at a different site or the violations were discovered by the department subsequent to the filing of a previous notice of violation.
(c) An administrative proceeding shall be instituted by the department’s serving of a written notice of violation upon the alleged violator by certified mail. If the department is unable to effect service by certified mail, the notice of violation may be hand delivered or personally served in accordance with chapter 48. The notice shall specify the provision of the law, rule, regulation, permit, certification, or order of the department alleged to be violated and the facts alleged to constitute a violation thereof. An order for corrective action, penalty assessment, or damages may be included with the notice. When the department is seeking to impose an administrative penalty for any violation by issuing a notice of violation, any corrective action needed to correct the violation or damages caused by the violation must be pursued in the notice of violation or they are waived. However, no order shall become effective until after service and an administrative hearing, if requested within 20 days after service. Failure to request an administrative hearing within this time period shall constitute a waiver thereof, unless the respondent files a written notice with the department within this time period opting out of the administrative process initiated by the department to impose administrative penalties. Any respondent choosing to opt out of the administrative process initiated by the department in an action that seeks the imposition of administrative penalties must file a written notice with the department within 20 days after service of the notice of violation opting out of the administrative process. A respondent’s decision to opt out of the administrative process does not preclude the department from initiating a state court action seeking injunctive relief, damages, and the judicial imposition of civil penalties.
(d) If a person timely files a petition challenging a notice of violation, that person will thereafter be referred to as the respondent. The hearing requested by the respondent shall be held within 180 days after the department has referred the initial petition to the Division of Administrative Hearings unless the parties agree to a later date. The department has the burden of proving with the preponderance of the evidence that the respondent is responsible for the violation. No administrative penalties should be imposed unless the department satisfies that burden. Following the close of the hearing, the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty. When the department seeks to enforce that portion of a final order imposing administrative penalties pursuant to s. 120.69, the respondent shall not assert as a defense the inappropriateness of the administrative remedy. The department retains its final-order authority in all administrative actions that do not request the imposition of administrative penalties.
(e) After filing a petition requesting a formal hearing in response to a notice of violation in which the department imposes an administrative penalty, a respondent may request that a private mediator be appointed to mediate the dispute by contacting the Florida Conflict Resolution Consortium within 10 days after receipt of the initial order from the administrative law judge. The Florida Conflict Resolution Consortium shall pay all of the costs of the mediator and for up to 8 hours of the mediator’s time per case at $150 per hour. Upon notice from the respondent, the Florida Conflict Resolution Consortium shall provide to the respondent a panel of possible mediators from the area in which the hearing on the petition would be heard. The respondent shall select the mediator and notify the Florida Conflict Resolution Consortium of the selection within 15 days of receipt of the proposed panel of mediators. The Florida Conflict Resolution Consortium shall provide all of the administrative support for the mediation process. The mediation must be completed at least 15 days before the final hearing date set by the administrative law judge.
(f) In any administrative proceeding brought by the department, the prevailing party shall recover all costs as provided in ss. 57.041 and 57.071. The costs must be included in the final order. The respondent is the prevailing party when an order is entered awarding no penalties to the department and such order has not been reversed on appeal or the time for seeking judicial review has expired. The respondent shall be entitled to an award of attorney’s fees if the administrative law judge determines that the notice of violation issued by the department seeking the imposition of administrative penalties was not substantially justified as defined in s. 57.111(3)(e). No award of attorney’s fees as provided by this subsection shall exceed $15,000.
(g) Nothing herein shall be construed as preventing any other legal or administrative action in accordance with law. Nothing in this subsection shall limit the department’s authority provided in ss. 403.121, 403.131, and 403.141, to judicially pursue injunctive relief. When the department exercises its authority to judicially pursue injunctive relief, penalties in any amount up to the statutory maximum sought by the department must be pursued as part of the state court action and not by initiating a separate administrative proceeding. The department retains the authority to judicially pursue penalties in excess of $10,000 for violations not specifically included in the administrative penalty schedule, or for multiple or multiday violations alleged to exceed a total of $10,000. The department also retains the authority provided in ss. 403.121, 403.131, and 403.141, to judicially pursue injunctive relief and damages, if a notice of violation seeking the imposition of administrative penalties has not been issued. The department has the authority to enter into a settlement, either before or after initiating a notice of violation, and the settlement may include a penalty amount different from the administrative penalty schedule. Any case filed in state court because it is alleged to exceed a total of $10,000 in penalties may be settled in the court action for less than $10,000.
(h) Chapter 120 shall apply to any administrative action taken by the department or any delegated program pursuing administrative penalties in accordance with this section.
(3) Except for violations involving hazardous wastes, asbestos, or underground injection, administrative penalties must be calculated according to the following schedule:
(a) For a drinking water contamination violation, the department shall assess a penalty of $2,000 for a Maximum Containment Level (MCL) violation; plus $1,000 if the violation is for a primary inorganic, organic, or radiological Maximum Contaminant Level or it is a fecal coliform bacteria violation; plus $1,000 if the violation occurs at a community water system; and plus $1,000 if any Maximum Contaminant Level is exceeded by more than 100 percent. For failure to obtain a clearance letter prior to placing a drinking water system into service when the system would not have been eligible for clearance, the department shall assess a penalty of $3,000.
(b) For failure to obtain a required wastewater permit, other than a permit required for surface water discharge, the department shall assess a penalty of $1,000. For a domestic or industrial wastewater violation not involving a surface water or groundwater quality violation, the department shall assess a penalty of $2,000 for an unpermitted or unauthorized discharge or effluent-limitation exceedance. For an unpermitted or unauthorized discharge or effluent-limitation exceedance that resulted in a surface water or groundwater quality violation, the department shall assess a penalty of $5,000.
(c) For a dredge and fill or stormwater violation, the department shall assess a penalty of $1,000 for unpermitted or unauthorized dredging or filling or unauthorized construction of a stormwater management system against the person or persons responsible for the illegal dredging or filling, or unauthorized construction of a stormwater management system plus $2,000 if the dredging or filling occurs in an aquatic preserve, Outstanding Florida Water, conservation easement, or Class I or Class II surface water, plus $1,000 if the area dredged or filled is greater than one-quarter acre but less than or equal to one-half acre, and plus $1,000 if the area dredged or filled is greater than one-half acre but less than or equal to one acre. The administrative penalty schedule shall not apply to a dredge and fill violation if the area dredged or filled exceeds one acre. The department retains the authority to seek the judicial imposition of civil penalties for all dredge and fill violations involving more than one acre. The department shall assess a penalty of $3,000 for the failure to complete required mitigation, failure to record a required conservation easement, or for a water quality violation resulting from dredging or filling activities, stormwater construction activities or failure of a stormwater treatment facility. For stormwater management systems serving less than 5 acres, the department shall assess a penalty of $2,000 for the failure to properly or timely construct a stormwater management system. In addition to the penalties authorized in this subsection, the department shall assess a penalty of $5,000 per violation against the contractor or agent of the owner or tenant that conducts unpermitted or unauthorized dredging or filling. For purposes of this paragraph, the preparation or signing of a permit application by a person currently licensed under chapter 471 to practice as a professional engineer shall not make that person an agent of the owner or tenant.
(d) For mangrove trimming or alteration violations, the department shall assess a penalty of $5,000 per violation against the contractor or agent of the owner or tenant that conducts mangrove trimming or alteration without a permit as required by s. 403.9328. For purposes of this paragraph, the preparation or signing of a permit application by a person currently licensed under chapter 471 to practice as a professional engineer shall not make that person an agent of the owner or tenant.
(e) For solid waste violations, the department shall assess a penalty of $2,000 for the unpermitted or unauthorized disposal or storage of solid waste; plus $1,000 if the solid waste is Class I or Class III (excluding yard trash) or if the solid waste is construction and demolition debris in excess of 20 cubic yards, plus $1,000 if the waste is disposed of or stored in any natural or artificial body of water or within 500 feet of a potable water well, plus $1,000 if the waste contains PCB at a concentration of 50 parts per million or greater; untreated biomedical waste; friable asbestos greater than 1 cubic meter which is not wetted, bagged, and covered; used oil greater than 25 gallons; or 10 or more lead acid batteries. The department shall assess a penalty of $3,000 for failure to properly maintain leachate control; unauthorized burning; failure to have a trained spotter on duty at the working face when accepting waste; failure to provide access control for three consecutive inspections. The department shall assess a penalty of $2,000 for failure to construct or maintain a required stormwater management system.
(f) For an air emission violation, the department shall assess a penalty of $1,000 for an unpermitted or unauthorized air emission or an air-emission-permit exceedance, plus $1,000 if the emission results in an air quality violation, plus $3,000 if the emission was from a major source and the source was major for the pollutant in violation; plus $1,000 if the emission was more than 150 percent of the allowable level.
(g) For storage tank system and petroleum contamination violations, the department shall assess a penalty of $5,000 for failure to empty a damaged storage system as necessary to ensure that a release does not occur until repairs to the storage system are completed; when a release has occurred from that storage tank system; for failure to timely recover free product; or for failure to conduct remediation or monitoring activities until a no-further-action or site-rehabilitation completion order has been issued. The department shall assess a penalty of $3,000 for failure to timely upgrade a storage tank system. The department shall assess a penalty of $2,000 for failure to conduct or maintain required release detection; failure to timely investigate a suspected release from a storage system; depositing motor fuel into an unregistered storage tank system; failure to timely assess or remediate petroleum contamination; or failure to properly install a storage tank system. The department shall assess a penalty of $1,000 for failure to properly operate, maintain, or close a storage tank system.
(4) In an administrative proceeding, in addition to the penalties that may be assessed under subsection (3), the department shall assess administrative penalties according to the following schedule:
(a) For failure to satisfy financial responsibility requirements or for violation of s. 377.371(1), $5,000.
(b) For failure to install, maintain, or use a required pollution control system or device, $4,000.
(c) For failure to obtain a required permit before construction or modification, $3,000.
(d) For failure to conduct required monitoring or testing; failure to conduct required release detection; or failure to construct in compliance with a permit, $2,000.
(e) For failure to maintain required staff to respond to emergencies; failure to conduct required training; failure to prepare, maintain, or update required contingency plans; failure to adequately respond to emergencies to bring an emergency situation under control; or failure to submit required notification to the department, $1,000.
(f) Except as provided in subsection (2) with respect to public water systems serving a population of more than 10,000, for failure to prepare, submit, maintain, or use required reports or other required documentation, $500.
(5) Except as provided in subsection (2) with respect to public water systems serving a population of more than 10,000, for failure to comply with any other departmental regulatory statute or rule requirement not otherwise identified in this section, the department may assess a penalty of $500.
(6) For each additional day during which a violation occurs, the administrative penalties in subsection (3), subsection (4), and subsection (5) may be assessed per day per violation.
(7) The history of noncompliance of the violator for any previous violation resulting in an executed consent order, but not including a consent order entered into without a finding of violation, or resulting in a final order or judgment after the effective date of this law involving the imposition of $2,000 or more in penalties shall be taken into consideration in the following manner:
(a) One previous such violation within 5 years prior to the filing of the notice of violation will result in a 25-percent per day increase in the scheduled administrative penalty.
(b) Two previous such violations within 5 years prior to the filing of the notice of violation will result in a 50-percent per day increase in the scheduled administrative penalty.
(c) Three or more previous such violations within 5 years prior to the filing of the notice of violation will result in a 100-percent per day increase in the scheduled administrative penalty.
(8) The direct economic benefit gained by the violator from the violation, where consideration of economic benefit is provided by Florida law or required by federal law as part of a federally delegated or approved program, shall be added to the scheduled administrative penalty. The total administrative penalty, including any economic benefit added to the scheduled administrative penalty, shall not exceed $10,000.
(9) The administrative penalties assessed for any particular violation shall not exceed $5,000 against any one violator, unless the violator has a history of noncompliance, the economic benefit of the violation as described in subsection (8) exceeds $5,000, or there are multiday violations. The total administrative penalties shall not exceed $10,000 per assessment for all violations attributable to a specific person in the notice of violation.
(10) The administrative law judge may receive evidence in mitigation. The penalties identified in subsection (3), subsection (4), and subsection (5) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply prior to or after discovery of the violations by the department. Upon an affirmative finding that the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent’s due diligence, the administrative law judge may further reduce the penalty.
(11) Penalties collected pursuant to this section shall be deposited in the Ecosystem Management and Restoration Trust Fund or other trust fund designated by statute and shall be used to fund the restoration of ecosystems, or polluted areas of the state, as defined by the department, to their condition before pollution occurred. The Florida Conflict Resolution Consortium may use a portion of the fund to administer the mediation process provided in paragraph (2)(e) and to contract with private mediators for administrative penalty cases.
(12) The purpose of the administrative penalty schedule and process is to provide a more predictable and efficient manner for individuals and businesses to resolve relatively minor environmental disputes. Subsection (3), subsection (4), subsection (5), subsection (6), or subsection (7) shall not be construed as limiting a state court in the assessment of damages. The administrative penalty schedule does not apply to the judicial imposition of civil penalties in state court as provided in this section.
History.s. 13, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 70-114; s. 1, ch. 70-139; s. 349, ch. 71-136; s. 112, ch. 71-355; s. 1, ch. 72-286; s. 138, ch. 77-104; s. 1, ch. 77-117; s. 14, ch. 78-95; s. 263, ch. 81-259; s. 3, ch. 90-82; s. 61, ch. 96-321; s. 2, ch. 2001-258; s. 2, ch. 2002-165; ss. 43, 44, 76, ch. 2004-269; s. 15, ch. 2004-381.
403.131 Injunctive relief, remedies.
(1) The department may institute a civil action in a court of competent jurisdiction to seek injunctive relief to enforce compliance with this chapter or any rule, regulation, permit certification, or order; to enjoin any violation specified in s. 403.161(1); and to seek injunctive relief to prevent irreparable injury to the air, waters, and property, including animal, plant, and aquatic life, of the state and to protect human health, safety, and welfare caused or threatened by any violation.
(2) All the judicial and administrative remedies to recover damages and penalties in this section and s. 403.121 are alternative and mutually exclusive.
History.s. 14, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 70-139; s. 1, ch. 70-439; s. 2, ch. 72-286; s. 3, ch. 2001-258.
403.135 Persons who accept wastewater for spray irrigation; civil liability.
(1) Any person who in good faith accepts from any owner or operator of a permitted wastewater treatment or disposal plant any wastewater permitted and intended to be used for disposal through spray irrigation is not liable for any civil damages as a result of the acceptance and disposal of such wastewater through approved spray irrigation practices.
(2) Subsection (1) does not limit or otherwise affect the liability of:
(a) Any person for damages resulting from such person’s negligence, gross negligence, or reckless, wanton, or intentional misconduct;
(b) Any person for the improper management and use of the wastewater after its delivery to such person by any permitted wastewater treatment or disposal plant owner or operator; or
(c) The owner or operator of the plant for damages caused as a result of the spray irrigation.
(3) Nothing in this section shall prohibit any governmental entity from taking such action within its jurisdiction as may be necessary to protect the public health, safety, or welfare or the environment.
(4) Terms used in this section have the meaning specified in this chapter and in the rules of the department under this chapter.
History.s. 1, ch. 87-207; s. 369, ch. 94-356.
403.141 Civil liability; joint and several liability.
(1) Whoever commits a violation specified in s. 403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition, and furthermore is subject to the judicial imposition of a civil penalty for each offense in an amount of not more than $10,000 per offense. However, the court may receive evidence in mitigation. Each day during any portion of which such violation occurs constitutes a separate offense. Nothing herein shall give the department the right to bring an action on behalf of any private person.
(2) Whenever two or more persons pollute the air or waters of the state in violation of this chapter or any rule, regulation, or order of the department so that the damage is indivisible, each violator shall be jointly and severally liable for such damage and for the reasonable cost and expenses of the state incurred in tracing the source of discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including the animal, plant, and aquatic life of the state, to their former condition. However, if said damage is divisible and may be attributed to a particular violator or violators, each violator is liable only for that damage attributable to his or her violation.
(3) In assessing damages for fish killed, the value of the fish is to be determined in accordance with a table of values for individual categories of fish which shall be promulgated by the department. At the time the table is adopted, the department shall use tables of values established by the Department of Environmental Protection and the Fish and Wildlife Conservation Commission. The total number of fish killed may be estimated by standard practices used in estimating fish population.
(4) The damage provisions of this section shall not apply to damage resulting from the application of federally approved or state-approved chemicals to the waters in the state for the control of insects, aquatic weeds, or algae, provided the application of such chemicals is done in accordance with a program approved pursuant to s. 403.088(1) and provided said application is not done negligently.
History.s. 15, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 70-141; s. 1, ch. 71-204; s. 3, ch. 72-286; s. 7, ch. 74-133; s. 1, ch. 76-112; s. 3, ch. 78-98; s. 370, ch. 94-356; s. 4, ch. 97-103; s. 24, ch. 2000-197.
403.151 Compliance with rules or orders of department.All rules or orders of the department which require action to comply with standards adopted by it, or orders to comply with any provisions of this act, may specify a reasonable time for such compliance.
History.s. 16, ch. 67-436; ss. 26, 35, ch. 69-106.
403.161 Prohibitions, violation, penalty, intent.
(1) It shall be a violation of this chapter, and it shall be prohibited for any person:
(a) To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.
(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.
(c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter.
(d) For any person who owns or operates a facility to fail to report to the representative of the department, as established by department rule, within one working day of discovery of a release of hazardous substances from the facility if the owner or operator is required to report the release to the United States Environmental Protection Agency in accordance with 42 U.S.C. s. 9603.
(2) Whoever commits a violation specified in subsection (1) is liable to the state for any damage caused and for civil penalties as provided in s. 403.141.
(3) Any person who willfully commits a violation specified in paragraph (1)(a) is guilty of a felony of the third degree punishable as provided in ss. 775.082(3)(d) and 775.083(1)(g) by a fine of not more than $50,000 or by imprisonment for 5 years, or by both, for each offense. Each day during any portion of which such violation occurs constitutes a separate offense.
(4) Any person who commits a violation specified in paragraph (1)(a) due to reckless indifference or gross careless disregard is guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082(4)(b) and 775.083(1)(g) by a fine of not more than $5,000 or by 60 days in jail, or by both, for each offense.
(5) Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each offense.
(6) It is the legislative intent that the civil penalties and criminal fines imposed by the court be of such amount as to ensure immediate and continued compliance with this section.
History.s. 17, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 70-356; s. 1, ch. 70-439; s. 4, ch. 72-286; s. 8, ch. 74-133; s. 139, ch. 77-104; s. 1, ch. 77-174; s. 21, ch. 88-393; s. 2, ch. 89-143; s. 8, ch. 89-324.
403.1651 Ecosystem Management and Restoration Trust Fund.
1(1) There is created the Ecosystem Management and Restoration Trust Fund to be administered by the Department of Environmental Protection for the purposes of:
(a) Funding the detailed planning for and implementation of programs for the management and restoration of ecosystems.
(b) Funding the development and implementation of surface water improvement and management plans and programs under ss. 373.451-373.4595.
(c) Funding activities to restore polluted areas of the state, as defined by the department, to their condition before pollution occurred or to otherwise enhance pollution control activities.
(d) Funding activities to restore or rehabilitate injured or destroyed coral reefs.
(e) Funding activities by the department to recover moneys as a result of actions against any person for a violation of chapter 373.
(f) Funding activities authorized for the implementation of the Leah Schad Memorial Ocean Outfall Program implemented in s. 403.086(9).
2(g) Funding activities to preserve and repair the state’s beaches as provided in ss. 161.091-161.212.
(2) The trust fund shall be used for the deposit of all moneys recovered by the state:
(a) As a result of actions against any person for a violation of chapter 373 or this chapter initiated by the department. No settlement entered into by the department shall limit the Legislature’s authority to appropriate moneys from the trust fund; provided, however, that the department may enter into a settlement in which the department agrees to request that moneys received pursuant to the settlement will be included in its legislative budget request for purposes set out in the settlement; and provided further, that the department may enter into a settlement in cases involving joint enforcement with the Hillsborough County pollution control program, as a program approved by the department pursuant to s. 403.182, in which the department agrees that moneys are to be deposited into that local program’s pollution recovery fund and used for projects directed toward addressing the environmental damage that was the cause of action for which funds were received and that are consistent with the purposes of the Ecosystem Management and Restoration Trust Fund.
(b) For injury to or destruction of coral reefs, which moneys would otherwise be deposited into the General Revenue Fund or the Internal Improvement Trust Fund. The department may enter into settlement agreements that require responsible parties to pay a third party to fund projects related to the restoration of a coral reef, to accomplish mitigation for injury to a coral reef, or to support the activities of law enforcement agencies related to coral reef injury response, investigation, and assessment. Participation of a law enforcement agency in the receipt of funds through this mechanism shall be at the law enforcement agency’s discretion.
(c) From other sources otherwise specified by law.
(3) For the 2010-2011 fiscal year only, moneys in the Ecosystems Management and Restoration Trust Fund are authorized for transfer to the General Inspection Trust Fund in the Department of Agriculture and Consumer Services for the Farm Share, Food Banks, and Mosquito Control programs, and the Technological Research and Development Authority. This subsection expires July 1, 2011.
History.s. 1, ch. 96-176; s. 2, ch. 98-117; s. 8, ch. 2008-232; ss. 32, 33, ch. 2009-82; s. 58, ch. 2009-86; ss. 27, 28, 29, ch. 2010-153; ss. 34, 35, ch. 2011-47.
1Note.Section 35, ch. 2011-47, provides that “[t]he amendment to s. 403.1651(1)(g), Florida Statutes, as carried forward by this act from chapter 2010-153, Laws of Florida, shall expire July 1, 2012, and the text of that subsection shall revert to that in existence on June 30, 2009, except that any amendments to such text enacted other than by this act shall be preserved and continue to operate to the extent that such amendments are not dependent upon the portions of text which expire pursuant to this section.” Section 32, ch. 2009-82, created paragraph (1)(g), and s. 33, ch. 2009-82, provided for reversion of the text of subsection (1) to its existence prior to addition of paragraph (g). Effective July 1, 2012, subsection (1), as amended by s. 33, ch. 2009-82; s. 28, ch. 2010-153; and s. 35, ch. 2011-47, will read:

(1) There is created the Ecosystem Management and Restoration Trust Fund to be administered by the Department of Environmental Protection for the purposes of:

(a) Funding the detailed planning for and implementation of programs for the management and restoration of ecosystems.

(b) Funding the development and implementation of surface water improvement and management plans and programs under ss. 373.451-373.4595.

(c) Funding activities to restore polluted areas of the state, as defined by the department, to their condition before pollution occurred or to otherwise enhance pollution control activities.

(d) Funding activities to restore or rehabilitate injured or destroyed coral reefs.

(e) Funding activities by the department to recover moneys as a result of actions against any person for a violation of chapter 373.

(f) Funding activities authorized for the implementation of the Leah Schad Memorial Ocean Outfall Program implemented in s. 403.086(9).

2Note.Section 34, ch. 2011-47, reenacted paragraph (1)(g) “[i]n order to implement Specific Appropriations 1649 through 1651, 1653, and section 34 of the 2011-2012 General Appropriations Act.”
403.1655 Environmental short-term emergency response program.
(1) It is the purpose of this section to provide a mechanism through which the state can immediately respond to short-term emergencies involving a threat to or an actual contamination of surface and ground water. It is the intent of the Legislature that the department provide not only technical assistance when responding to these short-term emergencies, but also financial resources to respond to emergencies which pose an immediate environmental or public health threat.
(2) The department shall be the lead agency for interdepartmental coordination relating to water pollution, toxic substances, and hazardous waste and other environmental and health emergencies not specifically designated within other statutes.
(3) Based upon the nature of the incident, the Water Quality Assurance Trust Fund or the Inland Protection Trust Fund, whichever is appropriate, shall be utilized to enable the department to respond during an emergency to incidents which threaten the environment or public health when otherwise responsible parties do not adequately respond.
(4) The department shall adopt rules for the purposes of this section.
History.s. 42, ch. 83-310; s. 26, ch. 86-159.
403.1815 Construction of water distribution mains and sewage collection and transmission systems; local regulation.Notwithstanding any other provision of this chapter to the contrary, the department may, upon request, allow any county or municipality to independently regulate the construction of water distribution mains of 12 inches or less, gravity sewage collection systems of 12 inches or less, and sewage force mains of 12 inches or less, and pump stations appurtenant to such force mains, provided the plant is owned by the county or municipality making the request for approval or, pursuant to interlocal agreement, plant capacity is provided from a plant owned by another county or municipality or by a regional water supply authority of which the county or municipality requesting approval is a member. The approval may apply to all or any part of such systems. In considering such request, the department shall determine the administrative and engineering ability of a county or municipality to administer and comply with the requirements of this section. In the event the department allows any county or municipality to independently regulate the construction of such systems, these construction projects shall be exempt from department permit requirements. However, nothing in this section shall relieve a county or a municipality from any requirement to obtain the necessary permits for construction activities in waters of the state or of the United States or from complying with all other provisions of this chapter and rules promulgated thereunder. The exemption provided by this section shall not apply to any connection to any water or sewerage system which the department has deemed to be in substantial noncompliance with applicable laws and standards if the department has so notified the respective county or municipality. Each county or municipality granted such authority shall submit monthly reports to the department of the number of connections and geographical location of such connections made pursuant to any independent regulation allowed under this section and shall, not later than July 1 of each year, submit an updated map of any water distribution system and sewage collection and transmission system independently regulated pursuant to this section, which map also shows any plant to which such system connects or interconnects. Such map shall indicate the extensions of such systems constructed for the preceding year.
History.s. 1, ch. 80-394; s. 33, ch. 91-305; s. 1, ch. 94-132.
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:
(a) Be approved by the department as adequate to meet the requirements of this act and any applicable rules and regulations pursuant thereto.
(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.
(c) Provide for the enforcement of such requirements by appropriate administrative and judicial process.
(d) Provide for administrative organization, staff, financial and other resources necessary to effectively and efficiently carry out its program.
(2) The department shall have the exclusive authority and power to require and issue permits; provided, however, that the department may delegate its power and authority to local pollution control organizations if the department finds it necessary or desirable to do so.
(3) If the department finds that the location, character or extent of particular concentrations of population, contaminant sources, the geographic, topographic or meteorological considerations, or any combinations thereof, are such as to make impracticable the maintenance of appropriate levels of air and water quality without an areawide pollution control program, the department may determine the boundaries within which such program is necessary and require it as the only acceptable alternative to direct state administration.
(4)(a) If the department has reason to believe that a pollution control program in force pursuant to this section is inadequate to prevent and control pollution in the jurisdiction to which such program relates, or that such program is being administered in a manner inconsistent with the requirements of this act, it shall proceed to determine the matter.
(b) If the department determines that such program is inadequate to prevent and control pollution in the municipality or county or municipalities or counties to which such program relates, or that such program is not accomplishing the purposes of this act, it shall require that necessary corrective measures be taken within a reasonable period of time, not to exceed 90 days.
(c) If the municipality, county, or municipalities or counties fail to take such necessary corrective action within the time required, the department shall administer within such municipality, county, or municipalities or counties all of the regulatory provisions of this act. Such pollution control program shall supersede all municipal or county pollution laws, regulations, ordinances and requirements in the affected jurisdiction.
(d) If the department finds that the control of a particular class of contaminant source because of its complexity or magnitude is beyond the reasonable capability of the local pollution control authorities or may be more efficiently and economically performed at the state level, it may assume and retain jurisdiction over that class of contaminant source. Classifications pursuant to this paragraph may be either on the basis of the nature of the sources involved or on the basis of their relationship to the size of the communities in which they are located.
(5) Any municipality or county in which the department administers its pollution control program pursuant to subsection (4) may with the approval of the department establish or resume a municipal or county pollution control program which meets the requirements of subsection (1).
(6) Notwithstanding the existence of any local pollution control program, whether created by a county or municipality or a combination thereof or by a special law, the department shall have jurisdiction to enforce the provisions of this chapter and any rules, regulations, or orders issued pursuant to this chapter throughout the state; however, whenever rules, regulations, or orders of a stricter or more stringent nature have been adopted by a local pollution control program, the department, if it elects to assert its jurisdiction, shall then enforce the stricter rules, regulations, or orders in the jurisdiction where they apply.
(7) It shall be a violation of this chapter to violate, or fail to comply with, a rule, regulation, or order of a stricter or more stringent nature adopted by a local pollution control program, and the same shall be punishable as provided by s. 403.161. If any local program changes any rule, regulation, or order, whether or not of a stricter or more stringent nature, such change shall not apply to any installation or source operating at the time of such change in conformance with a currently valid permit issued by the department.
(8) If any local program changes any rule, regulation, or order, whether or not of a stricter or more stringent nature, such change shall not apply to any installation or source located north of the Cross Florida Greenway, permitted and under construction as of May 1, 1997. Provisions of this subsection shall not apply to any facility which primarily generates electric power.
(9) Nothing in this act shall prevent any local pollution control program from enforcing its own rules, regulations, or orders. All remedies of the department under this chapter shall be available, as an alternative to local enforcement provisions, to each local pollution control program to enforce any provision of local law. When the department and a local program institute separate lawsuits against the same party for violation of a state or local pollution law, rule, regulation, or order arising out of the same act, the suits shall be consolidated when possible.
(10) Each local pollution control program shall cooperate with and assist the department in carrying out its powers, duties, and functions.
History.s. 19, ch. 67-436; ss. 26, 35, ch. 69-106; s. 2, ch. 71-137; ss. 1, 2, ch. 73-256; s. 14, ch. 78-95; s. 76, ch. 79-65; s. 6, ch. 89-143; s. 371, ch. 94-356; s. 9, ch. 97-222.
403.1832 Department to accept federal aid; Grants and Donations Trust Fund.
(1) The department is designated as the administrative agency of the state to apply for and accept any funds or other aid and to cooperate and enter into contracts and agreements with the Federal Government relating to the planning, design, construction, operation, maintenance, and enforcement activities of the program to provide clean air and water and pollution abatement of the air and waters of the state, including solid waste management, hazardous waste management, and ecosystem management and restoration, or to any other related environmental purposes authorized by the Congress of the United States. The department may, in the name of the state, make such applications, sign such documents, give such assurances, and do such other things as are necessary to obtain such aid from or cooperate with the United States Government or any agency thereof. The department may consent to enter into contracts and agreements and cooperate with any other state agency, local governmental agency, person, or other state when it is necessary to carry out the provisions of this section.
(2) The Grants and Donations Trust Fund is to be administered by the Department of Environmental Protection. The fund is intended to serve as the depository for federal grants and funds received by the department and to assist in tracking and monitoring the use of federal funds that are not otherwise deposited directly into a separate trust fund. The Grants and Donations Trust Fund is intended to be a broad-based fund from which moneys can be used for various environmental and natural resource program purposes for which the federal funds were intended. Funds may be expended for purposes including, but not limited to:
(a) Water quality improvement.
(b) Management of solid and hazardous wastes.
(c) Stormwater management.
(d) Air quality improvement and management.
(e) Wetland protection and management.
(f) Marine research.
(g) Marine habitat restoration and management.
(h) Aquatic weed control.
(i) Environmental regulatory compliance and enforcement.
(j) Local or state recreational projects.
History.s. 12, ch. 70-251; s. 1, ch. 70-439; s. 53, ch. 83-310; s. 63, ch. 96-321; s. 14, ch. 2001-270.
403.1834 State bonds to finance or refinance facilities; exemption from taxation.
(1) The issuance of state bonds to finance or refinance the construction of water supply and distribution facilities, stormwater control and treatment facilities, and air and water pollution control and abatement and solid waste disposal facilities, payable primarily from the pledged revenues provided for by s. 14, Art. VII of the State Constitution or from such pledged revenues and the full faith and credit of any county, municipality, district, authority, or any agency thereof, and pledging the full faith and credit of the state as additional security, is authorized, subject and pursuant to the provisions of s. 14, Art. VII of the State Constitution, the provisions of the State Bond Act, ss. 215.57-215.83, as amended, and the provisions of this section.
(2) The State Board of Administration is designated as the state fiscal agency to make the determinations required by s. 14, Art. VII of the State Constitution in connection with the issuance of such bonds.
(3) The amount of the state bonds to be issued shall be determined by the Division of Bond Finance of the State Board of Administration. However, the total principal amount issued shall not exceed $300 million in any state fiscal year. This limitation does not apply to bonds issued to refinance outstanding bonds that were issued pursuant to this section in a previous fiscal year.
(4) The facilities to be financed or refinanced with the proceeds of such state bonds shall be determined and approved by the department and may be constructed, acquired, maintained, and operated by any county, municipality, district, or authority, or any agency thereof, or by the department.
(5) The department and the Division of Bond Finance of the State Board of Administration are hereby authorized to enter into lease-purchase agreements between such departments or to enter into lease-purchase agreements or loan agreements between either of such departments and any county, municipality, district, or authority, or any agency thereof, for such periods and under such other terms and conditions as may be mutually agreed upon by the parties thereto in order to carry out the purposes of s. 14, Art. VII of the State Constitution and this section.
(6) The department shall have power to fix, establish, and collect fees, rentals, or other charges for the use or benefit of said facilities or may delegate such power to any county, municipality, district, authority, or any agency thereof under such terms and conditions and for such periods as may be mutually agreed upon.
(7) It is found and declared that said facilities will constitute a public governmental purpose necessary for the health and welfare of all the inhabitants of the state, and none of said facilities or said state bonds or the interest thereon shall ever be subject to taxation by the state or any political subdivision or agency thereof. However, a leasehold interest in property of the state or the facilities thereon may not be exempted from ad valorem taxation when a nongovernmental lessee uses such property for the operation of a multipurpose hazardous waste treatment facility. The exemption granted by this subsection shall not be applicable to any tax imposed by chapter 220 on interest, income, or profits on debt obligations owned by corporations.
(8) As used in this section, “water supply and distribution facilities” means a waterworks system as defined in s. 159.02(9) which is constructed, owned, or operated by a county, municipality, water management district created by chapter 373, or regional water supply authority created pursuant to chapter 373, or a water facility of an authority created by chapter 76-441, Laws of Florida, as amended by chapter 80-546, Laws of Florida.
History.ss. 1, 2, 3, 4, 5, 6, 7, ch. 70-270; s. 1, ch. 70-439; s. 2, ch. 71-137; s. 4, ch. 73-256; s. 14, ch. 73-327; s. 78, ch. 79-65; s. 1, ch. 81-21; s. 61, ch. 83-218; s. 19, ch. 86-186; s. 1, ch. 87-203; s. 82, ch. 88-130; s. 303, ch. 92-279; s. 55, ch. 92-326; s. 374, ch. 94-356.
403.1835 Water pollution control financial assistance.
(1) The purpose of this section is to assist in implementing the legislative declaration of public policy as contained in s. 403.021 by establishing a self-perpetuating program to accelerate the implementation of water pollution control projects. Projects and activities that may be funded are those eligible under s. 603 of the Federal Water Pollution Control Act (Clean Water Act), Pub. L. No. 92-500, as amended; including, but not limited to, planning, design, construction, and implementation of wastewater management systems, stormwater management systems, nonpoint source pollution management systems, and estuary conservation and management.
(2) As used in this section and s. 403.1837, the term:
(a) “Bonds” means bonds, certificates, or other obligations of indebtedness issued by the corporation under this section and s. 403.1837.
(b) “Corporation” means the Florida Water Pollution Control Financing Corporation created under s. 403.1837.
(c) “Local governmental agencies” refers to any municipality, county, district, or authority, or any agency thereof, or a combination of two or more of the foregoing, acting jointly in connection with a project having jurisdiction over collection, transmission, treatment, or disposal of sewage, industrial wastes, stormwater, or other wastes and includes a district or authority whose principal responsibility is to provide airport, industrial or research park, or port facilities to the public.
(3) The department may provide financial assistance through any program authorized under 33 U.S.C. s. 1383, as amended, including, but not limited to, making grants and loans, providing loan guarantees, purchasing loan insurance or other credit enhancements, and buying or refinancing local debt. This financial assistance must be administered in accordance with this section and applicable federal authorities.
(a) The department may make or request the corporation to make loans to local government agencies, which may pledge any revenue available to them to repay any funds borrowed.
(b) The department may make or request the corporation to make loans, grants, and deposits to other entities eligible to participate in the financial assistance programs authorized under the Federal Water Pollution Control Act, or as a result of other federal action, which may pledge any revenue available to them to repay any funds borrowed. Notwithstanding s. 17.57, the department may make deposits to financial institutions that earn less than the prevailing rate for United States Treasury securities that have corresponding maturities for the purpose of enabling such financial institutions to make below-market interest rate loans to entities qualified to receive loans under this section and the rules of the department.
(c) The department shall administer financial assistance so that at least 15 percent of the funding made available each year under this section is reserved for use by small communities during the year it is reserved.
(d) The department may make grants to financially disadvantaged small communities, as defined in s. 403.1838, using funds made available from grant allocations on loans authorized under subsection (4). The grants must be administered in accordance with s. 403.1838.
(4) The department may assess grant allocations on the loans made under this section for the purpose of making grants to financially disadvantaged small communities.
(5) The department shall prepare an annual report detailing the amount of grants, amount loaned, interest earned, grant allocations, and loans outstanding at the end of each fiscal year.
(6) Prior to approval of financial assistance, the applicant shall:
(a) Submit evidence of credit worthiness, loan security, and a loan repayment schedule in support of a request for a loan.
(b) Submit plans and specifications and evidence of permittability in support of a request for funding of construction or other activities requiring a permit from the department.
(c) Provide assurance that records will be kept using generally accepted accounting principles and that the department, the Auditor General, or their agents will have access to all records pertaining to the financial assistance provided.
(d) Provide assurance that the subject facilities, systems, or activities will be properly operated and maintained.
(e) Identify the revenues to be pledged and document their sufficiency for loan repayment and pledged revenue coverage in support of a request for a loan.
(f) Provide assurance that financial information will be provided as required by the department.
(g) Provide assurance that a project audit prepared by an independent certified public accountant upon project completion will be submitted to the department in support of a request for a grant.
(h) Submit project planning documentation demonstrating a cost comparison of alternative methods, environmental soundness, public participation, and financial feasibility for any proposed project or activity.
(7) Eligible projects must be given priority according to the extent each project is intended to remove, mitigate, or prevent adverse effects on surface or ground water quality and public health. The relative costs of achieving environmental and public health benefits must be taken into consideration during the department’s assignment of project priorities. The department shall adopt a priority system by rule. In developing the priority system, the department shall give priority to projects that:
(a) Eliminate public health hazards;
(b) Enable compliance with laws requiring the elimination of discharges to specific water bodies, including the requirements of s. 403.086(9) regarding domestic wastewater ocean outfalls;
(c) Assist in the implementation of total maximum daily loads adopted under s. 403.067;
(d) Enable compliance with other pollution control requirements, including, but not limited to, toxics control, wastewater residuals management, and reduction of nutrients and bacteria;
(e) Assist in the implementation of surface water improvement and management plans and pollutant load reduction goals developed under state water policy;
(f) Promote reclaimed water reuse;
(g) Eliminate failing onsite sewage treatment and disposal systems or those that are causing environmental damage; or
(h) Reduce pollutants to and otherwise promote the restoration of Florida’s surface and ground waters.
(8)(a) If a local governmental agency becomes delinquent on its loan, the department shall so certify to the Chief Financial Officer, who shall forward the amount delinquent to the department from any unobligated funds due to the local governmental agency under any revenue-sharing or tax-sharing fund established by the state, except as otherwise provided by the State Constitution. Certification of delinquency shall not limit the department from pursuing other remedies available for default on a loan. The department may impose a penalty for delinquent loan payments in an amount not to exceed an interest rate of 18 percent per annum on the amount due in addition to charging the cost to handle and process the debt. Penalty interest shall accrue on any amount due and payable beginning on the 30th day following the date upon which payment is due.
(b) If a loan recipient, other than a local government agency, defaults under the terms of a loan, the department may pursue any remedy available to it at law or in equity. The department may impose a penalty in an amount not to exceed an interest rate of 18 percent per annum on any amount due in addition to charging the cost to handle and process the debt. Penalty interest accrues on any amount due and payable beginning on the 30th day following the date upon which the amount is due.
(9) Funds for the loans and grants authorized under this section must be managed as follows:
(a) A nonlapsing trust fund with revolving loan provisions to be known as the “Wastewater Treatment and Stormwater Management Revolving Loan Trust Fund” is established in the State Treasury to be used as a revolving fund by the department to carry out the purpose of this section. Any funds therein which are not needed on an immediate basis for grants or loans may be invested pursuant to s. 215.49. The cost of administering the program shall be paid from federal funds, from reasonable service fees that may be imposed upon loans, and from proceeds from the sale of loans as permitted by federal law so as to enhance program perpetuity. Grants awarded by the Federal Government, state matching funds, and investment earnings thereon shall be deposited into the trust fund. Proceeds from the sale of loans must be deposited into the trust fund. All moneys available in the trust fund, including investment earnings, are hereby designated to carry out the purpose of this section. The principal and interest payments of all loans held by the trust fund shall be deposited into this trust fund.
1. The department may obligate moneys available in the Wastewater Treatment and Stormwater Management Revolving Loan Trust Fund for payment of amounts payable under any service contract entered into by the department under s. 403.1837, subject to annual appropriation by the Legislature. Amounts on deposit in the trust fund in each fiscal year shall first be applied or allocated for the payment of amounts payable by the department under this subparagraph and appropriated each year by the Legislature before making or providing for other disbursement from the trust fund.
2. Under the provisions of s. 19(f)(3), Art. III of the State Constitution, the Wastewater Treatment and Stormwater Management Revolving Loan Trust Fund is exempt from the termination provisions of s. 19(f)(2), Art. III of the State Constitution.
(b) Revenues from the loan grant allocations authorized under subsection (4), federal appropriations used for the purpose of administering this section, and service fees, and all earnings thereon, shall be deposited into the department’s Federal Grants Trust Fund. Service fees and all earnings thereon must be used solely for program administration and other water quality activities specifically authorized pursuant to the Federal Water Pollution Control Act (Clean Water Act), Pub. L. No. 92-500, as amended, and set forth in 40 C.F.R. part 35, Guidance on Fees Charged by States to Recipients of Clean Water State Revolving Fund Program Assistance. The loan grant allocation revenues and earnings thereon must be used solely for the purpose of making grants to financially disadvantaged small communities. Federal appropriations and state matching funds for grants authorized by federal statute or other federal action, and earnings thereon, must be used solely for the purposes authorized. All deposits into the department’s Federal Grants Trust Fund under this section, and earnings thereon, must be accounted for separately from all other moneys deposited into the fund.
(10) The department may adopt rules regarding program administration; project eligibilities and priorities, including the development and management of project priority lists; financial assistance application requirements associated with planning, design, construction, and implementation activities, including environmental and engineering requirements; financial assistance agreement conditions; disbursement and repayment provisions; auditing provisions; program exceptions; the procedural and contractual relationship between the department and the corporation under s. 403.1837; and other provisions consistent with the purposes of this section.
(11) Any projects for reclaimed water reuse in Monroe County funded from the Wastewater Treatment and Stormwater Management Revolving Loan Trust Fund must take into account water balances and nutrient balances in order to prevent the runoff of pollutants into surface waters.
History.s. 1, ch. 72-723; s. 79, ch. 79-65; s. 20, ch. 86-186; s. 37, ch. 89-279; s. 34, ch. 91-305; s. 304, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 93-51; s. 375, ch. 94-356; s. 26, ch. 97-236; s. 101, ch. 98-200; s. 1, ch. 98-316; s. 23, ch. 99-205; s. 2, ch. 99-372; s. 1, ch. 2000-271; s. 15, ch. 2001-270; s. 427, ch. 2003-261; s. 11, ch. 2003-265; s. 16, ch. 2004-381; s. 9, ch. 2008-232; s. 40, ch. 2010-205; s. 1, ch. 2011-58.
403.1837 Florida Water Pollution Control Financing Corporation.
(1) The Florida Water Pollution Control Financing Corporation is created as a nonprofit public-benefit corporation for the purpose of financing or refinancing the costs of projects and activities described in ss. 403.1835 and 403.8532. The projects and activities described in those sections constitute a public governmental purpose; are necessary for the health, safety, and welfare of all residents; and include legislatively approved fixed capital outlay projects. Fulfilling the purposes of the corporation promotes the health, safety, and welfare of the people of the state and serves essential governmental functions and a paramount public purpose. The activities of the corporation are specifically limited to assisting the department in implementing financing activities to provide funding for the programs authorized in ss. 403.1835 and 403.8532. All other activities relating to the purposes for which the corporation raises funds are the responsibility of the department, including, but not limited to, development of program criteria, review of applications for financial assistance, decisions relating to the number and amount of loans or other financial assistance to be provided, and enforcement of the terms of any financial assistance agreements provided through funds raised by the corporation. The corporation shall terminate upon fulfilling the purposes of this section.
(2) The corporation shall be governed by a board of directors consisting of the Governor’s Budget Director or designee, the Chief Financial Officer or designee, and the Secretary of Environmental Protection or designee. The executive director of the State Board of Administration shall be the chief executive officer of the corporation; shall direct and supervise the administrative affairs of the corporation; and shall control, direct, and supervise operation of the corporation. The corporation shall have such other officers as may be determined by the board of directors.
(3) The corporation shall have all the powers of a corporate body under the laws of the state, consistent with this section, including, but not limited to, the power to:
(a) Adopt, amend, and repeal bylaws consistent with this section.
(b) Sue and be sued.
(c) Adopt and use a common seal.
(d) Acquire, purchase, hold, lease, and convey any real and personal property as may be proper or expedient to carry out the purposes of the corporation and this section, and to sell, lease, or otherwise dispose of that property.
(e) Elect or appoint and employ such officers, agents, and employees as the corporation considers advisable to operate and manage the affairs of the corporation, who may be officers or employees of the department and the state agencies represented on the board of directors of the corporation.
(f) Borrow money and issue notes, bonds, certificates of indebtedness, or other obligations or evidences of indebtedness described in s. 403.1835 or s. 403.8532.
(g) Operate, as specifically directed by the department, any program to provide financial assistance authorized under s. 403.1835(3) or s. 403.8532(3), which may be funded from any funds received under a service contract with the department, from the proceeds of bonds issued by the corporation, or from any other funding sources obtained by the corporation.
(h) Sell all or any portion of the loans issued under s. 403.1835 or s. 403.8532 to accomplish the purposes of those sections.
(i) Make and execute any contracts, trust agreements, and other instruments and agreements necessary or convenient to accomplish the purposes of the corporation and this section.
(j) Select, retain, and employ professionals, contractors, or agents, which may include the Division of Bond Finance of the State Board of Administration, as necessary or convenient to enable or assist the corporation in carrying out its purposes and this section.
(k) Do any act or thing necessary or convenient to carry out the purposes of the corporation and this section.
(4) The corporation shall evaluate all financial and market conditions necessary and prudent for the purpose of making sound, financially responsible, and cost-effective decisions in order to secure additional funds to fulfill the purposes of this section and ss. 403.1835 and 403.8532.
(5) The corporation may enter into one or more service contracts with the department under which the corporation shall provide services to the department in connection with financing the functions, projects, and activities provided in ss. 403.1835 and 403.8532. The department may enter into one or more service contracts with the corporation and provide for payments under those contracts pursuant to s. 403.1835(9) or s. 403.8533, subject to annual appropriation by the Legislature.
(a) The service contracts may provide for the transfer of all or a portion of the funds in the Wastewater Treatment and Stormwater Management Revolving Loan Trust Fund and the Drinking Water Revolving Loan Trust Fund to the corporation for use by the corporation for costs incurred by the corporation in its operations, including, but not limited to, payment of debt service, reserves, or other costs in relation to bonds issued by the corporation, for use by the corporation at the request of the department to directly provide the types of local financial assistance provided in ss. 403.1835(3) and 403.8532(3), or for payment of the administrative costs of the corporation.
(b) The department may not transfer funds under any service contract with the corporation without a specific appropriation for such purpose in the General Appropriations Act, except for administrative expenses incurred by the State Board of Administration or other expenses necessary under documents authorizing or securing previously issued bonds of the corporation. The service contracts may also provide for the assignment or transfer to the corporation of any loans made by the department.
(c) The service contracts may establish the operating relationship between the department and the corporation and must require the department to request the corporation to issue bonds before any issuance of bonds by the corporation, to take any actions necessary to enforce the agreements entered into between the corporation and other parties, and to take all other actions necessary to assist the corporation in its operations.
(d) In compliance with s. 287.0641 and other applicable provisions of law, the obligations of the department under the service contracts do not constitute a general obligation of the state or a pledge of the faith and credit or taxing power of the state, nor may the obligations be construed as an obligation of the State Board of Administration or entities for which it invests funds, or of the department except as provided in this section as payable solely from amounts available under any service contract between the corporation and the department, subject to appropriation.
(e) In compliance with this subsection and s. 287.0582, service contracts must expressly include the following statement: “The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature.”
(6) The corporation may issue and incur notes, bonds, certificates of indebtedness, or other obligations or evidences of indebtedness payable from and secured by amounts received from payment of loans and other moneys received by the corporation, including, but not limited to, amounts payable to the corporation by the department under a service contract entered into under subsection (5). The proceeds of the bonds may be used for the purpose of providing funds for projects and activities provided in subsection (1) or for refunding bonds previously issued by the corporation. The corporation may select a financing team and issue obligations through competitive bidding or negotiated contracts, whichever is most cost-effective. Such indebtedness of the corporation does not constitute a debt or obligation of the state or a pledge of the faith and credit or taxing power of the state.
(7) The corporation is exempt from taxation and assessments of any nature whatsoever upon its income and any property, assets, or revenues acquired, received, or used in the furtherance of the purposes provided in ss. 403.1835, 403.1838, and 403.8532. The obligations of the corporation incurred under subsection (6) and the interest and income on the obligations and all security agreements, letters of credit, liquidity facilities, or other obligations or instruments arising out of, entered into in connection with, or given to secure payment of the obligations are exempt from all taxation; however, the exemption does not apply to any tax imposed by chapter 220 on the interest, income, or profits on debt obligations owned by corporations.
(8) The corporation shall validate any bonds issued under this section, except refunding bonds, which may be validated at the option of the corporation, by proceedings under chapter 75. The validation complaint must be filed in the Circuit Court for Leon County. The notice required under s. 75.06 must be published in Leon County, and the complaint and order of the circuit court shall be served only on the State Attorney for the Second Judicial Circuit. Sections 75.04(2) and 75.06(2) do not apply to a validation complaint filed as authorized in this subsection. The validation of the first bonds issued under this section may be appealed to the Supreme Court, and the appeal shall be handled on an expedited basis.
(9) The corporation and the department may not take any action that materially and adversely affects the rights of holders of any obligations issued under this section as long as the obligations are outstanding.
(10) The corporation is not a special district for purposes of chapter 189 or a unit of local government for purposes of part III of chapter 218. The provisions of chapters 120 and 215, except the limitation on interest rates provided by s. 215.84, which applies to obligations of the corporation issued under this section, and part I of chapter 287, except ss. 287.0582 and 287.0641, do not apply to this section, the corporation, the service contracts entered into under this section, or debt obligations issued by the corporation as provided in this section.
(11) The benefits or earnings of the corporation may not inure to the benefit of any private person, except persons receiving grants and loans under s. 403.1835 or s. 403.8532.
(12) Upon dissolution of the corporation, title to all property owned by the corporation reverts to the department.
(13) The corporation may contract with the State Board of Administration to serve as trustee with respect to debt obligations issued by the corporation as provided by this section; to hold, administer, and invest proceeds of those debt obligations and other funds of the corporation; and to perform other services required by the corporation. The State Board of Administration may perform these services and may contract with others to provide all or a part of those services and to recover the costs and expenses of providing those services.
History.s. 2, ch. 2000-271; s. 141, ch. 2001-266; s. 428, ch. 2003-261; s. 14, ch. 2003-265; s. 41, ch. 2010-205.
403.1838 Small Community Sewer Construction Assistance Act.
(1) This section may be cited as the “Small Community Sewer Construction Assistance Act.”
(2) The department shall use funds specifically appropriated to award grants under this section to assist financially disadvantaged small communities with their needs for adequate sewer facilities. For purposes of this section, the term “financially disadvantaged small community” means a municipality with a population of 7,500 or less, according to the latest decennial census and a per capita annual income less than the state per capita annual income as determined by the United States Department of Commerce.
(3)(a) In accordance with rules adopted by the Environmental Regulation Commission under this section, the department may provide grants, from funds specifically appropriated for this purpose, to financially disadvantaged small communities for up to 100 percent of the costs of planning, designing, constructing, upgrading, or replacing wastewater collection, transmission, treatment, disposal, and reuse facilities, including necessary legal and administrative expenses.
(b) The rules of the Environmental Regulation Commission must:
1. Require that projects to plan, design, construct, upgrade, or replace wastewater collection, transmission, treatment, disposal, and reuse facilities be cost-effective, environmentally sound, permittable, and implementable.
2. Require appropriate user charges, connection fees, and other charges sufficient to ensure the long-term operation, maintenance, and replacement of the facilities constructed under each grant.
3. Require grant applications to be submitted on appropriate forms with appropriate supporting documentation, and require records to be maintained.
4. Establish a system to determine eligibility of grant applications.
5. Establish a system to determine the relative priority of grant applications. The system must consider public health protection and water pollution abatement.
6. Establish requirements for competitive procurement of engineering and construction services, materials, and equipment.
7. Provide for termination of grants when program requirements are not met.
(c) The department must perform adequate overview of each grant, including technical review, regular inspections, disbursement approvals, and auditing, to successfully implement this section.
(d) The department may use up to 2 percent of the grant funds made available each year for the costs of program administration.
(e) Any grant awarded before July 1, 1994, under this section, remains subject to the applicable department rules in existence on June 30, 1993, until all rule requirements have been met.
History.s. 55, ch. 83-310; s. 29, ch. 84-338; s. 53, ch. 85-81; s. 38, ch. 89-279; s. 4, ch. 94-243; s. 376, ch. 94-356; s. 64, ch. 96-321; s. 37, ch. 2002-402; s. 10, ch. 2004-6.
403.191 Construction in relation to other law.
(1) It is the purpose of this act to provide additional and cumulative remedies to prevent, abate, and control the pollution of the air and waters of the state. Nothing contained herein shall be construed to abridge or alter rights of action or remedies in equity under the common law or statutory law, criminal or civil, nor shall any provisions of this act, or any act done by virtue thereof, be construed as estopping the state or any municipality, or person affected by air or water pollution, in the exercise of their rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.
(2) No civil or criminal remedy for any wrongful action which is a violation of any rule or regulation of the department shall be excluded or impaired by the provisions of this chapter.
(3) This act shall limit and restrict the application of chapter 24952, 1947, Laws of Florida, to any person operating any industrial plant that has located in the State of Florida in reliance thereon and exercised rights and powers granted thereby on and before the effective date of this act; provided such person shall henceforth in the exercise of such rights and powers install and use treatment works or control measures generally equivalent to those installed and used by other similar industrial plants pursuant to the requirements of the department.
History.s. 20, ch. 67-436; ss. 26, 35, ch. 69-106.
403.201 Variances.
(1) Upon application, the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:
(a) There is no practicable means known or available for the adequate control of the pollution involved.
(b) Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
(c) To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification.
(2) No variance shall be granted from any provision or requirement concerning discharges of waste into waters of the state or hazardous waste management which would result in the provision or requirement being less stringent than a comparable federal provision or requirement, except as provided in s. 403.70715.
(3) The department shall publish notice, or shall require a petitioner for a variance to publish notice, in the Florida Administrative Weekly and in a newspaper of general circulation in the area affected, of proposed agency action; and the department shall afford interested persons an opportunity for a hearing on each application for a variance. If no request for hearing is filed with the department within 14 days of published notice, the department may proceed to final agency action without a hearing.
(4) The department may require by rule a processing fee for and may prescribe such time limits and other conditions to the granting of a variance as it deems appropriate.
History.s. 21, ch. 67-436; ss. 26, 35, ch. 69-106; s. 1, ch. 74-170; s. 14, ch. 78-95; s. 7, ch. 82-27; s. 21, ch. 86-186; s. 78, ch. 93-213; s. 106, ch. 2008-4.
403.231 Department of Legal Affairs to represent the state.The Department of Legal Affairs shall represent the state and its agencies as legal adviser in carrying out the provisions of this act.
History.s. 24, ch. 67-436; ss. 11, 35, ch. 69-106.
403.251 Safety clause.The Legislature hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health and safety.
History.s. 27, ch. 67-436.
403.281 Definitions; weather modification law.As used in this chapter relating to weather modification:
(1) “Department” means the Department of Environmental Protection.
(2) “Person” includes any public or private corporation.
History.s. 1, ch. 57-128; ss. 26, 35, ch. 69-106; s. 2, ch. 71-137; s. 156, ch. 71-377; s. 80, ch. 79-65; s. 377, ch. 94-356.
Note.Former s. 373.261.
403.291 Purpose of weather modification law.The purpose of this law is to promote the public safety and welfare by providing for the licensing, regulation and control of interference by artificial means with the natural precipitation of rain, snow, hail, moisture or water in any form contained in the atmosphere.
History.s. 2, ch. 57-128.
Note.Former s. 373.271.
403.301 Artificial weather modification operation; license required.No person without securing a license from the department, shall cause or attempt to cause by artificial means condensation or precipitation of rain, snow, hail, moisture or water in any form contained in the atmosphere, or shall prevent or attempt to prevent by artificial means the natural condensation or precipitation of rain, snow, hail, moisture or water in any form contained in the atmosphere.
History.s. 3, ch. 57-128; ss. 26, 35, ch. 69-106.
Note.Former s. 373.281.
403.311 Application for weather modification licensing; fee.
(1) Any person desiring to do or perform any of the acts specified in s. 403.301 may file with the department an application for a license on a form to be supplied by the department for such purpose setting forth all of the following:
(a) The name and post office address of the applicant.
(b) The education, experience, and qualifications of the applicant, or if the applicant is not an individual, the education, experience, and qualifications of the persons who will be in control and in charge of the operation of the applicant.
(c) The name and post office address of the person on whose behalf the weather modification operation is to be conducted if other than the applicant.
(d) The nature and object of the weather modification operation which the applicant proposes to conduct, including a general description of such operation.
(e) The method and type of equipment and the type and composition of materials that the applicant proposes to use.
(f) Such other pertinent information as the department may require.
(2) Each application shall be accompanied by a filing fee in the sum of $1,000 and proof of financial responsibility as required by s. 403.321.
History.s. 4, ch. 57-128; ss. 26, 35, ch. 69-106; s. 18, ch. 88-393.
Note.Former s. 373.291.
403.321 Proof of financial responsibility.
(1) No license shall be issued to any person until he or she has filed with the department proof of ability to respond in damages for liability on account of accidents arising out of the weather modification operations to be conducted by him or her in the amount of $10,000 because of bodily injury to or death of one person resulting from any one incident, and subject to said limit for one person, in the amount of $100,000 because of bodily injury to or death of two or more persons resulting from any one incident, and in the amount of $100,000 because of injury to or destruction of property of others resulting from any one incident.
(2) Proof of financial responsibility may be given by filing with the department a certificate of insurance or a bond in the required amount.
History.s. 5, ch. 57-128; ss. 26, 35, ch. 69-106; s. 5, ch. 97-103.
Note.Former s. 373.301.
403.331 Issuance of license; suspension or revocation; renewal.
(1) The department shall issue a license to each applicant who:
(a) By education, skill and experience appears to be qualified to undertake the weather modification operation proposed in his or her application.
(b) Files proof of financial responsibility as required by s. 403.321.
(c) Pays filing fee required in s. 403.311.
(2) Each such license shall entitle the licensee to conduct the operation described in the application for the calendar year for which the license is issued unless the license is sooner revoked or suspended. The conducting of any weather modification operation or the use of any equipment or materials other than those described in the application shall be cause for revocation or suspension of the license.
(3) The license may be renewed annually by payment of a filing fee in the sum of $50.
History.s. 6, ch. 57-128; ss. 26, 35, ch. 69-106; s. 6, ch. 97-103.
Note.Former s. 373.311.
403.341 Filing and publication of notice of intention to operate; limitation on area and time.Prior to undertaking any operation authorized by the license, the licensee shall file with the department and cause to be published a notice of intention. The licensee shall then confine his or her activities substantially within the time and area limits set forth in the notice of intention.
History.s. 7, ch. 57-128; ss. 26, 35, ch. 69-106; s. 7, ch. 97-103.
Note.Former s. 373.321.
403.351 Contents of notice of intention.The notice of intention shall set forth all of the following:
(1) The name and post office address of the licensee.
(2) The name and post office address of the persons on whose behalf the weather modification operation is to be conducted if other than the licensee.
(3) The nature and object of the weather modification operation which licensee proposes to conduct, including a general description of such operation.
(4) The method and type of equipment and the type and composition of the materials the licensee proposes to use.
(5) The area in which and the approximate time during which the operation will be conducted.
(6) The area which will be affected by the operation as nearly as the same may be determined in advance.
History.s. 8, ch. 57-128.
Note.Former s. 373.331.
403.361 Publication of notice of intention.The licensee shall cause the notice of intention to be published at least once a week for 2 consecutive weeks in a newspaper having general circulation and published within any county wherein the operation is to be conducted and in which the affected area is located, or if the operation is to be conducted in more than one county or if the affected area is located in more than one county or is located in a county other than the one in which the operation is to be conducted, then such notice shall be published in like manner in a newspaper having a general circulation and published within each of such counties. In case there is no newspaper published within the appropriate county, publication shall be made in a newspaper having a general circulation within the county.
History.s. 9, ch. 57-128.
Note.Former s. 373.341.
403.371 Proof of publication.Proof of publication shall be filed by the licensee with the department 15 days from the date of the last publication of notice. Proof of publication shall be by copy of the notice as published, attached to and made a part of the affidavit of the publisher or foreman of the newspaper publishing the notice.
History.s. 10, ch. 57-128; ss. 26, 35, ch. 69-106.
Note.Former s. 373.351.
403.381 Record and reports of operations.
(1) Each licensee shall keep and maintain a record of all operations conducted by him or her pursuant to his or her license showing the method employed, the type and composition of materials used, the times and places of operation, the name and post office address of each person participating or assisting in the operation other than licensee and such other information as may be required by the department and shall report the same to the department at such times as it may require.
(2) The records of the department and the reports of all licensees shall be available for public examination.
History.s. 11, ch. 57-128; ss. 26, 35, ch. 69-106; s. 8, ch. 97-103.
Note.Former s. 373.361.
403.391 Emergency licenses.Notwithstanding any provisions of this act to the contrary, the department may grant a license permitting a weather modification operation without compliance by the licensee with the provisions of ss. 403.351-403.371, and without publication of notice of intention as required by s. 403.341 if the operation appears to the department to be necessary or desirable in aid of the extinguishment of fire, dispersal of fog, or other emergency.
History.s. 12, ch. 57-128; ss. 26, 35, ch. 69-106.
Note.Former s. 373.371.
403.401 Suspension or revocation of license.Any license may be revoked or suspended if the department finds that the licensee has failed or refused to comply with any of the provisions of this act.
History.s. 13, ch. 57-128; s. 21, ch. 63-512; ss. 26, 35, ch. 69-106; s. 14, ch. 78-95.
Note.Former s. 373.381.
403.411 Penalty.Any person conducting a weather modification operation without first having procured a license, or who shall make a false statement in his or her application for license, or who shall fail to file any report or reports as required by this act, or who shall conduct any weather modification operation after revocation or suspension of his or her license, or who shall violate any other provision of this act, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; and, if a corporation, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083. Each such violation shall be a separate offense.
History.s. 14, ch. 57-128; s. 351, ch. 71-136; s. 9, ch. 97-103.
Note.Former s. 373.391.
403.412 Environmental Protection Act.
(1) This section shall be known and may be cited as the “Environmental Protection Act of 1971.”
(2)(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:
1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations;
2. Any person, natural or corporate, or governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules, or regulations for the protection of the air, water, and other natural resources of the state.
(b) In any suit under paragraph (a), the Department of Legal Affairs may intervene to represent the interests of the state.
(c) As a condition precedent to the institution of an action pursuant to paragraph (a), the complaining party shall first file with the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct complained of a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected. Upon receipt of a complaint, the governmental agency or authority shall forthwith transmit, by registered or certified mail, a copy of such complaint to those parties charged with violating the laws, rules, and regulations for the protection of the air, water, and other natural resources of the state. The agency receiving such complaint shall have 30 days after the receipt thereof within which to take appropriate action. If such action is not taken within the time prescribed, the complaining party may institute the judicial proceedings authorized in paragraph (a). However, failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the conduct or activity complained of.
(d) In any action instituted pursuant to paragraph (a), the court, in the interest of justice, may add as party defendant any governmental agency or authority charged with the duty of enforcing the applicable laws, rules, and regulations for the protection of the air, water, and other natural resources of the state.
(e) No action pursuant to this section may be maintained if the person (natural or corporate) or governmental agency or authority charged with pollution, impairment, or destruction of the air, water, or other natural resources of the state is acting or conducting operations pursuant to currently valid permit or certificate covering such operations, issued by the appropriate governmental authorities or agencies, and is complying with the requirements of said permits or certificates.
(f) In any action instituted pursuant to this section, other than an action involving a state NPDES permit authorized under s. 403.0885, the prevailing party or parties shall be entitled to costs and attorney’s fees. Any award of attorney’s fees in an action involving such a state NPDES permit shall be discretionary with the court. If the court has reasonable ground to doubt the solvency of the plaintiff or the plaintiff’s ability to pay any cost or judgment which might be rendered against him or her in an action brought under this section, the court may order the plaintiff to post a good and sufficient surety bond or cash.
(3) The court may grant injunctive relief and impose conditions on the defendant which are consistent with and in accordance with law and any rules or regulations adopted by any state or local governmental agency which is charged to protect the air, water, and other natural resources of the state from pollution, impairment, or destruction.
(4) The doctrines of res judicata and collateral estoppel shall apply. The court shall make such orders as necessary to avoid multiplicity of actions.
(5) In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. As used in this section and as it relates to citizens, the term “intervene” means to join an ongoing s. 120.569 or s. 120.57 proceeding; this section does not authorize a citizen to institute, initiate, petition for, or request a proceeding under s. 120.569 or s. 120.57. Nothing herein limits or prohibits a citizen whose substantial interests will be determined or affected by a proposed agency action from initiating a formal administrative proceeding under s. 120.569 or s. 120.57. A citizen’s substantial interests will be considered to be determined or affected if the party demonstrates it may suffer an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected by this chapter. No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner’s use or enjoyment of air, water, or natural resources protected by this chapter.
(6) Any Florida corporation not for profit which has at least 25 current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57, provided that the Florida corporation not for profit was formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action.
(7) In a matter pertaining to a federally delegated or approved program, a citizen of the state may initiate an administrative proceeding under this subsection if the citizen meets the standing requirements for judicial review of a case or controversy pursuant to Article III of the United States Constitution.
(8) Venue of any causes brought under this law shall lie in the county or counties wherein the cause of action is alleged to have occurred.
History.ss. 1, 2, 3, 4, 5, 6, ch. 71-343; s. 24, ch. 88-393; s. 10, ch. 97-103; s. 9, ch. 2002-261.
403.413 Florida Litter Law.
(1) SHORT TITLE.This section may be cited as the “Florida Litter Law.”
(2) DEFINITIONS.As used in this section:
(a) “Litter” means any garbage; rubbish; trash; refuse; can; bottle; box; container; paper; tobacco product; tire; appliance; mechanical equipment or part; building or construction material; tool; machinery; wood; motor vehicle or motor vehicle part; vessel; aircraft; farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.
(b) “Person” means any individual, firm, sole proprietorship, partnership, corporation, or unincorporated association.
(c) “Law enforcement officer” means any officer of the Florida Highway Patrol, a county sheriff’s department, a municipal law enforcement department, a law enforcement department of any other political subdivision, the department, or the Fish and Wildlife Conservation Commission. In addition, and solely for the purposes of this section, “law enforcement officer” means any employee of a county or municipal park or recreation department designated by the department head as a litter enforcement officer.
(d) “Aircraft” means a motor vehicle or other vehicle that is used or designed to fly but does not include a parachute or any other device used primarily as safety equipment.
(e) “Commercial purpose” means for the purpose of economic gain.
(f) “Commercial vehicle” means a vehicle that is owned or used by a business, corporation, association, partnership, or sole proprietorship or any other entity conducting business for a commercial purpose.
(g) “Dump” means to dump, throw, discard, place, deposit, or dispose of.
(h) “Motor vehicle” means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor, or semitrailer combination or any other vehicle that is powered by a motor.
(i) “Vessel” means a boat, barge, or airboat or any other vehicle used for transportation on water.
(3) RESPONSIBILITY OF LOCAL GOVERNING BODY OF A COUNTY OR MUNICIPALITY.The local governing body of a county or a municipality shall determine the training and qualifications of any employee of the county or municipality or any employee of the county or municipal park or recreation department designated to enforce the provisions of this section if the designated employee is not a regular law enforcement officer.
(4) DUMPING LITTER PROHIBITED.Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:
(a) In or on any public highway, road, street, alley, or thoroughfare, including any portion of the right-of-way thereof, or any other public lands, except in containers or areas lawfully provided therefor. When any litter is thrown or discarded from a motor vehicle, the operator or owner of the motor vehicle, or both, shall be deemed in violation of this section;
(b) In or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state, including canals. When any litter is thrown or discarded from a boat, the operator or owner of the boat, or both, shall be deemed in violation of this section; or
(c) In or on any private property, unless prior consent of the owner has been given and unless the dumping of such litter by such person will not cause a public nuisance or otherwise be in violation of any other state or local law, rule, or regulation.
(5) DUMPING RAW HUMAN WASTE PROHIBITED.Unless otherwise authorized by law or permit, it is unlawful for any person to dump raw human waste from any train, aircraft, motor vehicle, or vessel upon the public or private lands or waters of the state.
(6) PENALTIES; ENFORCEMENT.
(a) Any person who dumps litter in violation of subsection (4) in an amount not exceeding 15 pounds in weight or 27 cubic feet in volume and not for commercial purposes is guilty of a noncriminal infraction, punishable by a civil penalty of $100, from which $50 shall be deposited into the Solid Waste Management Trust Fund to be used for the solid waste management grant program pursuant to s. 403.7095. In addition, the court may require the violator to pick up litter or perform other labor commensurate with the offense committed.
(b) Any person who dumps litter in violation of subsection (4) in an amount exceeding 15 pounds in weight or 27 cubic feet in volume, but not exceeding 500 pounds in weight or 100 cubic feet in volume and not for commercial purposes is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the court shall require the violator to pick up litter or perform other community service commensurate with the offense committed. Further, if the violation involves the use of a motor vehicle, upon a finding of guilt, whether or not adjudication is withheld or whether imposition of sentence is withheld, deferred, or suspended, the court shall forward a record of the finding to the Department of Highway Safety and Motor Vehicles, which shall record a penalty of three points on the violator’s driver’s license pursuant to the point system established by s. 322.27.
(c) Any person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounds in weight or 100 cubic feet in volume or in any quantity for commercial purposes, or dumps litter which is a hazardous waste as defined in s. 403.703, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the court may order the violator to:
1. Remove or render harmless the litter that he or she dumped in violation of this section;
2. Repair or restore property damaged by, or pay damages for any damage arising out of, his or her dumping litter in violation of this section; or
3. Perform public service relating to the removal of litter dumped in violation of this section or to the restoration of an area polluted by litter dumped in violation of this section.
(d) A court may enjoin a violation of this section.
(e) A motor vehicle, vessel, aircraft, container, crane, winch, or machine used to dump litter that exceeds 500 pounds in weight or 100 cubic feet in volume is declared contraband and is subject to forfeiture in the same manner as provided in ss. 932.703 and 932.704.
(f) If a person sustains damages arising out of a violation of this section that is punishable as a felony, a court, in a civil action for such damages, shall order the person to pay the injured party threefold the actual damages or $200, whichever amount is greater. In addition, the court shall order the person to pay the injured party’s court costs and attorney’s fees. A final judgment rendered in a criminal proceeding against a defendant under this section estops the defendant from asserting any issue in a subsequent civil action under this paragraph which he or she would be estopped from asserting if such judgment were rendered in the civil action unless the criminal judgment was based upon a plea of no contest or nolo contendere.
(g) For the purposes of this section, if a person dumps litter or raw human waste from a commercial vehicle, that person is presumed to have dumped the litter or raw human waste for commercial purposes.
(h) In the criminal trial of a person charged with violating this section, the state does not have the burden of proving that the person did not have the right or authority to dump the litter or raw human waste or that litter or raw human waste dumped on private property causes a public nuisance. The defendant has the burden of proving that he or she had authority to dump the litter or raw human waste and that the litter or raw human waste dumped does not cause a public nuisance.
(i) It shall be the duty of all law enforcement officers to enforce the provisions of this section.
(j) Any person who violates the provisions of subsection (5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided, however, that any person who dumps more than 500 pounds or more than 100 cubic feet of raw human waste, or who dumps any quantity of such waste for commercial purposes, is guilty of a felony of the third degree, punishable as provided in paragraph (c).
(7) ENFORCEMENT BY CERTAIN COUNTY OR MUNICIPAL EMPLOYEES.Employees of counties or municipalities whose duty it is to ensure code compliance or to enforce codes and ordinances may be designated by the governing body of the county or the municipality to enforce the provisions of this section. Designation of such employees shall not provide the employees with the authority to bear arms or to make arrests.
(8) ENFORCEMENT OF OTHER REGULATIONS.This section does not limit the authority of any state or local agency to enforce other laws, rules, or ordinances relating to litter or solid waste management.
History.ss. 1, 2, 3, 4, 4A, ch. 71-239; s. 1, ch. 75-266; s. 1, ch. 77-82; s. 1, ch. 78-202; s. 7, ch. 80-382; s. 1, ch. 82-63; s. 1, ch. 88-79; s. 56, ch. 88-130; s. 12, ch. 89-175; s. 14, ch. 89-268; s. 1, ch. 90-76; ss. 16, 17, ch. 91-286; s. 378, ch. 94-356; s. 1, ch. 95-165; s. 11, ch. 97-103; s. 205, ch. 99-245; s. 1, ch. 2005-200; s. 2, ch. 2007-184.
403.4131 Litter control.
(1) The Department of Transportation shall establish an “adopt-a-highway” program to allow local organizations to be identified with specific highway cleanup and highway beautification projects authorized under s. 339.2405. The department shall monitor compliance with the provisions of the adopt-a-highway program to ensure that organizations participating in the program comply with the goals identified by the department.
(2) The Department of Transportation shall place signs discouraging litter at all off-ramps of the interstate highway system in the state. The department shall place other highway signs as necessary to discourage littering.
(3) Each county is encouraged to initiate a litter control and prevention program or to expand upon its existing program. The department shall establish a system of grants for municipalities and counties to implement litter control and prevention programs. In addition to the activities described in subsection (1), such grants shall at a minimum be used for litter cleanup, grassroots educational programs involving litter removal and prevention, and the placement of litter and recycling receptacles. Counties are encouraged to form working public private partnerships as authorized under this section to implement litter control and prevention programs at the community level. Counties that have a population under 100,000 are encouraged to develop a regional approach to administering and coordinating their litter control and prevention programs.
History.s. 55, ch. 88-130; s. 1, ch. 89-37; s. 2, ch. 89-296; s. 5, ch. 91-429; s. 39, ch. 93-207; s. 379, ch. 94-356; s. 14, ch. 98-258; s. 37, ch. 99-5; s. 3, ch. 99-294; s. 19, ch. 2000-331; s. 3, ch. 2007-184; s. 111, ch. 2010-102; s. 37, ch. 2010-225.
403.41315 Comprehensive illegal dumping, litter, and marine debris control and prevention.
(1) The Legislature finds that a comprehensive illegal dumping, litter, and marine debris control and prevention program is necessary to protect the beauty and the environment of Florida. The Legislature also recognizes that a comprehensive illegal dumping, litter, and marine debris control and prevention program will have a positive effect on the state’s economy. The Legislature finds that the state’s rapid population growth, the ever-increasing mobility of its population, and the large number of tourists contribute to the need for a comprehensive illegal dumping, litter, and marine debris control and prevention program. The Legislature further finds that the program must be coordinated and capable of having statewide identity and grassroots community support.
(2) The comprehensive illegal dumping, litter, and marine debris control and prevention program at a minimum must include the following:
(a) A local public awareness and educational campaign to educate individuals, government, businesses, and other organizations concerning the role they must assume in preventing and controlling litter.
(b) Enforcement provisions authorized under s. 403.413.
(c) Enforcement officers whose responsibilities include grassroots education along with enforcing litter and illegal dumping violations.
(d) Local illegal dumping, litter, and marine debris control and prevention programs operated at the county level with emphasis placed on grassroots educational programs designed to prevent and remove litter and marine debris.
(e) A statewide adopt-a-highway program as authorized under s. 403.4131.
(f) The highway beautification program authorized under s. 339.2405.
(g) A statewide Adopt-a-Shore program that includes beach, river, and lake shorelines and emphasizes litter and marine debris cleanup and prevention.
(h) The prohibition of balloon releases as authorized under s. 379.233.
(i) The placement of approved identifiable litter and recycling receptacles.
(j) Other educational programs that are implemented at the grassroots level involving volunteers and community programs that clean up and prevent litter, including Youth Conservation Corps activities.
History.s. 35, ch. 93-207; s. 4, ch. 2007-184; s. 201, ch. 2008-247.
403.4132 Litter pickup and removal.Local governments are encouraged to initiate programs to supplement the existing litter-removal program for public places and highway systems operated by the Department of Transportation. To the extent that funds are available from the department for litter pickup and removal programs beyond those annually available to the Department of Corrections, priority shall be given to contracting with nonprofit organizations for supplemental litter-removal programs that use youth employment programs.
History.s. 58, ch. 88-130; s. 16, ch. 96-423.
403.4133 Adopt-a-Shore Program.
(1) The Legislature finds that litter and illegal dumping present a threat to the state’s wildlife, environment, and shorelines. The Legislature further finds that public awareness and education will assist in preventing litter from being illegally deposited along the state’s shorelines.
(2) The Adopt-a-Shore Program shall be created within the Department of Environmental Protection. The program shall be designed to educate the state’s citizens and visitors about the importance of litter prevention and shall include approaches and techniques to remove litter from the state’s shorelines.
(3) For the purposes of this section, the term “shoreline” includes, but is not limited to, beaches, rivershores, and lakeshores.
History.s. 60, ch. 93-207; s. 5, ch. 2007-184.
403.4135 Litter receptacles.
(1) DEFINITIONS.As used in this section “litter” and “vessel” have the same meanings as provided in s. 403.413.
(2) RECEPTACLES REQUIRED.All ports, terminal facilities, boatyards, marinas, and other commercial facilities which house vessels and from which vessels disembark shall provide or ensure the availability of litter receptacles of sufficient size and capacity to accommodate the litter and other waste materials generated on board the vessels using its facilities, except for large quantities of spoiled or damaged cargoes not usually discharged by a ship. The department may enforce violations of this section pursuant to ss. 403.121 and 403.131.
History.s. 13, ch. 89-175; s. 18, ch. 91-286; s. 380, ch. 94-356.
403.414 Environmental award program.
(1) The department shall administer an environmental award program to recognize outstanding efforts in the protection, conservation, or restoration of the air, water, or other natural resources of the state by agencies, municipalities, counties, and other governmental units; private organizations, institutions, and industries; the communications media; and individuals.
(2) Awards may be approved by the secretary in the following areas:
(a) Water resources and quality.
(b) Air quality.
(c) Solid and hazardous waste management.
(d) Communications through any media.
(3) The department shall adopt rules to govern administration of the program. An agency, municipality, county, or other governmental unit; a private organization, institution, or industry; the communications media; or an individual may submit a nomination for an award to the department at any time. A nomination must be submitted on a form adopted by the department and must include information required by the department to consider that nomination.
(4) The department may accept money from any public agency or other source to be used for the environmental award program.
History.ss. 1, 2, 3, 4, 5, 6, ch. 74-60; s. 81, ch. 79-65; s. 264, ch. 81-259; s. 35, ch. 91-305.
403.415 Motor vehicle noise.
(1) SHORT TITLE.This act shall be known and may be cited as the “Florida Motor Vehicle Noise Prevention and Control Act of 1974.”
(2)(a) LEGISLATIVE INTENT.—The intent of the Legislature is to implement the state constitutional mandate of s. 7, Art. II of the State Constitution to improve the quality of life in the state by limiting the noise of new motor vehicles sold in the state and the noise of motor vehicles used on the highways of the state.
(b) It is also the intent of the Legislature to recognize the proposed United States Environmental Protection Act Noise Commission Standards Regulations for medium and heavy-duty trucks as being the most comprehensive available and in the best interest of Florida’s citizenry and, further, that such regulation shall preempt all state standards not identical to such regulation.
(3) DEFINITIONS.The following words and phrases when used in this section shall have the meanings respectively assigned to them in this subsection, except where the context otherwise requires:
(a) “dB A” means the composite abbreviation for A-weighted sound level, and the unit of sound level, the decibel.
(b) “Gross combination weight rating” or “GCWR” means the value specified by the manufacturer as the loaded weight of a combination vehicle.
(c) “Gross vehicle weight rating” or “GVWR” means the value specified by the manufacturer as the loaded weight of a single vehicle.
(d) “Motor vehicle” means any vehicle which is self-propelled and any vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.
(e) “Motorcycle” means any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor or a moped.
(f) “Moped” means any vehicle with pedals to permit propulsion by human power, having a seat or saddle for the use of the rider and designed to travel on not more than three wheels, with a motor rated not in excess of 2 brake horsepower and not capable of propelling the vehicle at a speed greater than 30 miles per hour on level ground, and with a power-drive system that functions directly or automatically without clutching or shifting gears by the operator after the drive system is engaged. If an internal combustion engine is used, the displacement may not exceed 50 cubic centimeters.
(g) “Sound level” means the A-weighted sound pressure level measured with fast response using an instrument complying with the specification for sound level meters of the American National Standards Institute, Inc., or its successor bodies, except that only A-weighting and fast dynamic response need be provided.
(h) “Vehicle” means any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.
(i) “Department” means the Department of Environmental Protection.
(4) NEW VEHICLE NOISE LIMITS.No person shall sell, offer for sale, or lease a new motor vehicle that produces a maximum sound level exceeding the following limits at a distance of 50 feet from the center of the lane of travel under test procedures established under subsection (5):
(a) For motorcycles:

Date of manufacture     Sound level limit

From January 1, 1973,

 to December 31, 1974..........86 dB A

On or after January 1, 1975..........83 dB A

(b) For any motor vehicle with a GVWR over 10,000 pounds, for any school bus, and for any multipurpose passenger vehicle, which is defined as a motor vehicle with motive power designed to carry 10 persons or less and constructed either on a truck chassis or with special features for occasional off-road operation:

Date of manufacture     Sound level limit

From January 1, 1973,

 to December 31, 1976..........86 dB A

On or after January 1, 1977..........83 dB A

(5) TEST PROCEDURES.The test procedures for determining compliance with this section shall be established by regulation of the department and in cooperation with the Department of Highway Safety and Motor Vehicles in substantial conformance with applicable standards and recommended practices established by the Society of Automotive Engineers, Inc., or its successor bodies, and the American National Standards Institute, Inc., or its successor bodies, for the measurement of motor vehicle sound levels.
(6) CERTIFICATION.The manufacturer, distributor, importer, or designated agent thereof shall file a written certificate with the department stating that the specific makes and models of motor vehicles described thereon comply with the provisions of this section. No new motor vehicle shall be sold, offered for sale, or leased unless such certificate has been filed.
(7) NOTIFICATION OF CERTIFICATION.The department shall notify the Department of Highway Safety and Motor Vehicles of all makes and models of motor vehicles for which valid certificates of compliance with the provisions of this section are filed.
(8) REPLACEMENT EQUIPMENT.
(a) No person shall sell or offer for sale for use as a part of the equipment of a motor vehicle any exhaust muffler, intake muffler, or other noise abatement device which, when installed, will permit the vehicle to be operated in a manner that the emitted sound level of the vehicle is increased above that emitted by the vehicle as originally manufactured and determined by the test procedures for new motor vehicle sound levels established under this section.
(b) The manufacturer, distributor, or importer, or designated agent thereof, shall file a written certificate with the department that his or her products sold within this state comply with the requirements of this section for their intended applications.
(9) OPERATING VEHICLE NOISE MEASUREMENTS.The department shall establish, with the cooperation of the Department of Highway Safety and Motor Vehicles, measurement procedures for determining compliance of operating vehicles with the noise limits of s. 316.293(2). The department shall advise the Department of Highway Safety and Motor Vehicles on technical aspects of motor vehicle noise enforcement regulations, assist in the training of enforcement officers, and administer a sound-level meter loan program for local enforcement agencies.
(10) ENACTMENT OF LOCAL ORDINANCES LIMITED.The provisions of this section shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this section unless expressly authorized. However, this subsection shall not prevent any local authority from enacting an ordinance when such enactment is necessary to vest jurisdiction of violation of this section in the local court.
History.ss. 1, 2, 3, ch. 74-110; ss. 1, 2, ch. 75-59; s. 1, ch. 76-289; s. 1, ch. 78-280; s. 82, ch. 79-65; s. 98, ch. 79-164; s. 1, ch. 80-338; s. 1, ch. 82-49; s. 22, ch. 87-161; s. 381, ch. 94-356; s. 12, ch. 97-103.
403.4151 Exempt motor vehicles.The provisions of this act shall not apply to any motor vehicle which is not required to be licensed under the provisions of chapter 320.
History.s. 7, ch. 74-110.
403.4153 Federal preemption.On and after the date of promulgation of noise emission standards by the administrator of the United States Environmental Protection Agency for a class of new motor vehicles as described in s. 403.415(4)(a) or (b), the state sound level limits in effect at that time for that class of vehicles shall be maintained until the federal standards become effective.
History.s. 2, ch. 76-289; s. 2, ch. 95-144.
403.4154 Phosphogypsum management program.
(1) DEFINITIONS.As used in this section, the term:
(a) “Department” means the Department of Environmental Protection.
(b) “Existing stack” means a phosphogypsum stack, as defined in paragraph (d), that is:
1. In existence in this state on May 12, 1993; or
2. Constructed in this state after May 12, 1993, and for which the department has received a certification of completion of construction submitted by the owner of the newly constructed phosphogypsum stack.

The term “existing stack” does not include a phosphogypsum stack that has been closed pursuant to a department permit or order.

(c) “Phosphogypsum” means calcium sulfate and byproducts produced by the reaction of sulfuric acid with phosphate rock to produce phosphoric acid.
(d) “Phosphogypsum stack” means any defined geographic area associated with a phosphoric acid production facility in which phosphogypsum is disposed of or stored, other than within a fully enclosed building, container, or tank.
(e) “Phosphogypsum stack system” means the phosphogypsum stack, pile, or landfill, together with all pumps, piping, ditches, drainage conveyances, water-control structures, collection pools, cooling ponds, surge ponds, and any other collection or conveyance system associated with the transport of phosphogypsum from the plant to the phosphogypsum stack, its management at the stack, and the process-wastewater return to the phosphoric acid production or other process. This definition specifically includes toe drain systems and ditches and other leachate collection systems but does not include conveyances within the confines of the fertilizer production plant or existing areas used in emergency circumstances caused by rainfall events of high volume or duration for the temporary storage of process wastewater to avoid discharges to surface waters of the state, which process wastewater must be removed from the temporary storage area as expeditiously as possible, but not to exceed 120 days after each emergency.
(f) “Process wastewater” means any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product, along with any leachate or runoff from the phosphogypsum stack system. This term does not include contaminated nonprocess wastewater as that term is defined in 40 C.F.R. part 418.11(c).
(2) REGULATORY PROGRAM.
(a) It is the intent of the Legislature that the department develop a program for the sound and effective regulation of phosphogypsum stack systems in the state.
(b) The department shall adopt rules that prescribe acceptable construction designs for new or expanded phosphogypsum stack systems and that prescribe permitting criteria for operation, long-term-care requirements, and closure financial responsibility requirements for phosphogypsum stack systems.
(c) Whoever willfully, knowingly, or with reckless indifference or gross carelessness misstates or misrepresents the financial condition or closure costs of an entity engaged in managing, owning, or operating a phosphogypsum stack or stack system commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083 by a fine of not more than $50,000 and by imprisonment for 5 years for each offense.
(d) If an owner or operator of a phosphogypsum stack or stack system fails to comply with department rules requiring demonstration of closure financial responsibility, no distribution may be made which would be prohibited under s. 607.06401(3) until the noncompliance is corrected. Whoever willfully, knowingly, or with reckless indifference or gross carelessness violates this prohibition commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083 by a fine of not more than $50,000 or by imprisonment for 5 years for each offense.
(3) ABATEMENT OF IMMINENT HAZARD.
(a) The department may take action to abate or substantially reduce any imminent hazard caused by the physical condition, maintenance, operation, or closure of a phosphogypsum stack system.
(b) An imminent hazard exists if the physical condition, maintenance, operation, or closure of a phosphogypsum stack system creates an immediate and substantial danger to human health, safety, or welfare or to the environment. A phosphogypsum stack system is presumed not to cause an imminent hazard if the physical condition and operation of the system are in compliance with all applicable department rules.
(c) The failure of an owner or operator of a phosphogypsum stack system to comply with department rules requiring demonstration of closure financial responsibility may be considered by the department as evidence that a phosphogypsum stack poses an imminent hazard for purposes of initiating actions authorized by paragraph (d).
(d) If the department determines that the failure of an owner or operator to comply with department rules requiring demonstration of financial responsibility or that the physical condition, maintenance, operation, or closure of a phosphogypsum stack system poses an imminent hazard, the department shall request access to the property on which such stack system is located from the owner or operator of the stack system for the purposes of taking action to abate or substantially reduce the imminent hazard. If the department, after reasonable effort, is unable to timely obtain the necessary access to abate or substantially reduce the imminent hazard, the department may institute action in its own name, using the procedures and remedies of s. 403.121 or s. 403.131, to abate or substantially reduce an imminent hazard. Whenever serious harm to human health, safety, or welfare, to the environment, or to private or public property may occur prior to completion of an administrative hearing or other formal proceeding that might be initiated to abate the risk of serious harm, the department may obtain from the court, ex parte, an injunction without paying filing and service fees prior to the filing and service of process.
(e) To abate or substantially reduce an imminent hazard, the department may take any appropriate action, including, but not limited to, using employees of the department or contracting with other state or federal agencies, with private third-party contractors, or with the owner or operator of the stack system, or financing, compensating, or funding a receiver, trustee, or owner of the stack system, to perform all or part of the work.
(f) The department shall recover from the owner or operator of the phosphogypsum stack system to the use of the Nonmandatory Land Reclamation Trust Fund all moneys expended from the fund, including funds expended prior to the effective date of this section, to abate an imminent hazard posed by the phosphogypsum stack system plus a penalty equal to an amount calculated at 30 percent of such funds expended. This penalty shall be imposed annually, and prorated from the date of payment from the fund until the expended funds and the penalty are repaid. If the department prevails in any action to recover funds pursuant to this subsection, it may recover reasonable attorney’s fees and costs incurred. Phosphogypsum may not be deposited on a stack until all moneys expended from the fund in connection with the stack have been repaid, unless the department determines that such placement is necessary to abate or avoid an imminent hazard or unless otherwise authorized by the department.
(g) The department may impose a lien on the real property on which the phosphogypsum stack system that poses an imminent hazard is located and on the real property underlying and other assets located at associated phosphate fertilizer production facilities equal in amount to the moneys expended from the Nonmandatory Land Reclamation Trust Fund pursuant to paragraph (e), including attorney’s fees and court costs. The owner of any property on which such a lien is imposed is entitled to a release of the lien upon payment to the department of the lien amount. The lien imposed by this section does not take priority over any other prior perfected lien on the real property, personal property, or other assets referenced in this paragraph, including, but not limited to, the associated phosphate rock mine and reserves.
(h) Upon a declaration by the Governor of an environmental emergency concerning the abatement of an imminent hazard involving a phosphogypsum stack or stack system, the state and any agent under contract with the state for the provision of services directly related to the abatement of such hazard shall not become liable under state laws for environmental protection for any costs, damages, or penalties associated with the abatement of the imminent hazard. The Legislature finds that provision of this limited immunity is in the public interest and necessary for the abatement of the imminent hazard.
(4) REGISTRATION FEES.
(a)1. The owner or operator of each existing phosphogypsum stack who has not provided a performance bond, letter of credit, trust fund agreement, or closure insurance to demonstrate financial responsibility for closure and long-term care shall pay to the department a fee as set forth in this paragraph. All fees shall be deposited in the Nonmandatory Land Reclamation Trust Fund.
2. The amount of the fee for each existing stack shall be $75,000 for each of the five 12-month periods following July 1, 2001.
3. The amount of the fee for any new stack for which the owner or operator has not provided a performance bond, letter of credit, trust fund agreement, or closure insurance to demonstrate financial responsibility for closure and long-term care shall be $75,000 for each of the five 12-month periods following the issuance by the department of a construction permit for that stack.
4. Within 30 days after a phosphogypsum stack has been certified as closed pursuant to rule 62-673.620(2) and (3), Florida Administrative Code, the department shall refund to the owner of the closed phosphogypsum stack an amount from the Nonmandatory Land Reclamation Trust Fund equal to the total amount of fee payments made by the owner or operator to the fund in connection with the closed phosphogypsum stack. However, a refund may not be paid until the Mulberry and Piney Point phosphogypsum stack systems have been closed and a satisfactory reserve has been established in the Nonmandatory Reclamation Lands Trust Fund.
(b) On or before August 1 of each year, the department shall provide written notice to each owner of an existing stack of any fee payable for the 12-month period commencing on the immediately preceding July 1. Each owner shall remit the fee to the department on or before August 31 of each year.
(5) CLOSURE OF ABANDONED SYSTEMS.
(a) The department may expend money from the Nonmandatory Land Reclamation Trust Fund to take all steps necessary to close a phosphogypsum stack system and to carry out postclosure care in accordance with department rules in effect as of the date of commencement of closure activities, subject to the conditions set forth in this subsection. To accomplish such closure and postclosure care, the department may take any appropriate action, including, but not limited to, using employees of the department or by contracting with other state or federal agencies, with private third-party contractors, or with the owner or operator of the stack system, to perform all or part of the work.
(b) The department may close a phosphogypsum stack system through agreement with the owner or by court order. In determining whether closure is appropriate, the court shall consider whether closing the stack will protect human health, safety, or welfare or the environment; the useful life of the stack; the effect of delaying closure on the stability of the fund; the likelihood that the stack will be operated again; and any other relevant factors. If the court finds that closure is appropriate, the court may appoint a receiver to oversee the closure or shall authorize department employees, agents, and contractors to enter all land owned by the owner of the phosphogypsum stack system for the performance of closure and postclosure activities.
(c) The department may impose a lien on the real property on which a closed phosphogypsum stack system is located and on the real property underlying and other assets located at its formerly associated phosphate fertilizer production facilities equal in amount to the moneys expended from the Nonmandatory Land Reclamation Trust Fund pursuant to this subsection for closure and postclosure care. The owner of any property on which such a lien is imposed is entitled to a release of the lien upon payment to the department of the lien amount and execution of an agreement to carry out postclosure care in accordance with applicable department rules. The lien imposed by this section does not take priority over any other prior perfected lien on the real property, personal property, or other assets referenced in this paragraph, including, but not limited to, the associated phosphate rock mine and reserves.
History.s. 62, ch. 93-207; s. 382, ch. 94-356; s. 3, ch. 2001-134; s. 8, ch. 2003-423; s. 64, ch. 2005-2.
403.4155 Phosphogypsum management; rulemaking authority.
(1) The Department of Environmental Protection shall adopt rules to amend existing chapter 62-672, Florida Administrative Code, to ensure that impoundment structures and water conveyance piping systems used in phosphogypsum management are designed and maintained to meet critical safety standards. The rules must require that any impoundment structure used in a phosphogypsum stack system, together with all pumps, piping, ditches, drainage conveyances, water control structures, collection pools, cooling ponds, surge ponds, and any other collection or conveyance system associated with phosphogypsum transport, cooling water, or the return of process wastewater, is constructed using sound engineering practices and is operated to avoid spills or discharges of materials which adversely affect surface or ground waters. The rules must require that a phosphogypsum stack system owner maintain a log detailing the owner’s operating inspection schedule, results, and any corrective action taken based on the inspection results. The rules must require phosphogypsum stack owners to maintain an emergency contingency plan and demonstrate the ability to mobilize equipment and manpower to respond to emergency situations at phosphogypsum stack systems. The rules must establish a reasonable time period not to exceed 12 months for facilities to meet the provisions of the rules adopted pursuant to this section.
(2)(a) By October 1, 2004, the department shall initiate rulemaking to require that phosphogypsum stack system operation plans required by department rule be amended by adding an interim stack system management (ISSM) plan that provides written instructions for the operation of the system, assuming that no phosphoric acid would be produced at the facility for a 2-year period. The initial ISSM plan must be completed as of the first July 1 following the adoption of the rule required by this section. The ISSM plan must include:
1. A detailed description of process water management procedures that will be implemented to ensure that the stack system operates in accordance with all applicable department permit conditions and rules. The procedures must address the actual process water levels present at the facility 30 days prior to the completion of the plan and must assume that the facility will receive annual average rainfall during the 2-year planning period.
2. A detailed description of the procedures to be followed for the daily operation and routine maintenance of the stack system, including required environmental sampling and analyses, as well as for any maintenance or repairs recommended following annual inspections of the system.
3. Identification of all machinery, equipment, and materials necessary to implement the plan.
4. Identification of the sources of power or fuel necessary to implement the plan.
5. Identification of the personnel necessary to implement the plan.
(b) The ISSM plan shall be updated annually, taking into account process water levels as of June 1 of each year and the existing stack system configuration.
(c) The requirements listed in paragraphs (a) and (b) are applicable to all phosphogypsum stack systems except those that have been closed, that are undergoing closure, or for which an application for a closure permit has been submitted pursuant to department rule.
(3)(a) By October 1, 2004, the department shall initiate rulemaking to require that general plans and schedules for the closure of phosphogypsum stack systems include:
1. A description of the physical configuration of the phosphogypsum stack system anticipated at the time of closure at the end of useful life of the system.
2. A site-specific water management plan describing the procedures to be employed at the end of the useful life of the system to manage the anticipated volume of process water in an environmentally sound manner.
3. An estimate of the cost of management of the anticipated volume of process water in accordance with the site-specific water management plan.
4. A description of all construction work necessary to properly close the system in accordance with department rules.
5. An estimate of all costs associated with long-term care of the closed system, including maintenance and monitoring, in accordance with department rules.
(b) The department shall revise chapter 62-673, Florida Administrative Code, to require the owner or operator of a phosphogypsum stack management system to demonstrate financial responsibility for the costs of terminal closure of the phosphogypsum stack system in a manner that protects the public health and safety, and must include criteria to evaluate the adequacy of the demonstration of financial responsibility.
1. The costs of terminal closure shall be estimated based on the stack system configuration as of the end of its useful life as determined by the owner or operator. These costs shall be verified by an independent third party.
2. The owner or operator may demonstrate financial responsibility by use of one or more of the following methods:
a. Bond.
b. Letter of credit.
c. Cash deposit arrangement.
d. Closure insurance.
e. Financial tests.
f. Corporate guarantee.

For the purposes of this section, the term “cash deposit arrangement” means a trust fund, business or statutory trust, escrow account, or similar cash deposit entity whereby a fiduciary holds and invests funds deposited by the owner or operator, which funds shall be expended only for the purpose of directly implementing all or some portion of phosphogypsum stack system closure requirements of that particular owner or operator.

3. A trustee, escrow agent, or other fiduciary of a cash deposit arrangement authorized by this section has no liability for any damage or loss of any kind arising out of or caused by performance of duties imposed by the terms of the applicable agreement unless such damage or loss is directly caused by the gross negligence or criminal act of the trustee, escrow agent, or other fiduciary. In performing its duties pursuant to the applicable agreement, a trustee, escrow agent, or other fiduciary is entitled to rely upon information and direction received from the grantor or the department without independent verification unless such information and direction are manifestly in error.
4. To the extent that a cash deposit arrangement is used to provide proof of financial responsibility for all or a portion of closure costs, the trust, escrow, or cash arrangement deposit entity is considered to have assumed all liability for such closure costs up to the amount of the cash deposit, less any fees or costs of the trustee, escrow agent, or other fiduciary.
5. Any funds maintained in a cash deposit arrangement authorized by this section are not subject to claims of creditors of the owner or operator and are otherwise exempt from setoff, execution, levy, garnishment, and similar writs and proceedings.
6. Any funds remaining in a trust, escrow account, or other cash deposit arrangement after the purpose of such cash deposit arrangement under this section has been accomplished shall be returned to the grantor.
(4) The department shall revise chapter 62-673, Florida Administrative Code, to require the owner or operator of a phosphogypsum stack system to demonstrate financial responsibility for the costs of terminal closure of the phosphogypsum stack system in a manner that protects the environment and the public health and safety. At a minimum, such rules must include or address the following requirements:
(a) That the cost of closure and long-term care be re-estimated by a professional engineer and adjusted for inflation on an annual basis. At a minimum, such cost data must include:
1. The cost of treatment and appropriate disposal of all process wastewater, both ponded and pore, in the system.
2. All construction work necessary to properly close the system in accordance with department rules.
3. All costs associated with long-term care of the closed system, including maintenance and monitoring, in accordance with department rules.
(b) That financial statements and financial data be prepared according to generally accepted accounting principles within the United States and submitted quarterly.
(c) That audited financial statements be provided annually along with the statement of financial assurance.
(d) That any owner or operator in default on any of its obligations report such default immediately.
History.s. 1, ch. 98-117; s. 4, ch. 2001-134; s. 9, ch. 2003-423.
403.42 Florida Clean Fuel Act.
(1) SHORT TITLE AND PURPOSE.
(a) This section may be cited as the “Florida Clean Fuel Act.”
(b) The purposes of this act are to establish the Clean Fuel Florida Advisory Board under the Department of Environmental Protection to study the implementation of alternative fuel vehicles and to formulate and provide to the Secretary of Environmental Protection recommendations on expanding the use of alternative fuel vehicles in this state and make funding available for implementation.
(2) DEFINITIONS.For purposes of this act:
(a) “Alternative fuels” include electricity, biodiesel, natural gas, propane, and any other fuel that may be deemed appropriate in the future by the Department of Environmental Protection with guidance from the Clean Fuel Florida Advisory Board.
(b) “Alternative fuel vehicles” include on-road and off-road transportation vehicles and light-duty, medium-duty, and heavy-duty vehicles that are powered by an alternative fuel or a combination of alternative fuels.
(3) CLEAN FUEL FLORIDA ADVISORY BOARD ESTABLISHED; MEMBERSHIP; DUTIES AND RESPONSIBILITIES.
(a) The Clean Fuel Florida Advisory Board is established within the Department of Environmental Protection.
(b)1. The advisory board shall consist of the Executive Director of the Department of Economic Opportunity, the Secretary of Environmental Protection, or a designee from that department, the Commissioner of Education, or a designee from that department, the Secretary of Transportation, or a designee from that department, the Commissioner of Agriculture, or a designee from that department, the Secretary of Management Services, or a designee from that department, and a representative of each of the following, who shall be appointed by the Secretary of Environmental Protection:
a. The Florida biodiesel industry.
b. The Florida electric utility industry.
c. The Florida natural gas industry.
d. The Florida propane gas industry.
e. An automobile manufacturers’ association.
f. A Florida Clean Cities Coalition designated by the United States Department of Energy.
g. Enterprise Florida, Inc.
h. EV Ready Broward.
i. The Florida petroleum industry.
j. The Florida League of Cities.
k. The Florida Association of Counties.
l. Floridians for Better Transportation.
m. A motor vehicle manufacturer.
n. Florida Local Environment Resource Agencies.
o. Project for an Energy Efficient Florida.
p. Florida Transportation Builders Association.
2. The purpose of the advisory board is to serve as a resource for the department and to provide the Governor, the Legislature, and the Secretary of Environmental Protection with private sector and other public agency perspectives on achieving the goal of increasing the use of alternative fuel vehicles in this state.
3. Members shall be appointed to serve terms of 1 year each, with reappointment at the discretion of the Secretary of Environmental Protection. Vacancies shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
4. The board shall annually select a chairperson.
5.a. The board shall meet at least once each quarter or more often at the call of the chairperson or the Secretary of Environmental Protection.
b. Meetings are exempt from the notice requirements of chapter 120, and sufficient notice shall be given to afford interested persons reasonable notice under the circumstances.
6. Members of the board are entitled to travel expenses while engaged in the performance of board duties.
7. The board shall terminate 5 years after the effective date of this act.
(c) The board shall review the performance of the state with reference to alternative fuel vehicle implementation in complying with federal laws and maximizing available federal funding and may:
1. Advise the Governor, Legislature, and the Secretary of Environmental Protection and make recommendations regarding implementation and use of alternative fuel vehicles in this state.
2. Identify potential improvements in this act and the state’s alternative fuel policies.
3. Request from all state agencies any information the board determines relevant to board duties.
4. Regularly report to the Secretary of Environmental Protection, the Governor, the President of the Senate, and the Speaker of the House of Representatives regarding the board’s findings and recommendations.
(d)1. The advisory board shall make recommendations to the Department of Environmental Protection for establishing pilot programs in this state that provide experience and support the best use expansion of the alternative fuel vehicle industry in this state. No funds shall be released for a project unless there is at least a 50-percent private or local match.
2. In addition to the pilot programs, the advisory board shall assess federal, state, and local initiatives to identify incentives that encourage successful alternative fuel vehicle programs; obstacles to alternative fuel vehicle use including legislative, regulatory, and economic obstacles; and programs that educate and inform the public about alternative fuel vehicles.
3. The advisory board is charged with determining a reasonable, fair, and equitable way to address current motor fuel taxes as they apply to alternative fuels and at what threshold of market penetration.
4. Based on its findings, the advisory board shall develop recommendations to the Legislature on future alternative fuel vehicle programs and legislative changes that provide the best use of state and other resources to enhance the alternative fuel vehicle market in this state and maximize the return on that investment in terms of job creation, economic development, and emissions reduction.
(e) The advisory board, working with the Department of Environmental Protection, shall develop a budget for the department’s approval, and all expenditures shall be approved by the department. At the conclusion of the first year, the department shall conduct an audit of the board and board programs.
History.s. 72, ch. 99-248; s. 28, ch. 2000-153; s. 17, ch. 2004-243; s. 286, ch. 2011-142.
403.44 Florida Climate Protection Act.
(1) The Legislature finds it is in the best interest of the state to document, to the greatest extent practicable, greenhouse gas emissions and to pursue a market-based emissions abatement program, such as cap and trade, to address greenhouse gas emissions reductions.
(2) As used in this section, the term:
(a) “Allowance” means a credit issued by the department through allotments or auction which represents an authorization to emit specific amounts of greenhouse gases, as further defined in department rule.
(b) “Cap and trade” or “emissions trading” means an administrative approach used to control pollution by providing a limit on total allowable emissions, providing for allowances to emit pollutants, and providing for the transfer of the allowances among pollutant sources as a means of compliance with emission limits.
(c) “Greenhouse gas” or “GHG” means carbon dioxide, methane, nitrous oxide, and fluorinated gases such as hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.
(d) “Leakage” means the offset of emission abatement that is achieved in one location subject to emission control regulation by increased emissions in unregulated locations.
(e) “Major emitter” means an electric utility regulated under this chapter.
(3) The department may adopt rules for a cap-and-trade regulatory program to reduce greenhouse gas emissions from major emitters. When developing the rules, the department shall consult with the Department of Agriculture and Consumer Services and the Florida Public Service Commission and may consult with the Governor’s Action Team for Energy and Climate Change. The department shall not adopt rules until after January 1, 2010. The rules shall not become effective until ratified by the Legislature.
(4) The rules of the cap-and-trade regulatory program shall include, but are not limited to:
(a) A statewide limit or cap on the amount of greenhouse gases emitted by major emitters.
(b) Methods, requirements, and conditions for allocating the cap among major emitters.
(c) Methods, requirements, and conditions for emissions allowances and the process for issuing emissions allowances.
(d) The relationship between allowances and the specific amounts of greenhouse gas emissions they represent.
(e) The length of allowance periods and the time over which entities must account for emissions and surrender allowances equal to emissions.
(f) The timeline of allowances from the initiation of the program through to 2050.
(g) A process for the trade of allowances between major emitters, including a registry, tracking, or accounting system for such trades.
(h) Cost containment mechanisms to reduce price and cost risks associated with the electric generation market in this state. Cost containment mechanisms to be considered for inclusion in the rules include, but are not limited to:
1. Allowing major emitters to borrow allowances from future time periods to meet their greenhouse gas emission limits.
2. Allowing major emitters to bank greenhouse gas emission reductions in the current year to be used to meet emission limits in future years.
3. Allowing major emitters to purchase emissions offsets from other entities that produce verifiable reductions in unregulated greenhouse gas emissions or that produce verifiable reductions in greenhouse gas emissions through voluntary practices that capture and store greenhouse gases that otherwise would be released into the atmosphere. In considering this cost containment mechanism, the department shall identify sectors and activities outside of the capped sectors, including other state, federal, or international activities, and the conditions under which reductions there can be credited against emissions of capped entities in place of allowances issued by the department. The department shall also consider potential methods and their effectiveness to avoid double-incentivizing such activities.
4. Providing a safety valve mechanism to ensure that the market prices for allowances or offsets do not surpass a predetermined level compatible with the affordability of electric utility rates and the well-being of the state’s economy. In considering this cost containment mechanism, the department shall evaluate different price levels for the safety valve and methods to change the price level over time to reflect changing state, federal, and international markets, regulatory environments, and technological advancements.

In considering cost containment mechanisms for inclusion in the rules, the department shall evaluate the anticipated overall effect of each mechanism on the abatement of greenhouse gas emissions and on electricity ratepayers and the benefits and costs of each to the state’s economy, and shall also consider the interrelationships between the mechanisms under consideration.

(i) A process to allow the department to exercise its authority to discourage leakage of GHG emissions to neighboring states attributable to the implementation of this program.
(j) Provisions for a trial period on the trading of allowances before full implementation of a trading system.
(5) In recommending and evaluating proposed features of the cap-and-trade system, the following factors shall be considered:
(a) The overall cost-effectiveness of the cap-and-trade system in combination with other policies and measures in meeting statewide targets.
(b) Minimizing the administrative burden to the state of implementing, monitoring, and enforcing the program.
(c) Minimizing the administrative burden on entities covered under the cap.
(d) The impacts on electricity prices for consumers.
(e) The specific benefits to the state’s economy for early adoption of a cap-and-trade system for greenhouse gases in the context of federal climate change legislation and the development of new international compacts.
(f) The specific benefits to the state’s economy associated with the creation and sale of emissions offsets from economic sectors outside of the emissions cap.
(g) The potential effects on leakage if economic activity relocates out of the state.
(h) The effectiveness of the combination of measures in meeting identified targets.
(i) The implications for near-term periods of long-term targets specified in the overall policy.
(j) The overall costs and benefits of a cap-and-trade system to the state economy.
(k) How to moderate impacts on low-income consumers that result from energy price increases.
(l) Consistency of the program with other state and possible federal efforts.
(m) The feasibility and cost-effectiveness of extending the program scope as broadly as possible among emitting activities and sinks in Florida.
(n) Evaluation of the conditions under which Florida should consider linking its trading system to the systems of other states or other countries and how that might be affected by the potential inclusion in the rule of a safety valve.
(6) Recognizing that the international, national, and neighboring state policies and the science of climate change will evolve, prior to submitting the proposed rules to the Legislature for consideration, the department shall submit the proposed rules to the Department of Agriculture and Consumer Services, which shall review the proposed rules and submit a report to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the department. The report shall address:
(a) The overall cost-effectiveness of the proposed cap-and-trade system in combination with other policies and measures in meeting statewide targets.
(b) The administrative burden to the state of implementing, monitoring, and enforcing the program.
(c) The administrative burden on entities covered under the cap.
(d) The impacts on electricity prices for consumers.
(e) The specific benefits to the state’s economy for early adoption of a cap-and-trade system for greenhouse gases in the context of federal climate change legislation and the development of new international compacts.
(f) The specific benefits to the state’s economy associated with the creation and sale of emissions offsets from economic sectors outside of the emissions cap.
(g) The potential effects on leakage if economic activity relocates out of the state.
(h) The effectiveness of the combination of measures in meeting identified targets.
(i) The economic implications for near-term periods of short-term and long-term targets specified in the overall policy.
(j) The overall costs and benefits of a cap-and-trade system to the economy of the state.
(k) The impacts on low-income consumers that result from energy price increases.
(l) The consistency of the program with other state and possible federal efforts.
(m) The evaluation of the conditions under which the state should consider linking its trading system to the systems of other states or other countries and how that might be affected by the potential inclusion in the rule of a safety valve.
(n) The timing and changes in the external environment, such as proposals by other states or implementation of a federal program that would spur reevaluation of the Florida program.
(o) The conditions and options for eliminating the Florida program if a federal program were to supplant it.
(p) The need for a regular reevaluation of the progress of other emitting regions of the country and of the world, and whether other regions are abating emissions in a commensurate manner.
(q) The desirability of and possibilities of broadening the scope of the state’s cap-and-trade system at a later date to include more emitting activities as well as sinks in Florida, the conditions that would need to be met to do so, and how the program would encourage these conditions to be met, including developing monitoring and measuring techniques for land use emissions and sinks, regulating sources upstream, and other considerations.
History.s. 65, ch. 2008-227; s. 2, ch. 2010-143; s. 521, ch. 2011-142.
ELECTRICAL POWER PLANT AND
TRANSMISSION LINE SITING
403.501 Short title.
403.502 Legislative intent.
403.503 Definitions relating to Florida Electrical Power Plant Siting Act.
403.504 Department of Environmental Protection; powers and duties enumerated.
403.5055 Application for permits pursuant to s. 403.0885.
403.506 Applicability, thresholds, and certification.
403.5063 Notice of intent to file application.
403.5064 Application; schedules.
403.5065 Appointment of administrative law judge; powers and duties.
403.5066 Determination of completeness.
403.50663 Informational public meetings.
403.50665 Land use consistency.
403.507 Preliminary statements of issues, reports, project analyses, and studies.
403.508 Land use and certification hearings, parties, participants.
403.509 Final disposition of application.
403.5095 Alteration of time limits.
403.510 Superseded laws, regulations, and certification power.
403.511 Effect of certification.
403.5112 Filing of notice of certified corridor route.
403.5113 Postcertification amendments and review.
403.5115 Public notice.
403.5116 County and municipal authority unaffected by ch. 75-22.
403.512 Revocation or suspension of certification.
403.513 Review.
403.514 Enforcement of compliance.
403.515 Availability of information.
403.516 Modification of certification.
403.517 Supplemental applications for sites certified for ultimate site capacity.
403.5175 Existing electrical power plant site certification.
403.518 Fees; disposition.
403.5185 Law applicable to applications processed under ss. 403.501-403.518.
403.519 Exclusive forum for determination of need.
403.52 Short title.
403.521 Legislative intent.
403.522 Definitions relating to the Florida Electric Transmission Line Siting Act.
403.523 Department of Environmental Protection; powers and duties.
403.524 Applicability; certification; exemptions.
403.525 Administrative law judge; appointment; powers and duties.
403.5251 Application; schedules.
403.5252 Determination of completeness.
403.526 Preliminary statements of issues, reports, and project analyses; studies.
403.527 Certification hearing, parties, participants.
403.5271 Alternate corridors.
403.5272 Informational public meetings.
403.5275 Amendment to the application.
403.528 Alteration of time limits.
403.529 Final disposition of application.
403.531 Effect of certification.
403.5312 Filing of notice of certified corridor route.
403.5315 Modification of certification.
403.5317 Postcertification activities.
403.532 Revocation or suspension of certification.
403.533 Enforcement of compliance.
403.536 Superseded laws, regulations, and certification power.
403.5363 Public notices; requirements.
403.5365 Fees; disposition.
403.537 Determination of need for transmission line; powers and duties.
403.539 Certification admissible in eminent domain proceedings; attorney’s fees and costs.
403.501 Short title.Sections 403.501-403.518 shall be known and may be cited as the “Florida Electrical Power Plant Siting Act.”
History.s. 1, ch. 73-33; s. 1, ch. 76-76; s. 1, ch. 90-331.
403.502 Legislative intent.The Legislature finds that the present and predicted growth in electric power demands in this state requires the development of a procedure for the selection and utilization of sites for electrical generating facilities and the identification of a state position with respect to each proposed site and its associated facilities. The Legislature recognizes that the selection of sites and the routing of associated facilities, including transmission lines, will have a significant impact upon the welfare of the population, the location and growth of industry, and the use of the natural resources of the state. The Legislature finds that the efficiency of the permit application and review process at both the state and local level would be improved with the implementation of a process whereby a permit application would be centrally coordinated and all permit decisions could be reviewed on the basis of standards and recommendations of the deciding agencies. It is the policy of this state that, while recognizing the pressing need for increased power generation facilities, the state shall ensure through available and reasonable methods that the location and operation of electrical power plants will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life and will not unduly conflict with the goals established by the applicable local comprehensive plans. It is the intent to seek courses of action that will fully balance the increasing demands for electrical power plant location and operation with the broad interests of the public. Such action will be based on these premises:
(1) To assure the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection.
(2) To effect a reasonable balance between the need for the facility and the environmental impact resulting from construction and operation of the facility, including air and water quality, fish and wildlife, and the water resources and other natural resources of the state.
(3) To meet the need for electrical energy as established pursuant to s. 403.519.
(4) To assure the citizens of Florida that renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available.
History.s. 1, ch. 73-33; s. 2, ch. 90-331; s. 2, ch. 2007-117; s. 66, ch. 2008-227.
403.503 Definitions relating to Florida Electrical Power Plant Siting Act.As used in this act:
(1) “Act” means the Florida Electrical Power Plant Siting Act.
(2) “Agency,” as the context requires, means an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or other unit or entity of government, including a regional or local governmental entity.
(3) “Alternate corridor” means an area that is proposed by the applicant or a third party within which all or part of an associated electrical transmission line right-of-way is to be located and that is different from the preferred transmission line corridor proposed by the applicant. The width of the alternate corridor proposed for certification for an associated electrical transmission line may be the width of the proposed right-of-way or a wider boundary not to exceed a width of 1 mile. The area within the alternate corridor may be further restricted as a condition of certification. The alternate corridor may include alternate electrical substation sites if the applicant has proposed an electrical substation as part of the portion of the proposed electrical transmission line.
(4) “Amendment” means a material change in the information provided by the applicant to the application for certification made after the initial application filing.
(5) “Applicant” means any electric utility which applies for certification pursuant to the provisions of this act.
(6) “Application” means the documents required by the department to be filed to initiate a certification review and evaluation, including the initial document filing, amendments, and responses to requests from the department for additional data and information.
(7) “Associated facilities” means, for the purpose of certification, those onsite and offsite facilities which directly support the construction and operation of the electrical power plant such as electrical transmission lines, substations, and fuel unloading facilities; pipelines necessary for transporting fuel for the operation of the facility or other fuel transportation facilities; water or wastewater transport pipelines; construction, maintenance, and access roads; and railway lines necessary for transport of construction equipment or fuel for the operation of the facility.
(8) “Board” means the Governor and Cabinet sitting as the siting board.
(9) “Certification” means the written order of the board, or secretary when applicable, approving an application for the licensing of an electrical power plant, in whole or with such changes or conditions as the board may deem appropriate.
(10) “Completeness” means that the application has addressed all applicable sections of the prescribed application format, and that those sections are sufficient in comprehensiveness of data or in quality of information provided to allow the department to determine whether the application provides the reviewing agencies adequate information to prepare the reports required by s. 403.507.
(11) “Corridor” means the proposed area within which an associated linear facility right-of-way is to be located. The width of the corridor proposed for certification as an associated facility, at the option of the applicant, may be the width of the right-of-way or a wider boundary, not to exceed a width of 1 mile. The area within the corridor in which a right-of-way may be located may be further restricted by a condition of certification. After all property interests required for the right-of-way have been acquired by the licensee, the boundaries of the area certified shall narrow to only that land within the boundaries of the right-of-way. The corridors proper for certification shall be those addressed in the application, in amendments to the application filed under s. 403.5064, and in notices of acceptance of proposed alternate corridors filed by an applicant and the department pursuant to s. 403.5271 as incorporated by reference in s. 403.5064(1)(b) for which the required information for the preparation of agency supplemental reports was filed.
(12) “Department” means the Department of Environmental Protection.
(13) “Designated administrative law judge” means the administrative law judge assigned by the Division of Administrative Hearings pursuant to chapter 120 to conduct the hearings required by this act.
(14) “Electrical power plant” means, for the purpose of certification, any steam or solar electrical generating facility using any process or fuel, including nuclear materials, except that this term does not include any steam or solar electrical generating facility of less than 75 megawatts in capacity unless the applicant for such a facility elects to apply for certification under this act. This term also includes the site; all associated facilities that will be owned by the applicant that are physically connected to the site; all associated facilities that are indirectly connected to the site by other proposed associated facilities that will be owned by the applicant; and associated transmission lines that will be owned by the applicant which connect the electrical power plant to an existing transmission network or rights-of-way to which the applicant intends to connect. At the applicant’s option, this term may include any offsite associated facilities that will not be owned by the applicant; offsite associated facilities that are owned by the applicant but that are not directly connected to the site; any proposed terminal or intermediate substations or substation expansions connected to the associated transmission line; or new transmission lines, upgrades, or improvements of an existing transmission line on any portion of the applicant’s electrical transmission system necessary to support the generation injected into the system from the proposed electrical power plant.
(15) “Electric utility” means cities and towns, counties, public utility districts, regulated electric companies, electric cooperatives, and joint operating agencies, or combinations thereof, engaged in, or authorized to engage in, the business of generating, transmitting, or distributing electric energy.
(16) “Federally delegated or approved permit program” means any environmental regulatory program approved by an agency of the Federal Government so as to authorize the department to administer and issue licenses pursuant to federal law, including, but not limited to, new source review permits, operation permits for major sources of air pollution, and prevention of significant deterioration permits under the Clean Air Act (42 U.S.C. ss. 7401 et seq.), permits under ss. 402 and 404 of the Clean Water Act (33 U.S.C. ss. 1251 et seq.), and permits under the Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.).
(17) “License” means a franchise, permit, certification, registration, charter, comprehensive plan amendment, development order or permit as defined in chapters 163 and 380, or similar form of authorization required by law, including permits issued under federally delegated or approved permit programs, but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial act.
(18) “Licensee” means an applicant that has obtained a certification order for the subject project.
(19) “Local government” means a municipality or county in the jurisdiction of which the electrical power plant is proposed to be located.
(20) “Modification” means any change in the certification order after issuance, including a change in the conditions of certification.
(21) “Nonprocedural requirements of agencies” means any agency’s regulatory requirements established by statute, rule, ordinance, zoning ordinance, land development code, or comprehensive plan, excluding any provisions prescribing forms, fees, procedures, or time limits for the review or processing of information submitted to demonstrate compliance with such regulatory requirements.
(22) “Notice of intent” means that notice which is filed with the department on behalf of an applicant prior to submission of an application pursuant to this act and which notifies the department of an intent to file an application.
(23) “Person” means an individual, partnership, joint venture, private or public corporation, association, firm, public service company, political subdivision, municipal corporation, government agency, public utility district, or any other entity, public or private, however organized.
(24) “Preliminary statement of issues” means a listing and explanation of those issues within the agency’s jurisdiction which are of major concern to the agency in relation to the proposed electrical power plant.
(25) “Public Service Commission” or “commission” means the agency created pursuant to chapter 350.
(26) “Regional planning council” means a regional planning council as defined in s. 186.503(4) in the jurisdiction of which the electrical power plant is proposed to be located.
(27) “Right-of-way” means land necessary for the construction and maintenance of a connected associated linear facility, such as a railroad line, pipeline, or transmission line as owned by or proposed to be certified by the applicant. The typical width of the right-of-way shall be identified in the application. The right-of-way shall be located within the certified corridor and shall be identified by the applicant subsequent to certification in documents filed with the department prior to construction.
(28) “Site” means any proposed location within which will be located an electrical power plant’s generating facility and onsite support facilities, or an alteration or addition of electrical generating facilities and onsite support facilities resulting in an increase in generating capacity, including offshore sites within state jurisdiction.
(29) “State comprehensive plan” means that plan set forth in chapter 187.
(30) “Ultimate site capacity” means the maximum gross generating capacity for a site as certified by the board, unless otherwise specified as net generating capacity.
(31) “Water management district” means a water management district, created pursuant to chapter 373, in the jurisdiction of which the electrical power plant is proposed to be located.
History.s. 1, ch. 73-33; s. 1, ch. 76-76; s. 1, ch. 79-76; s. 3, ch. 81-131; s. 14, ch. 86-173; s. 22, ch. 86-186; s. 3, ch. 90-331; s. 6, ch. 93-94; s. 383, ch. 94-356; s. 134, ch. 96-410; s. 20, ch. 2006-230; s. 67, ch. 2008-227.
403.504 Department of Environmental Protection; powers and duties enumerated.The department shall have the following powers and duties in relation to this act:
(1) To adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this act, including rules setting forth environmental precautions to be followed in relation to the location, construction, and operation of electrical power plants.
(2) To prescribe the form and content of the public notices and the notice of intent and the form, content, and necessary supporting documentation and studies to be prepared by the applicant for electrical power plant certification applications.
(3) To receive applications for electrical power plant certifications and to determine the completeness and sufficiency thereof.
(4) To make, or contract for, studies of electrical power plant certification applications.
(5) To administer the processing of applications for electric power plant certifications and to ensure that the applications are processed as expeditiously as possible.
(6) To require such fees as allowed by this act.
(7) To conduct studies and prepare a project analysis under s. 403.507.
(8) To prescribe the means for monitoring the effects arising from the construction and operation of electrical power plants to assure continued compliance with terms of the certification.
(9) To determine whether an alternate corridor proposed for consideration under s. 403.5064(4) is acceptable.
(10) To act as clerk for the siting board.
(11) To administer and manage the terms and conditions of the certification order and supporting documents and records for the life of the electrical power plant.
(12) To issue emergency orders on behalf of the board for facilities licensed under this act.
History.s. 1, ch. 73-33; s. 1, ch. 76-76; s. 1, ch. 77-174; s. 132, ch. 79-190; s. 4, ch. 81-131; s. 35, ch. 81-167; s. 35, ch. 83-55; s. 23, ch. 86-186; s. 4, ch. 90-331; s. 7, ch. 93-94; s. 384, ch. 94-356; s. 102, ch. 98-200; s. 21, ch. 2006-230; s. 68, ch. 2008-227.
403.5055 Application for permits pursuant to s. 403.0885.In processing applications for permits pursuant to s. 403.0885 that are associated with applications for electrical power plant certification:
(1) The procedural requirements set forth in 40 C.F.R. s. 123.25, including public notice, public comments, and public hearings, shall be closely coordinated with the certification process established under this part. In the event of a conflict between the certification process and federally required procedures for NPDES permit issuance, the applicable federal requirements shall control.
(2) If available at the time the department issues its project analysis pursuant to s. 403.507(5), the department shall include in its project analysis copies of the department’s proposed action pursuant to 40 C.F.R. s. 124.6 on any application for a NPDES permit; any corresponding comments received from the United States Environmental Protection Agency, the applicant, or the general public; and the department’s response to those comments.
(3) The department shall not issue or deny the permit pursuant to s. 403.0885 in advance of the issuance of the electrical power plant certification under this part unless required to do so by the provisions of federal law. When possible, any hearing on a permit issued pursuant to s. 403.0885 shall be conducted in conjunction with the certification hearing held pursuant to this act. The department’s actions on an NPDES permit shall be based on the record and recommended order of the certification hearing, if the hearing on the NPDES was conducted in conjunction with the certification hearing, and of any other proceeding held in connection with the application for an NPDES permit, timely public comments received with respect to the application, and the provisions of federal law. The department’s action on an NPDES permit, if issued, shall differ from the actions taken by the siting board regarding the certification order if federal laws and regulations require different action to be taken to ensure compliance with the Clean Water Act, as amended, and implementing regulations. Nothing in this part shall be construed to displace the department’s authority as the final permitting entity under the federally approved state NPDES program. Nothing in this part shall be construed to authorize the issuance of a state NPDES permit which does not conform to the requirements of the federally approved state NPDES program.
History.s. 79, ch. 93-213; s. 22, ch. 2006-230.
403.506 Applicability, thresholds, and certification.
(1) The provisions of this act shall apply to any electrical power plant as defined herein, except that the provisions of this act shall not apply to any electrical power plant of less than 75 megawatts in gross capacity, including its associated facilities, unless the applicant has elected to apply for certification of such electrical power plant under this act. The provisions of this act shall not apply to capacity expansions of 75 megawatts or less, in the aggregate, of an existing exothermic reaction cogeneration electrical generating facility that was exempt from this act when it was originally built; however, this exemption shall not apply if the unit uses oil or natural gas for purposes other than unit startup. No construction of any new electrical power plant or expansion in steam generating capacity as measured by an increase in the maximum electrical generator rating of any existing electrical power plant may be undertaken after October 1, 1973, without first obtaining certification in the manner as herein provided, except that this act shall not apply to any such electrical power plant which is presently operating or under construction or which has, upon the effective date of chapter 73-33, Laws of Florida, applied for a permit or certification under requirements in force prior to the effective date of such act.
(2) Except as provided in the certification, modification of nonnuclear fuels, internal related hardware, including increases in steam turbine efficiency, or operating conditions not in conflict with certification which increase the electrical output of a unit to no greater capacity than the maximum electrical generator rating of the existing generator shall not constitute an alteration or addition to generating capacity which requires certification pursuant to this act.
(3) An electric utility may obtain separate licenses, permits, and approvals for the construction of facilities necessary to construct an electrical power plant without first obtaining certification under this act if the utility intends to locate, license, and construct a proposed or expanded electrical power plant that uses nuclear materials as fuel. Such facilities may include, but are not limited to, access and onsite roads, rail lines, electrical transmission facilities to support construction, and facilities necessary for waterborne delivery of construction materials and project components. This exemption applies to such facilities regardless of whether the facilities are used for operation of the power plant. The applicant shall file with the department a statement that declares that the construction of such facilities is necessary for the timely construction of the proposed electrical power plant and identifies those facilities that the applicant intends to seek licenses for and construct prior to or separate from certification of the project. The facilities may be located within or off the site for the proposed electrical power plant. The filing of an application under this act shall not affect other applications for separate licenses which are pending at the time of filing the application. Furthermore, the filing of an application shall not prevent an electric utility from seeking separate licenses for facilities that are necessary to construct the electrical power plant. Licenses, permits, or approvals issued by any state, regional, or local agency for such facilities shall be incorporated by the department into a final certification upon completion of construction. Any facilities necessary for construction of the electrical power plant shall become part of the certified electrical power plant upon completion of the electrical power plant’s construction. The exemption in this subsection shall not require or authorize agency rulemaking, and any action taken under this subsection shall not be subject to the provisions of chapter 120. This subsection shall be given retroactive effect and shall apply to applications filed after May 1, 2008.
History.s. 1, ch. 73-33; s. 3, ch. 76-76; s. 2, ch. 79-76; s. 5, ch. 81-131; s. 15, ch. 86-173; s. 24, ch. 86-186; s. 5, ch. 90-331; s. 80, ch. 93-213; s. 23, ch. 2006-230; s. 69, ch. 2008-227.
403.5063 Notice of intent to file application.
(1) To expedite the processing of the application which may be filed subsequently, the applicant for a proposed power plant may file a notice of intent to file an application with the department.
(2) The department shall establish, by rule, a procedure by which an applicant, after public notice, may enter into binding written agreements with the department and other affected agencies as to the scope, quantity, and level of information to be provided in the application, as well as the methods to be used in providing such information and the nature of the supporting documents to be included in the application.
History.s. 6, ch. 81-131.
403.5064 Application; schedules.
(1) The formal date of filing of a certification application and commencement of the certification review process shall be when the applicant submits:
(a) Copies of the certification application in a quantity and format as prescribed by rule to the department and other agencies identified in s. 403.507(2)(a).
(b) A statement affirming that the applicant is opting to allow consideration of alternate corridors for an associated transmission line corridor. If alternate corridors are allowed, at the applicant’s option, the portion of the application addressing associated transmission line corridors shall be processed under the schedule set forth in ss. 403.521-403.526, 403.527(4), and 403.5271, including the opportunity for the filing of alternate corridors by third parties; however, if such alternate corridors are filed, the certification hearing shall not be rescheduled as allowed by s. 403.5271(1)(b).
(c) The application fee specified under s. 403.518 to the department.
(2) Within 7 days after the filing of an application, the department shall provide to the applicant and the Division of Administrative Hearings the names and addresses of any additional agencies or persons entitled to notice and copies of the application and any amendments. Copies of the application shall be distributed within 5 days by the applicant to these additional agencies. This distribution shall not be a basis for altering the schedule of dates for the certification process.
(3) Any amendment to the application made prior to certification shall be disposed of as part of the original certification proceeding. Amendment of the application may be considered good cause for alteration of time limits pursuant to s. 403.5095.
(4) Within 7 days after the filing of an application, the department shall prepare a proposed schedule of dates for determination of completeness, submission of statements of issues, submittal of final reports, and other significant dates to be followed during the certification process, including dates for filing notices of appearance to be a party pursuant to s. 403.508(3). If the application includes one or more associated transmission line corridors, at the request of the applicant filed concurrently with the application, the department shall use the application processing schedule set forth in ss. 403.521-403.526, 403.527(4), and 403.5271 for the associated transmission line corridors, including the opportunity for the filing and review of alternate corridors, if a party proposes alternate transmission line corridor routes for consideration no later than 165 days before the scheduled certification hearing. Notwithstanding an applicant’s option for the transmission line corridor portion of its application to be processed under the proposed schedule, only one certification hearing shall be held for the entire plant in accordance with s. 403.508(2). The proposed schedule shall be timely provided by the department to the applicant, the administrative law judge, all agencies identified pursuant to subsection (2), and all parties. Within 7 days after the filing of the proposed schedule, the administrative law judge shall issue an order establishing a schedule for the matters addressed in the department’s proposed schedule and other appropriate matters, if any.
(5) Copies of changes and amendments to the application shall be timely distributed by the applicant to all agencies and parties who have received a copy of the application.
(6) Notice of the filing of the application shall be published in accordance with the requirements of s. 403.5115.
History.s. 6, ch. 90-331; s. 135, ch. 96-410; s. 24, ch. 2006-230; s. 70, ch. 2008-227.
403.5065 Appointment of administrative law judge; powers and duties.
(1) Within 7 days after receipt of an application, the department shall request the Division of Administrative Hearings to designate an administrative law judge to conduct the hearings required by this act. The division director shall designate an administrative law judge within 7 days after receipt of the request from the department. In designating an administrative law judge for this purpose, the division director shall, whenever practicable, assign an administrative law judge who has had prior experience or training in electrical power plant certification proceedings. Upon being advised that an administrative law judge has been appointed, the department shall immediately file a copy of the application and all supporting documents with the designated administrative law judge, who shall docket the application.
(2) The administrative law judge shall have all powers and duties granted to administrative law judges by chapter 120 and by the laws and rules of the department.
History.s. 4, ch. 76-76; s. 1, ch. 77-174; s. 7, ch. 81-131; s. 7, ch. 90-331; s. 136, ch. 96-410; s. 25, ch. 2006-230; s. 71, ch. 2008-227.
403.5066 Determination of completeness.
(1)(a) Within 30 days after the filing of an application, affected agencies shall file a statement with the department containing each agency’s recommendations on the completeness of the application.
(b) Within 40 days after the filing of an application, the department shall file a statement with the Division of Administrative Hearings, with the applicant, and with all parties declaring its position with regard to the completeness of the application. The department’s statement shall be based upon consultation with the affected agencies.
(2) If the department declares the application to be incomplete, the applicant, within 15 days after the filing of the statement by the department, shall file with the Division of Administrative Hearings, with the department, and all parties:
(a) A withdrawal of the application;
(b) A statement agreeing to supply the additional information necessary to make the application complete. Such additional information shall be provided within 30 days after the issuance of the department’s statement on completeness of the application. The time schedules under this act shall not be tolled if the applicant makes the application complete within 30 days after the issuance of the department’s statement on completeness of the application. A subsequent finding by the department that the application remains incomplete, based upon the additional information submitted by the applicant or upon the failure of the applicant to timely submit the additional information, tolls the time schedules under this act until the application is determined complete;
(c) A statement contesting the department’s determination of incompleteness; or
(d) A statement agreeing with the department and requesting additional time beyond 30 days to provide the information necessary to make the application complete. If the applicant exercises this option, the time schedules under this act are tolled until the application is determined complete.
(3)(a) If the applicant contests the determination by the department that an application is incomplete, the administrative law judge shall schedule a hearing on the statement of completeness. The hearing shall be held as expeditiously as possible, but not later than 21 days after the filing of the statement by the department. The administrative law judge shall render a decision within 7 days after the hearing.
(b) Parties to a hearing on the issue of completeness shall include the applicant, the department, and any agency that has jurisdiction over the matter in dispute.
(c) If the administrative law judge determines that the application was not complete, the applicant shall withdraw the application or make such additional submittals as necessary to complete it. The time schedules referencing a complete application under this act shall not commence until the application is determined complete.
(d) If the administrative law judge determines that the application was complete at the time it was declared incomplete, the time schedules referencing a complete application under this act shall commence upon such determination.
(4) If the applicant provides additional information to address the issues identified in the determination of incompleteness, each affected agency may submit to the department, no later than 15 days after the applicant files the additional information, a recommendation on whether the agency believes the application is complete. Within 22 days after receipt of the additional information from the applicant submitted under paragraph (2)(b), paragraph (2)(d), or paragraph (3)(c), the department shall determine whether the additional information supplied by an applicant makes the application complete. If the department finds that the application is still incomplete, the applicant may exercise any of the options specified in subsection (2) as often as is necessary to resolve the dispute.
History.s. 8, ch. 90-331; s. 137, ch. 96-410; s. 26, ch. 2006-230.
403.50663 Informational public meetings.
(1) A local government within whose jurisdiction the power plant is proposed to be sited may hold one informational public meeting in addition to the hearings specifically authorized by this act on any matter associated with the electrical power plant proceeding. Such informational public meetings shall be held by the local government or by the regional planning council if the local government does not hold such meeting within 70 days after the filing of the application. The purpose of an informational public meeting is for the local government or regional planning council to further inform the public about the proposed electrical power plant or associated facilities, obtain comments from the public, and formulate its recommendation with respect to the proposed electrical power plant.
(2) Informational public meetings shall be held solely at the option of each local government or regional planning council if a public meeting is not held by the local government. It is the legislative intent that local governments or regional planning councils attempt to hold such public meetings. Parties to the proceedings under this act shall be encouraged to attend; however, no party other than the applicant and the department shall be required to attend such informational public meetings.
(3) A local government or regional planning council that intends to conduct an informational public meeting must provide notice of the meeting to all parties not less than 5 days prior to the meeting and to the general public in accordance with s. 403.5115(5). The expense for such notice is eligible for reimbursement under s. 403.518(2)(c)1.
(4) The failure to hold an informational public meeting or the procedure used for the informational public meeting is not grounds for the alteration of any time limitation in this act under s. 403.5095 or grounds to deny or condition certification.
History.s. 27, ch. 2006-230; s. 72, ch. 2008-227.
403.50665 Land use consistency.
(1) The applicant shall include in the application a statement on the consistency of the site and any associated facilities that constitute a “development,” as defined in s. 380.04, with existing land use plans and zoning ordinances that were in effect on the date the application was filed and a full description of such consistency. This information shall include an identification of those associated facilities that the applicant believes are exempt from the requirements of land use plans and zoning ordinances under the Community Planning Act provisions of chapter 163 and s. 380.04(3).
(2)(a) Within 45 days after the filing of the application, each local government shall file a determination with the department, the applicant, the administrative law judge, and all parties on the consistency of the site, and any associated facilities that are not exempt from the requirements of land use plans and zoning ordinances under chapter 163 and s. 380.04(3), with existing land use plans and zoning ordinances that were in effect on the date the application was filed, based on the information provided in the application. However, this requirement does not apply to any new electrical generation unit proposed to be constructed and operated on the site of a previously certified electrical power plant or on the site of a power plant that was not previously certified that will be wholly contained within the boundaries of the existing site.
(b) The local government may issue its determination up to 55 days later if the application has been determined incomplete based in whole or in part upon a local government request for additional information on land use and zoning consistency as part of the local government’s statement on completeness of the application submitted pursuant to s. 403.5066(1)(a). Incompleteness of information necessary for a local government to evaluate an application may be claimed by the local government as cause for a statement of inconsistency with existing land use plans and zoning ordinances.
(c) Notice of the consistency determination shall be published in accordance with the requirements of s. 403.5115.
(3)(a) If the local government issues a determination that the proposed site and any nonexempt associated facilities are not consistent or in compliance with local land use plans and zoning ordinances, the applicant may apply to the local government for the necessary local approval to address the inconsistencies identified in the local government’s determination.
(b) If the applicant makes such an application to the local government, the time schedules under this act shall be tolled until the local government issues its revised determination on land use and zoning or the applicant otherwise withdraws its application to the local government.
(c) If the applicant applies to the local government for necessary local land use or zoning approval, the local government shall commence a proceeding to consider the application for land use or zoning approval within 45 days after receipt of the complete request and shall issue a revised determination within 30 days following the conclusion of that local proceeding. The time schedules and notice requirements under this act shall apply to such revised determination.
(4) If any substantially affected person wishes to dispute the local government’s determination, he or she shall file a petition with the designated administrative law judge within 21 days after the publication of notice of the local government’s determination. If a hearing is requested, the provisions of s. 403.508(1) shall apply.
(5) The dates in this section may be altered upon agreement between the applicant, the local government, and the department pursuant to s. 403.5095.
(6) If it is determined by the local government that the proposed site or nonexempt associated facility does conform with existing land use plans and zoning ordinances in effect as of the date of the application and no petition has been filed, the responsible zoning or planning authority shall not thereafter change such land use plans or zoning ordinances so as to foreclose construction and operation of the proposed site or directly associated facilities unless certification is subsequently denied or withdrawn.
(7) The issue of land use and zoning consistency for any proposed alternate intermediate electrical substation which is proposed as part of an alternate electrical transmission line corridor which is accepted by the applicant and the department under s. 403.5271(1)(b) shall be addressed in the supplementary report prepared by the local government on the proposed alternate corridor and shall be considered as an issue at any final certification hearing. If such a proposed alternate intermediate electrical substation is determined not to be consistent with local land use plans and zoning ordinances, then that alternate intermediate electrical substation shall not be certified.
History.s. 28, ch. 2006-230; s. 73, ch. 2008-227; s. 62, ch. 2011-139.
403.507 Preliminary statements of issues, reports, project analyses, and studies.
(1) Each affected agency identified in paragraph (2)(a) shall submit a preliminary statement of issues to the department, the applicant, and all parties no later than 40 days after the certification application has been determined complete. The failure to raise an issue in this statement shall not preclude the issue from being raised in the agency’s report.
(2)(a) No later than 100 days after the certification application has been determined complete, the following agencies shall prepare reports as provided below and shall submit them to the department and the applicant, unless a final order denying the determination of need has been issued under s. 403.519:
1. The Department of Economic Opportunity shall prepare a report containing recommendations which address the impact upon the public of the proposed electrical power plant, based on the degree to which the electrical power plant is consistent with the applicable portions of the state comprehensive plan, emergency management, and other such matters within its jurisdiction. The Department of Economic Opportunity may also comment on the consistency of the proposed electrical power plant with applicable strategic regional policy plans or local comprehensive plans and land development regulations.
2. The water management district shall prepare a report as to matters within its jurisdiction, including but not limited to, the impact of the proposed electrical power plant on water resources, regional water supply planning, and district-owned lands and works.
3. Each local government in whose jurisdiction the proposed electrical power plant is to be located shall prepare a report as to the consistency of the proposed electrical power plant with all applicable local ordinances, regulations, standards, or criteria that apply to the proposed electrical power plant, including any applicable local environmental regulations adopted pursuant to s. 403.182 or by other means.
4. The Fish and Wildlife Conservation Commission shall prepare a report as to matters within its jurisdiction.
5. Each regional planning council shall prepare a report containing recommendations that address the impact upon the public of the proposed electrical power plant, based on the degree to which the electrical power plant is consistent with the applicable provisions of the strategic regional policy plan adopted pursuant to chapter 186 and other matters within its jurisdiction.
6. The Department of Transportation shall address the impact of the proposed electrical power plant on matters within its jurisdiction.
(b) Any other agency, if requested by the department, shall also perform studies or prepare reports as to matters within that agency’s jurisdiction which may potentially be affected by the proposed electrical power plant.
(3) Each report described in subsection (2) shall contain:
(a) A notice of any nonprocedural requirements not specifically listed in the application from which a variance, exemption, exception, or other relief is necessary in order for the proposed electrical power plant to be certified. Failure of such notification by an agency shall be treated as a waiver from nonprocedural requirements of that agency. However, no variance shall be granted from standards or regulations of the department applicable under any federally delegated or approved permit program, except as expressly allowed in such program.
(b) A recommendation for approval or denial of the application.
(c) Any proposed conditions of certification on matters within the jurisdiction of such agency. For each condition proposed by an agency in its report, the agency shall list the specific statute, rule, or ordinance which authorizes the proposed condition.
(d) The agencies shall initiate the activities required by this section no later than 15 days after the application is distributed. The agencies shall keep the applicant and the department informed as to the progress of the studies and any issues raised thereby.
(4)(a) No later than 150 days after the application is filed, the Public Service Commission shall prepare a report as to the present and future need for electrical generating capacity to be supplied by the proposed electrical power plant. The report shall include the commission’s determination pursuant to s. 403.519 and may include the commission’s comments with respect to any other matters within its jurisdiction.
(b) Receipt of an affirmative determination of need by the submittal deadline under paragraph (a) shall be a condition precedent to issuance of the department’s project analysis and conduct of the certification hearing.
(5) The department shall prepare a project analysis, which shall be filed with the designated administrative law judge and served on all parties no later than 130 days after the application is determined complete, and which shall include:
(a) A statement indicating whether the proposed electrical power plant and proposed ultimate site capacity will be in compliance and consistent with matters within the department’s standard jurisdiction, including the rules of the department, as well as whether the proposed electrical power plant and proposed ultimate site capacity will be in compliance with the nonprocedural requirements of the affected agencies.
(b) Copies of the studies and reports required by this section.
(c) The comments received by the department from any other agency or person.
(d) The recommendation of the department as to the disposition of the application, of variances, exemptions, exceptions, or other relief identified by any party, and of any proposed conditions of certification which the department believes should be imposed.
(e) If available, the recommendation of the department regarding the issuance of any license required pursuant to a federally delegated or approved permit program.
(6) Except when good cause is shown, the failure of any agency to submit a preliminary statement of issues or a report, or to submit its preliminary statement of issues or report within the allowed time, shall not be grounds for the alteration of any time limitation in this act. Neither the failure to submit a preliminary statement of issues or a report nor the inadequacy of the preliminary statement of issues or report are grounds to deny or condition certification.
History.s. 1, ch. 73-33; s. 5, ch. 76-76; s. 133, ch. 79-190; s. 8, ch. 81-131; s. 33, ch. 81-169; s. 36, ch. 83-55; s. 25, ch. 86-186; s. 10, ch. 90-331; s. 7, ch. 92-132; s. 8, ch. 93-94; s. 385, ch. 94-356; s. 14, ch. 95-149; s. 139, ch. 96-410; s. 206, ch. 99-245; s. 30, ch. 2006-230; s. 74, ch. 2008-227; s. 287, ch. 2011-142.
403.508 Land use and certification hearings, parties, participants.
(1)(a) Within 5 days after the filing of a petition for a hearing on land use pursuant to s. 403.50665, the designated administrative law judge shall schedule a land use hearing to be conducted in the county of the proposed site or associated facility that is not exempt from the requirements of land use plans and zoning ordinances under chapter 163 and s. 380.04(3), as applicable, as expeditiously as possible but not later than 30 days after the designated administrative law judge’s receipt of the petition. The place of such hearing shall be as close as possible to the proposed site or associated facility. If a petition is filed, the hearing shall be held regardless of the status of the completeness of the application.
(b) Notice of the land use hearing shall be published in accordance with the requirements of s. 403.5115.
(c) The sole issue for determination at the land use hearing shall be whether or not the proposed site or nonexempt associated facility is consistent and in compliance with existing land use plans and zoning ordinances. If the administrative law judge concludes that the proposed site or nonexempt associated facility is not consistent or in compliance with existing land use plans and zoning ordinances, the administrative law judge shall receive at the hearing evidence on, and address in the recommended order any changes to or approvals or variances under, the applicable land use plans or zoning ordinances which will render the proposed site or nonexempt associated facility consistent and in compliance with the local land use plans and zoning ordinances.
(d) The designated administrative law judge’s recommended order shall be issued within 30 days after completion of the hearing and shall be reviewed by the board within 60 days after receipt of the recommended order by the board.
(e) If it is determined by the board that the proposed site or nonexempt associated facility does conform with existing land use plans and zoning ordinances in effect as of the date of the application, or as otherwise provided by this act, the responsible zoning or planning authority shall not thereafter change such land use plans or zoning ordinances so as to foreclose construction and operation of the proposed electrical power plant on the proposed site or associated facilities unless certification is subsequently denied or withdrawn.
(f) If it is determined by the board that the proposed site or nonexempt associated facility does not conform with existing land use plans and zoning ordinances, the board may, if it determines after notice and hearing and upon consideration of the recommended order on land use and zoning issues that it is in the public interest to authorize the use of the land for a site or associated facility, authorize a variance or other necessary approval to the adopted land use plan and zoning ordinances required to render the proposed site or associated facility consistent with local land use plans and zoning ordinances. The board’s action shall not be controlled by any other procedural requirements of law. In the event a variance or other approval is denied by the board, it shall be the responsibility of the applicant to make the necessary application for any approvals determined by the board as required to make the proposed site or associated facility consistent and in compliance with local land use plans and zoning ordinances. No further action may be taken on the complete application until the proposed site or associated facility conforms to the adopted land use plan or zoning ordinances or the board grants relief as provided under this act.
(2)(a) A certification hearing shall be held by the designated administrative law judge no later than 265 days after the application is filed with the department. The certification hearing shall be held at a location in proximity to the proposed site.
(b) Notice of the certification hearing and notice of the deadline for filing of notice of intent to be a party shall be made in accordance with the requirements of s. 403.5115.
(3)(a) Parties to the proceeding shall include:
1. The applicant.
2. The Public Service Commission.
3. The Department of Economic Opportunity.
4. The Fish and Wildlife Conservation Commission.
5. The water management district.
6. The department.
7. The regional planning council.
8. The local government.
9. The Department of Transportation.
(b) Any party listed in paragraph (a) other than the department or the applicant may waive its right to participate in these proceedings. If such listed party fails to file a notice of its intent to be a party on or before the 90th day prior to the certification hearing, such party shall be deemed to have waived its right to be a party.
(c) Notwithstanding the provisions of chapter 120, upon the filing with the administrative law judge of a notice of intent to be a party no later than 75 days after the application is filed, the following shall also be parties to the proceeding:
1. Any agency not listed in paragraph (a) as to matters within its jurisdiction.
2. Any domestic nonprofit corporation or association formed, in whole or in part, to promote conservation or natural beauty; to protect the environment, personal health, or other biological values; to preserve historical sites; to promote consumer interests; to represent labor, commercial, or industrial groups; or to promote comprehensive planning or orderly development of the area in which the proposed electrical power plant is to be located.
(d) Notwithstanding paragraph (e), failure of an agency described in subparagraph (c)1. to file a notice of intent to be a party within the time provided herein shall constitute a waiver of the right of that agency to participate as a party in the proceeding.
(e) Other parties may include any person, including those persons enumerated in paragraph (c) who have failed to timely file a notice of intent to be a party, whose substantial interests are affected and being determined by the proceeding and who timely file a motion to intervene pursuant to chapter 120 and applicable rules. Intervention pursuant to this paragraph may be granted at the discretion of the designated administrative law judge and upon such conditions as he or she may prescribe any time prior to 30 days before the commencement of the certification hearing.
(f) Any agency, including those whose properties or works are being affected pursuant to s. 403.509(5), shall be made a party upon the request of the department or the applicant.
(4)(a) The order of presentation at the certification hearing, unless otherwise changed by the administrative law judge to ensure the orderly presentation of witnesses and evidence, shall be:
1. The applicant.
2. The department.
3. State agencies.
4. Regional agencies, including regional planning councils and water management districts.
5. Local governments.
6. Other parties.
(b) When appropriate, any person may be given an opportunity to present oral or written communications to the designated administrative law judge. If the designated administrative law judge proposes to consider such communications, then all parties shall be given an opportunity to cross-examine or challenge or rebut such communications.
(5) At the conclusion of the certification hearing, the designated administrative law judge shall, after consideration of all evidence of record, submit to the board a recommended order no later than 45 days after the filing of the hearing transcript.
(6)(a) No earlier than 29 days prior to the conduct of the certification hearing, the department or the applicant may request that the administrative law judge cancel the certification hearing and relinquish jurisdiction to the department if all parties to the proceeding stipulate that there are no disputed issues of fact or law to be raised at the certification hearing, and if sufficient time remains for the applicant and the department to publish public notices of the cancellation of the hearing at least 3 days prior to the scheduled date of the hearing.
(b) The administrative law judge shall issue an order granting or denying the request within 5 days after receipt of the request.
(c) If the administrative law judge grants the request, the department and the applicant shall publish notices of the cancellation of the certification hearing, in accordance with s. 403.5115.
(d)1. If the administrative law judge grants the request, the department shall prepare and issue a final order in accordance with s. 403.509(1)(a).
2. Parties may submit proposed recommended orders to the department no later than 10 days after the administrative law judge issues an order relinquishing jurisdiction.
(7) The applicant shall pay those expenses and costs associated with the conduct of the hearings and the recording and transcription of the proceedings.
(8) In issuing permits under the federally approved new source review or prevention of significant deterioration permit program, the department shall observe the procedures specified under the federally approved state implementation plan, including public notice, public comment, public hearing, and notice of applications and amendments to federal, state, and local agencies, to assure that all such permits issued in coordination with the certification of a power plant under this act are federally enforceable and are issued after opportunity for informed public participation regarding the terms and conditions thereof. When possible, any hearing on a federally approved or delegated program permit such as new source review, prevention of significant deterioration permit, or NPDES permit shall be conducted in conjunction with the certification hearing held under this act. It is the intent of the Legislature that the review, processing, and issuance of such federally delegated or approved permits be closely coordinated with the certification process established under this part. In the event of a conflict between the certification process and federally required procedures, the applicable federal requirements shall control.
History.s. 1, ch. 73-33; s. 6, ch. 76-76; s. 1, ch. 77-174; s. 134, ch. 79-190; s. 9, ch. 81-131; s. 36, ch. 81-167; s. 37, ch. 83-55; s. 26, ch. 86-186; s. 11, ch. 90-331; s. 9, ch. 93-94; s. 386, ch. 94-356; s. 140, ch. 96-410; s. 1008, ch. 97-103; s. 207, ch. 99-245; s. 31, ch. 2006-230; s. 75, ch. 2008-227; s. 288, ch. 2011-142.
403.509 Final disposition of application.
(1)(a) If the administrative law judge has granted a request to cancel the certification hearing and has relinquished jurisdiction to the department under the provisions of s. 403.508(6), within 40 days thereafter, the secretary of the department shall act upon the application by written order in accordance with the terms of this act and the stipulation of the parties in requesting cancellation of the certification hearing.
(b) If the administrative law judge has not granted a request to cancel the certification hearing under the provisions of s. 403.508(6), within 60 days after receipt of the designated administrative law judge’s recommended order, the board shall act upon the application by written order, approving or denying certification, in accordance with the terms of this act, and stating the reasons for issuance or denial. If certification is denied, the board shall set forth in writing the action the applicant would have to take to secure the board’s approval of the application.
(2) The issues that may be raised in any hearing before the board shall be limited to those matters raised in the certification proceeding before the administrative law judge or raised in the recommended order. All parties, or their representatives, or persons who appear before the board shall be subject to the provisions of s. 120.66.
(3) In determining whether an application should be approved in whole, approved with modifications or conditions, or denied, the board, or secretary when applicable, shall consider whether, and the extent to which, the location, construction, and operation of the electrical power plant will:
(a) Provide reasonable assurance that operational safeguards are technically sufficient for the public welfare and protection.
(b) Comply with applicable nonprocedural requirements of agencies.
(c) Be consistent with applicable local government comprehensive plans and land development regulations.
(d) Meet the electrical energy needs of the state in an orderly, reliable, and timely fashion.
(e) Effect a reasonable balance between the need for the facility as established pursuant to s. 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility.
(f) Minimize, through the use of reasonable and available methods, the adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life.
(g) Serve and protect the broad interests of the public.
(4)(a) Any transmission line corridor certified by the board, or secretary if applicable, shall meet the criteria of this section. When more than one transmission line corridor is proper for certification under s. 403.503(11) and meets the criteria of this section, the board, or secretary if applicable, shall certify the transmission line corridor that has the least adverse impact regarding the criteria in subsection (3), including costs.
(b) If the board, or secretary if applicable, finds that an alternate corridor rejected pursuant to s. 403.5271 as incorporated by reference in s. 403.5064(1)(b) meets the criteria of subsection (3) and has the least adverse impact regarding the criteria in subsection (3), the board, or secretary if applicable, shall deny certification or shall allow the applicant to submit an amended application to include the corridor.
(c) If the board, or secretary if applicable, finds that two or more of the corridors that comply with subsection (3) have the least adverse impacts regarding the criteria in subsection (3), including costs, and that the corridors are substantially equal in adverse impacts regarding the criteria in subsection (3), including costs, the board, or secretary if applicable, shall certify the corridor preferred by the applicant if the corridor is one proper for certification under s. 403.503(11).
(5) The department’s action on a federally required new source review or prevention of significant deterioration permit shall differ from the actions taken by the siting board regarding the certification if the federally approved state implementation plan requires such a different action to be taken by the department. Nothing in this part shall be construed to displace the department’s authority as the final permitting entity under the federally approved permit program. Nothing in this part shall be construed to authorize the issuance of a new source review or prevention of significant deterioration permit which does not conform to the requirements of the federally approved state implementation plan.
(6) For certifications issued by the board in regard to the properties and works of any agency which is a party to the certification hearing, the board shall have the authority to decide issues relating to the use, the connection thereto, or the crossing thereof, for the electrical power plant and to direct any such agency to execute, within 30 days after the entry of certification, the necessary license or easement for such use, connection, or crossing, subject only to the conditions set forth in such certification. For certifications issued by the department in regard to the properties and works of any agency that is a party to the proceeding, any stipulation filed pursuant to s. 403.508(6)(a) must include a stipulation regarding any issues relating to the use, the connection thereto, or the crossing thereof, for the electrical power plant. Any agency stipulating to the use of, connection to, or crossing of its property must agree to execute, within 30 days after the entry of certification, the necessary license or easement for such use, connection, or crossing, subject only to the conditions set forth in such certification.
(7) The issuance or denial of the certification by the board or secretary of the department shall be the final administrative action required as to that application.
History.s. 1, ch. 73-33; s. 7, ch. 76-76; s. 141, ch. 77-104; s. 27, ch. 86-186; s. 12, ch. 90-331; s. 8, ch. 92-132; s. 10, ch. 93-94; s. 4, ch. 94-321; s. 141, ch. 96-410; s. 32, ch. 2006-230; s. 76, ch. 2008-227.
403.5095 Alteration of time limits.Any time limitation in this act may be altered by the designated administrative law judge upon stipulation between the department and the applicant, unless objected to by any party within 5 days after notice, or for good cause shown by any party.
History.s. 8, ch. 76-76; s. 13, ch. 90-331; s. 142, ch. 96-410.
403.510 Superseded laws, regulations, and certification power.
(1) If any provision of this act is in conflict with any other provision, limitation, or restriction under any law, rule, regulation, or ordinance of this state or any political subdivision, municipality, or agency, this act shall govern and control, and such law, rule, regulation, or ordinance shall be deemed superseded for the purposes of this act.
(2) The state hereby preempts the regulation and certification of electrical power plant sites and electrical power plants as defined in this act.
(3) The board shall have the power to adopt reasonable procedural rules to carry out its duties under this act and to give effect to the legislative intent that this act is to provide an efficient, simplified, centrally coordinated, one-stop licensing process.
History.s. 1, ch. 73-33; s. 9, ch. 76-76; s. 14, ch. 90-331.
403.511 Effect of certification.
(1) Subject to the conditions set forth therein, any certification shall constitute the sole license of the state and any agency as to the approval of the location of the site and any associated facility and the construction and operation of the proposed electrical power plant, except for the issuance of department licenses required under any federally delegated or approved permit program and except as otherwise provided in subsection (4).
(2)(a) The certification shall authorize the licensee named therein to construct and operate the proposed electrical power plant, subject only to the conditions of certification set forth in such certification, and except for the issuance of department licenses or permits required under any federally delegated or approved permit program.
(b)1. Except as provided in subsection (4), the certification may include conditions which constitute variances, exemptions, or exceptions from nonprocedural requirements of the department or any agency which were expressly considered during the proceeding, including, but not limited to, any site specific criteria, standards, or limitations under local land use and zoning approvals which affect the proposed electrical power plant or its site, unless waived by the agency and which otherwise would be applicable to the construction and operation of the proposed electrical power plant.
2. No variance, exemption, exception, or other relief shall be granted from a state statute or rule for the protection of endangered or threatened species, aquatic preserves, Outstanding National Resource Waters, or Outstanding Florida Waters or for the disposal of hazardous waste, except to the extent authorized by the applicable statute or rule or except upon a finding in the certification order that the public interests set forth in s. 403.509(3) in certifying the electrical power plant at the site proposed by the applicant overrides the public interest protected by the statute or rule from which relief is sought.
(3) The certification and any order on land use and zoning issued under this act shall be in lieu of any license, permit, certificate, or similar document required by any state, regional, or local agency pursuant to, but not limited to, chapter 125, chapter 161, chapter 163, chapter 166, chapter 186, chapter 253, chapter 298, chapter 373, chapter 376, chapter 379, chapter 380, chapter 381, chapter 387, chapter 403, except for permits issued pursuant to any federally delegated or approved permit program and except as provided in chapter 404 or the Florida Transportation Code, or 33 U.S.C. s. 1341.
(4) This act shall not affect in any way the ratemaking powers of the Public Service Commission under chapter 366; nor shall this act in any way affect the right of any local government to charge appropriate fees or require that construction be in compliance with applicable building construction codes.
(5)(a) An electrical power plant certified pursuant to this act shall comply with rules adopted by the department subsequent to the issuance of the certification which prescribe new or stricter criteria, to the extent that the rules are applicable to electrical power plants. Except when express variances, exceptions, exemptions, or other relief have been granted, subsequently adopted rules which prescribe new or stricter criteria shall operate as automatic modifications to certifications.
(b) Upon written notification to the department, any holder of a certification issued pursuant to this act may choose to operate the certified electrical power plant in compliance with any rule subsequently adopted by the department which prescribes criteria more lenient than the criteria required by the terms and conditions in the certification which are not site-specific.
(c) No term or condition of certification shall be interpreted to preclude the postcertification exercise by any party of whatever procedural rights it may have under chapter 120, including those related to rulemaking proceedings. This subsection shall apply to previously issued certifications.
(6) No term or condition of an electrical power plant certification shall be interpreted to supersede or control the provisions of a final operation permit for a major source of air pollution issued by the department pursuant to s. 403.0872 to a facility certified under this part.
(7) Pursuant to s. 380.23, electrical power plants are subject to the federal coastal consistency review program. Issuance of certification shall constitute the state’s certification of coastal zone consistency.
History.s. 1, ch. 73-33; s. 2, ch. 74-170; s. 10, ch. 76-76; s. 1, ch. 77-174; s. 83, ch. 79-65; s. 28, ch. 86-186; s. 15, ch. 90-331; s. 11, ch. 93-94; s. 81, ch. 93-213; s. 33, ch. 2006-230; s. 77, ch. 2008-227; s. 48, ch. 2009-21.
403.5112 Filing of notice of certified corridor route.
(1) Within 60 days after certification of an associated linear facility pursuant to this act, the applicant shall file, in accordance with s. 28.222, with the department and the clerk of the circuit court for each county through which the corridor will pass, a notice of the certified route.
(2) The notice shall consist of maps or aerial photographs in the scale of 1:24,000 which clearly show the location of the certified route and shall state that the certification of the corridor will result in the acquisition of rights-of-way within the corridor. Each clerk shall record the filing in the official record of the county for the duration of the certification or until such time as the applicant certifies to the department and the clerk that all lands required for the transmission line rights-of-way within the corridor have been acquired within such county, whichever is sooner.
History.s. 34, ch. 2006-230; s. 78, ch. 2008-227.
403.5113 Postcertification amendments and review.
(1) POSTCERTIFICATION AMENDMENTS.
(a) If, subsequent to certification by the board, a licensee proposes any material change to the application and revisions or amendments thereto, as certified, the licensee shall submit a written request for amendment and a description of the proposed change to the application to the department. Within 30 days after the receipt of the request for the amendment, the department shall determine whether the proposed change to the application requires a modification of the conditions of certification.
(b) If the department concludes that the change would not require a modification of the conditions of certification, the department shall provide written notification of the approval of the proposed amendment to the licensee, all agencies, and all other parties.
(c) If the department concludes that the change would require a modification of the conditions of certification, the department shall provide written notification to the licensee that the proposed change to the application requires a request for modification pursuant to s. 403.516.
(2) POSTCERTIFICATION REVIEW.Postcertification submittals filed by the licensee with one or more agencies are for the purpose of monitoring for compliance with the issued certification and must be reviewed by the agencies on an expedited and priority basis because each facility certified under this act is a critical infrastructure facility. In no event shall a postcertification review be completed in more than 90 days after complete information is submitted to the reviewing agencies.
History.s. 35, ch. 2006-230; s. 79, ch. 2008-227.
403.5115 Public notice.
(1) The following notices are to be published by the applicant for all applications:
(a) Notice of the filing of a notice of intent under s. 403.5063, which shall be published within 21 days after the filing of the notice. The notice shall be published as specified by subsection (2), except that the newspaper notice shall be one-fourth page in size in a standard size newspaper or one-half page in size in a tabloid size newspaper.
(b) Notice of filing of the application, which shall include a description of the proceedings required by this act, within 21 days after the date of the application filing. Such notice shall give notice of the provisions of s. 403.511(1) and (2).
(c) If applicable, notice of the land use determination made pursuant to s. 403.50665(2) within 21 days after the deadline for the filing of the determination.
(d) If applicable, notice of the land use hearing, which shall be published as specified in subsection (2), no later than 15 days before the hearing.
(e) Notice of the certification hearing and notice of the deadline for filing notice of intent to be a party, which shall be published as specified in subsection (2), at least 65 days before the date set for the certification hearing. If one or more alternate corridors have been accepted for consideration, the notice of the certification hearing shall include a map of all corridors proposed for certification.
(f) Notice of revised deadline for filing alternate corridors if the certification hearing is rescheduled to a date other than as published in the notice of filing of the application. This notice shall be published at least 185 days before the rescheduled certification hearing and as specified in subsection (2), except no map is required and the size of the notice shall be no smaller than 6 square inches.
(g) Notice of the cancellation of the certification hearing, if applicable, no later than 3 days before the date of the originally scheduled certification hearing. The newspaper notice shall be one-fourth page in size in a standard size newspaper or one-half page in size in a tabloid size newspaper.
(h) Notice of modification when required by the department, based on whether the requested modification of certification will significantly increase impacts to the environment or the public. Such notice shall be published as specified under subsection (2):
1. Within 21 days after receipt of a request for modification. The newspaper notice shall be of a size as directed by the department commensurate with the scope of the modification.
2. If a hearing is to be conducted in response to the request for modification, then notice shall be published no later than 30 days before the hearing.
(2) Notices provided by the applicant shall be published in newspapers of general circulation within the county or counties in which the proposed electrical power plant will be located. The newspaper notices, unless otherwise specified, shall be at least one-half page in size in a standard size newspaper or a full page in a tabloid size newspaper. These notices shall include a map generally depicting the project and all associated facilities corridors. A newspaper of general circulation shall be the newspaper which has the largest daily circulation in that county and has its principal office in that county. If the newspaper with the largest daily circulation has its principal office outside the county, the notices shall appear in both the newspaper having the largest circulation in that county and in a newspaper authorized to publish legal notices in that county.
(3) All notices published by the applicant shall be paid for by the applicant and shall be in addition to the application fee.
(4) The department shall arrange for publication of the following notices in the manner specified by chapter 120 and provide copies of those notices to any persons who have requested to be placed on the departmental mailing list for this purpose:
(a) Notice of the filing of the notice of intent within 15 days after receipt of the notice.
(b) Notice of the filing of the application, no later than 21 days after the application filing.
(c) Notice of the land use determination made pursuant to s. 403.50665(2) within 21 days after the determination is filed.
(d) Notice of the land use hearing before the administrative law judge, if applicable, no later than 15 days before the hearing.
(e) Notice of the land use hearing before the board, if applicable.
(f) Notice of the certification hearing at least 45 days before the date set for the certification hearing.
(g) Notice of the revised deadline for filing alternate corridors if the certification hearing is rescheduled to a date other than as published in the notice of filing of the application. This notice shall be published at least 185 days before the rescheduled certification hearing.
(h) Notice of the cancellation of the certification hearing, if applicable, no later than 3 days prior to the date of the originally scheduled certification hearing.
(i) Notice of the hearing before the board, if applicable.
(j) Notice of stipulations, proposed agency action, or petitions for modification.
(5) A local government or regional planning council that proposes to conduct an informational public meeting pursuant to s. 403.50663 must publish notice of the meeting in a newspaper of general circulation within the county or counties in which the proposed electrical power plant will be located no later than 7 days prior to the meeting. A newspaper of general circulation shall be the newspaper that has the largest daily circulation in that county and has its principal office in that county. If the newspaper with the largest daily circulation has its principal office outside the county, the notices shall appear in both the newspaper having the largest circulation in that county and in a newspaper authorized to publish legal notices in that county.
(6)(a) A good faith effort shall be made by the applicant to provide direct written notice of the filing of an application for certification by United States mail or hand delivery no later than 45 days after filing of the application to all local landowners whose property, as noted in the most recent local government tax records, and residences are located within the following distances of the proposed project:
1. Three miles of the proposed main site boundaries of the proposed electrical power plant.
2. One-quarter mile for a transmission line corridor that only includes a transmission line as defined by s. 403.522(22).
3. One-quarter mile for all other linear associated facilities extending away from the main site boundary except for a transmission line corridor that includes a transmission line that operates below those defined by s. 403.522(22).
(b) No later than 60 days from the filing of an application for certification, the applicant shall file a list with the department’s Siting Coordination Office of landowners and residences that were notified.
(7)(a) A good faith effort shall be made by the proponent of an alternate corridor that includes a transmission line, as defined by s. 403.522(22), to provide direct written notice of the filing of an alternate corridor for certification by United States mail or hand delivery of the filing no later than 30 days after filing of the alternate corridor to all local landowners whose property, as noted in the most recent local government tax records, and residences, are located within one-quarter mile of the proposed boundaries of a transmission line corridor that includes a transmission line as defined by s. 403.522(22).
(b) No later than 45 days from the filing of an alternate corridor for certification, the proponent of an alternate corridor shall file a list with the department’s Siting Coordination Office of landowners and residences that were notified.
History.s. 16, ch. 90-331; s. 12, ch. 93-94; s. 36, ch. 2006-230; s. 80, ch. 2008-227; s. 49, ch. 2009-21.
403.5116 County and municipal authority unaffected by ch. 75-22.Except as provided in ss. 403.510 and 403.511, nothing in chapter 75-22, Laws of Florida, shall be construed to have altered the authority of county and municipal governments as provided by law.
History.s. 22, ch. 75-22; s. 17, ch. 90-331.
Note.Former s. 403.5111.
403.512 Revocation or suspension of certification.Any certification may be revoked or suspended:
(1) For any material false statement in the application or in the supplemental or additional statements of fact or studies required of the applicant when a true answer would have warranted the board’s refusal to recommend a certification in the first instance.
(2) For failure to comply with the terms or conditions of the certification.
(3) For violation of the provisions of this act or regulations or orders issued hereunder.
History.s. 1, ch. 73-33; s. 11, ch. 76-76; s. 18, ch. 90-331.
403.513 Review.Proceedings under this act shall be subject to judicial review as provided in chapter 120. When possible, separate appeals of the certification order issued by the board and of any department permit issued pursuant to a federally delegated or approved permit program may be consolidated for purposes of judicial review.
History.s. 1, ch. 73-33; s. 12, ch. 76-76; s. 29, ch. 86-186; s. 19, ch. 90-331; s. 37, ch. 2006-230.
403.514 Enforcement of compliance.Failure to obtain a certification, or to comply with the conditions thereof, or to comply with this act shall constitute a violation of chapter 403.
History.s. 1, ch. 73-33; s. 12, ch. 76-76; s. 20, ch. 90-331.
403.515 Availability of information.The department shall make available for public inspection and copying during regular office hours, at the expense of any person requesting copies, any information filed or submitted pursuant to this act.
History.s. 1, ch. 73-33.
403.516 Modification of certification.
(1) A certification may be modified after issuance in any one of the following ways:
(a) The board may delegate to the department the authority to modify specific conditions in the certification.
(b)1. The department may modify specific conditions of a certification which are inconsistent with the terms of any federally delegated or approved permit for the certified electrical power plant.
2. Such modification may be made without further notice if the matter has been previously noticed under the requirements for any federally delegated or approved permit program.
(c) The licensee may file a petition for modification with the department, or the department may initiate the modification upon its own initiative.
1. A petition for modification must set forth:
a. The proposed modification.
b. The factual reasons asserted for the modification.
c. The anticipated environmental effects of the proposed modification.
2. The department may modify the terms and conditions of the certification if no party to the certification hearing objects in writing to such modification within 45 days after notice by mail to such party’s last address of record, and if no other person whose substantial interests will be affected by the modification objects in writing within 30 days after issuance of public notice.
3. If objections are raised or the department denies the request, the applicant or department may file a request for a hearing on the modification with the department. Such request shall be handled pursuant to chapter 120.
4. Requests referred to the Division of Administrative Hearings shall be disposed of in the same manner as an application, but with time periods established by the administrative law judge commensurate with the significance of the modification requested.
(d) As required by s. 403.511(5).
(2) Any agreement or modification under this section must be in accordance with the terms of this act. No modification to a certification shall be granted that constitutes a variance from standards or regulations of the department applicable under any federally delegated or approved permit program, except as expressly allowed in such program.
History.s. 13, ch. 76-76; s. 10, ch. 81-131; s. 30, ch. 86-186; s. 21, ch. 90-331; s. 9, ch. 92-132; s. 143, ch. 96-410; s. 38, ch. 2006-230; s. 81, ch. 2008-227.
403.517 Supplemental applications for sites certified for ultimate site capacity.
(1)(a) Supplemental applications may be submitted for certification of the construction and operation of electrical power plants to be located at sites which have been previously certified for an ultimate site capacity pursuant to this act. Supplemental applications shall be limited to electrical power plants using the fuel type previously certified for that site. Such applications shall include all new associated facilities that support the construction and operation of the electrical power plant.
(b) The review shall use the same procedural steps and notices as for an initial application.
(c) The time limits for the processing of a complete supplemental application shall be designated by the department commensurate with the scope of the supplemental application, but shall not exceed any time limitation governing the review of initial applications for certification pursuant to this act, it being the legislative intent to provide shorter time limitations for the processing of supplemental applications for electrical power plants to be constructed and operated at sites which have been previously certified for an ultimate site capacity.
(d) Any time limitation in this section or in rules adopted pursuant to this section may be altered pursuant to s. 403.5095.
(2) The land use and zoning consistency determination of s. 403.50665 shall not be applicable to the processing of supplemental applications pursuant to this section so long as:
(a) The previously certified ultimate site capacity is not exceeded; and
(b) The lands required for the construction or operation of the electrical power plant which is the subject of the supplemental application are within the boundaries of the previously certified site.
History.s. 14, ch. 76-76; s. 11, ch. 81-131; s. 34, ch. 81-169; s. 38, ch. 83-55; s. 22, ch. 90-331; s. 144, ch. 96-410; s. 39, ch. 2006-230; s. 82, ch. 2008-227.
403.5175 Existing electrical power plant site certification.
(1) An electric utility that owns or operates an existing electrical power plant as defined in s. 403.503(14) may apply for certification of an existing power plant and its site in order to obtain all agency licenses necessary to ensure compliance with federal or state environmental laws and regulation using the centrally coordinated, one-stop licensing process established by this part. An application for certification under this section must be in the form prescribed by department rule. Applications must be reviewed and processed using the same procedural steps and notices as for an application for a new facility, except that a determination of need by the Public Service Commission is not required.
(2) An application for certification under this section must include:
(a) A description of the site and existing power plant installations and associated facilities;
(b) A description of all proposed changes or alterations to the site and all new associated facilities that are the subject of the application;
(c) A description of the environmental and other impacts caused by the existing utilization of the site and associated facilities, and the operation of the electrical power plant that is the subject of the application, and of the environmental and other benefits, if any, to be realized as a result of the proposed changes or alterations if certification is approved and such other information as is necessary for the reviewing agencies to evaluate the proposed changes and the expected impacts;
(d) The justification for the proposed changes or alterations;
(e) Copies of all existing permits, licenses, and compliance plans authorizing utilization of the site and associated facilities or operation of the electrical power plant that is the subject of the application.
(3) The land use and zoning determination requirements of s. 403.50665 do not apply to an application under this section if the applicant does not propose to expand the boundaries of the existing site or to add additional offsite associated facilities that are not exempt from the provisions of s. 403.50665. If the applicant proposes to expand the boundaries of the existing site or to add additional offsite associated facilities that are not exempt from the provisions of s. 403.50665 to accommodate portions of the electrical generating facility or associated facilities, a land use and zoning determination shall be made as specified in s. 403.50665; provided, however, that the sole issue for determination is whether the proposed site expansion or additional nonexempt associated facilities are consistent and in compliance with the existing land use plans and zoning ordinances.
(4) In considering whether an application submitted under this section should be approved in whole, approved with appropriate conditions, or denied, the board shall consider whether, and to the extent to which the proposed changes to the electrical power plant and its continued operation under certification will:
(a) Comply with the provisions of s. 403.509(3).
(b) Result in environmental or other benefits compared to current utilization of the site and operations of the electrical power plant if the proposed changes or alterations are undertaken.
(5) An applicant’s failure to receive approval for certification of an existing site or an electrical power plant under this section is without prejudice to continued operation of the electrical power plant or site under existing agency licenses.
History.s. 10, ch. 92-132; s. 40, ch. 2006-230; s. 82, ch. 2007-5; s. 83, ch. 2008-227.
403.518 Fees; disposition.The department shall charge the applicant the following fees, as appropriate, which, unless otherwise specified, shall be paid into the Florida Permit Fee Trust Fund:
(1) A fee for a notice of intent pursuant to s. 403.5063, in the amount of $2,500, to be submitted to the department at the time of filing of a notice of intent. The notice-of-intent fee shall be used and disbursed in the same manner as the application fee.
(2) An application fee, which shall not exceed $200,000. The fee shall be fixed by rule on a sliding scale related to the size, type, ultimate site capacity, or increase in electrical generating capacity proposed by the application.
(a) Sixty percent of the fee shall go to the department to cover any costs associated with coordinating the review and acting upon the application, to cover any field services associated with monitoring construction and operation of the facility, and to cover the costs of the public notices published by the department.
(b) The following percentages shall be transferred to the Operating Trust Fund of the Division of Administrative Hearings of the Department of Management Services:
1. Five percent to compensate expenses from the initial exercise of duties associated with the filing of an application.
2. An additional 5 percent if a land use hearing is held pursuant to s. 403.508.
3. An additional 10 percent if a certification hearing is held pursuant to s. 403.508.
(c)1. Upon written request with proper itemized accounting within 90 days after final agency action by the board or department or withdrawal of the application, the agencies that prepared reports pursuant to s. 403.507 or participated in a hearing pursuant to s. 403.508 may submit a written request to the department for reimbursement of expenses incurred during the certification proceedings. The request shall contain an accounting of expenses incurred which may include time spent reviewing the application, preparation of any studies required of the agencies by this act, agency travel and per diem to attend any hearing held pursuant to this act, and for any local government’s or regional planning council’s provision of notice of public meetings required as a result of the application for certification. The department shall review the request and verify that the expenses are valid. Valid expenses shall be reimbursed; however, in the event the amount of funds available for reimbursement is insufficient to provide for full compensation to the agencies requesting reimbursement, reimbursement shall be on a prorated basis.
2. If the application review is held in abeyance for more than 1 year, the agencies may submit a request for reimbursement. This time period shall be measured from the date the applicant has provided written notification to the department that it desires to have the application review process placed on hold. The fee disbursement shall be processed in accordance with subparagraph 1.
(d) If any sums are remaining, the department shall retain them for its use in the same manner as is otherwise authorized by this act; provided, however, that if the certification application is withdrawn, the remaining sums shall be refunded to the applicant within 90 days after the submittal of the written notification of withdrawal.
(3)(a) A certification modification fee, which shall not exceed $30,000. The department shall establish rules for determining such a fee based on the number of agencies involved in the review, equipment redesign, change in site size, type, increase in generating capacity proposed, or change in an associated facility location.
(b) The fee shall be submitted to the department with a petition for modification pursuant to s. 403.516. This fee shall be established, disbursed, and processed in the same manner as the application fee in subsection (2), except that the Division of Administrative Hearings shall not receive a portion of the fee unless the petition for certification modification is referred to the Division of Administrative Hearings for hearing. If the petition is so referred, only $10,000 of the fee shall be transferred to the Operating Trust Fund of the Division of Administrative Hearings of the Department of Management Services.
(4) A supplemental application fee, not to exceed $75,000, to cover all reasonable expenses and costs of the review, processing, and proceedings of a supplemental application. This fee shall be established, disbursed, and processed in the same manner as the certification application fee in subsection (2).
(5) An existing certification application fee, not to exceed $200,000, to cover all reasonable costs and expenses of the review processing and proceedings for certification of an existing power plant site under s. 403.5175. This fee must be established, disbursed, and processed in the same manner as the certification application fee in subsection (2).
(6) An application fee for an alternate corridor filed pursuant to s. 403.5064(4). The application fee shall be $750 per mile for each mile of the alternate corridor located within an existing electric transmission line right-of-way or within an existing right-of-way for a road, highway, railroad, or other aboveground linear facility, or $1,000 per mile for each mile of an electric transmission line corridor proposed to be located outside the existing right-of-way.
History.s. 23, ch. 90-331; s. 11, ch. 92-132; s. 13, ch. 93-94; s. 387, ch. 94-356; s. 65, ch. 96-321; s. 208, ch. 99-245; s. 29, ch. 2000-153; s. 13, ch. 2006-79; s. 41, ch. 2006-230; s. 84, ch. 2008-227.
403.5185 Law applicable to applications processed under ss. 403.501-403.518.Any application for electrical power plant certification filed pursuant to ss. 403.501-403.518 shall be processed under the provisions of the law applicable at the time the application was filed, except that the provisions relating to cancellation of the certification hearing under s. 403.508(6), the provisions relating to the final disposition of the application and issuance of the written order by the secretary under s. 403.509(1)(a), and notice of the cancellation of the certification hearing under s. 403.5115 may apply to any application for electrical power plant certification.
History.s. 42, ch. 2006-230.
403.519 Exclusive forum for determination of need.
(1) On request by an applicant or on its own motion, the commission shall begin a proceeding to determine the need for an electrical power plant subject to the Florida Electrical Power Plant Siting Act.
(2) The applicant shall publish a notice of the proceeding in a newspaper of general circulation in each county in which the proposed electrical power plant will be located. The notice shall be at least one-quarter of a page and published at least 21 days prior to the scheduled date for the proceeding. The commission shall publish notice of the proceeding in the manner specified by chapter 120 at least 21 days prior to the scheduled date for the proceeding.
(3) The commission shall be the sole forum for the determination of this matter, which accordingly shall not be raised in any other forum or in the review of proceedings in such other forum. In making its determination, the commission shall take into account the need for electric system reliability and integrity, the need for adequate electricity at a reasonable cost, the need for fuel diversity and supply reliability, whether the proposed plant is the most cost-effective alternative available, and whether renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available. The commission shall also expressly consider the conservation measures taken by or reasonably available to the applicant or its members which might mitigate the need for the proposed plant and other matters within its jurisdiction which it deems relevant. The commission’s determination of need for an electrical power plant shall create a presumption of public need and necessity and shall serve as the commission’s report required by s. 403.507(4). An order entered pursuant to this section constitutes final agency action.
(4) In making its determination on a proposed electrical power plant using nuclear materials or synthesis gas produced by integrated gasification combined cycle power plant as fuel, the commission shall hold a hearing within 90 days after the filing of the petition to determine need and shall issue an order granting or denying the petition within 135 days after the date of the filing of the petition. The commission shall be the sole forum for the determination of this matter and the issues addressed in the petition, which accordingly shall not be reviewed in any other forum, or in the review of proceedings in such other forum. In making its determination to either grant or deny the petition, the commission shall consider the need for electric system reliability and integrity, including fuel diversity, the need for base-load generating capacity, the need for adequate electricity at a reasonable cost, and whether renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available.
(a) The applicant’s petition shall include:
1. A description of the need for the generation capacity.
2. A description of how the proposed nuclear or integrated gasification combined cycle power plant will enhance the reliability of electric power production within the state by improving the balance of power plant fuel diversity and reducing Florida’s dependence on fuel oil and natural gas.
3. A description of and a nonbinding estimate of the cost of the nuclear or integrated gasification combined cycle power plant, including any costs associated with new, expanded, or relocated electrical transmission lines or facilities of any size that are necessary to serve the nuclear power plant.
4. The annualized base revenue requirement for the first 12 months of operation of the nuclear or integrated gasification combined cycle power plant.
5. Information on whether there were any discussions with any electric utilities regarding ownership of a portion of the nuclear or integrated gasification combined cycle power plant by such electric utilities.
(b) In making its determination, the commission shall take into account matters within its jurisdiction, which it deems relevant, including whether the nuclear or integrated gasification combined cycle power plant will:
1. Provide needed base-load capacity.
2. Enhance the reliability of electric power production within the state by improving the balance of power plant fuel diversity and reducing Florida’s dependence on fuel oil and natural gas.
3. Provide the most cost-effective source of power, taking into account the need to improve the balance of fuel diversity, reduce Florida’s dependence on fuel oil and natural gas, reduce air emission compliance costs, and contribute to the long-term stability and reliability of the electric grid.
(c) No provision of rule 25-22.082, Florida Administrative Code, shall be applicable to a nuclear or integrated gasification combined cycle power plant sited under this act, including provisions for cost recovery, and an applicant shall not otherwise be required to secure competitive proposals for power supply prior to making application under this act or receiving a determination of need from the commission.
(d) The commission’s determination of need for a nuclear or integrated gasification combined cycle power plant shall create a presumption of public need and necessity and shall serve as the commission’s report required by s. 403.507(4)(a). An order entered pursuant to this section constitutes final agency action. Any petition for reconsideration of a final order on a petition for need determination shall be filed within 5 days after the date of such order. The commission’s final order, including any order on reconsideration, shall be reviewable on appeal in the Florida Supreme Court. Inasmuch as delay in the determination of need will delay siting of a nuclear or integrated gasification combined cycle power plant or diminish the opportunity for savings to customers under the federal Energy Policy Act of 2005, the Supreme Court shall proceed to hear and determine the action as expeditiously as practicable and give the action precedence over matters not accorded similar precedence by law.
(e) After a petition for determination of need for a nuclear or integrated gasification combined cycle power plant has been granted, the right of a utility to recover any costs incurred prior to commercial operation, including, but not limited to, costs associated with the siting, design, licensing, or construction of the plant and new, expanded, or relocated electrical transmission lines or facilities of any size that are necessary to serve the nuclear power plant, shall not be subject to challenge unless and only to the extent the commission finds, based on a preponderance of the evidence adduced at a hearing before the commission under s. 120.57, that certain costs were imprudently incurred. Proceeding with the construction of the nuclear or integrated gasification combined cycle power plant following an order by the commission approving the need for the nuclear or integrated gasification combined cycle power plant under this act shall not constitute or be evidence of imprudence. Imprudence shall not include any cost increases due to events beyond the utility’s control. Further, a utility’s right to recover costs associated with a nuclear or integrated gasification combined cycle power plant may not be raised in any other forum or in the review of proceedings in such other forum. Costs incurred prior to commercial operation shall be recovered pursuant to chapter 366.
History.s. 5, ch. 80-65; s. 24, ch. 90-331; s. 43, ch. 2006-230; s. 3, ch. 2007-117; s. 85, ch. 2008-227.
403.52 Short title.Sections 403.52-403.5365 may be cited as the “Florida Electric Transmission Line Siting Act.”
History.s. 1, ch. 80-65; s. 25, ch. 90-331; s. 45, ch. 2006-230.
403.521 Legislative intent.The legislative intent of this act is to establish a centralized and coordinated licensing process for the location of electric transmission line corridors and the construction, operation, and maintenance of electric transmission lines, which are critical infrastructure facilities. This necessarily involves several broad interests of the public addressed through the subject matter jurisdiction of several agencies. The Legislature recognizes that electric transmission lines will have an effect upon the reliability of the electric power system, the environment, land use, and the welfare of the population. Recognizing the need to ensure electric power system reliability and integrity, and in order to meet electric energy needs in an orderly and timely fashion, the centralized and coordinated licensing process established by this act is intended to further the legislative goal of ensuring through available and reasonable methods that the location of transmission line corridors and the construction, operation, and maintenance of electric transmission lines produce minimal adverse effects on the environment and public health, safety, and welfare. It is the intent of this act to fully balance the need for transmission lines with the broad interests of the public in order to effect a reasonable balance between the need for the facility as a means of providing reliable, economical, and efficient electric energy and the impact on the public and the environment resulting from the location of the transmission line corridor and the construction, operation, and maintenance of the transmission lines. The Legislature intends that the provisions of chapter 120 apply to this act and to proceedings under it except as otherwise expressly exempted by other provisions of this act.
History.s. 1, ch. 80-65; s. 2, ch. 83-222; s. 26, ch. 90-331; s. 46, ch. 2006-230.
403.522 Definitions relating to the Florida Electric Transmission Line Siting Act.As used in this act:
(1) “Act” means the Florida Electric Transmission Line Siting Act.
(2) “Agency,” as the context requires, means an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or other unit or entity of government, including a county, municipality, or other regional or local governmental entity.
(3) “Amendment” means a material change in information provided by the applicant to the application for certification made after the initial application filing.
(4) “Applicant” means any electric utility that applies for certification under this act.
(5) “Application” means the documents required by the department to be filed to initiate and support a certification review and evaluation, including the initial document filing, amendments, and responses to requests from the department for additional data and information. An electric utility may file a comprehensive application encompassing all or a part of one or more proposed transmission lines.
(6) “Board” means the Governor and Cabinet sitting as the siting board.
(7) “Certification” means the approval by the board of the license for a corridor proper for certification pursuant to subsection (10) and the construction, operation, and maintenance of transmission lines within the corridor with the changes or conditions as the siting board deems appropriate. Certification shall be evidenced by a written order of the board.
(8) “Commission” means the Florida Public Service Commission.
(9) “Completeness” means that the application has addressed all applicable sections of the prescribed application format and that those sections are sufficient in comprehensiveness of data or in quality of information provided to allow the department to determine whether the application provides the reviewing agencies adequate information to prepare the reports required by s. 403.526.
(10) “Corridor” means the proposed area within which a transmission line right-of-way, including maintenance and access roads, is to be located. The width of the corridor proposed for certification by an applicant or other party, at the option of the applicant, may be the width of the transmission line right-of-way, or a wider boundary, not to exceed a width of 1 mile. The area within the corridor in which a right-of-way may be located may be further restricted by a condition of certification. After all property interests required for the transmission line right-of-way and maintenance and access roads have been acquired by the applicant, the boundaries of the area certified shall narrow to only that land within the boundaries of the transmission line right-of-way. The corridors proper for certification shall be those addressed in the application, in amendments to the application filed under s. 403.5275, and in notices of acceptance of proposed alternate corridors filed by an applicant and the department pursuant to s. 403.5271 for which the required information for the preparation of agency supplemental reports was filed.
(11) “Department” means the Department of Environmental Protection.
(12) “Electric utility” means cities and towns, counties, public utility districts, regulated electric companies, electric cooperatives, regional transmission organizations, operators of independent transmission systems, or other transmission organizations approved by the Federal Energy Regulatory Commission or the commission for the operation of transmission facilities, and joint operating agencies, or combinations thereof, engaged in, or authorized to engage in, the business of generating, transmitting, or distributing electric energy.
(13) “License” means a franchise, permit, certification, registration, charter, comprehensive plan amendment, development order, or permit as defined in chapters 163 and 380, or similar form of authorization required by law, but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial act.
(14) “Licensee” means an applicant that has obtained a certification order for the subject project.
(15) “Local government” means a municipality or county in the jurisdiction of which the project is proposed to be located.
(16) “Maintenance and access roads” means roads constructed within the transmission line right-of-way. Nothing in this act prohibits an applicant from constructing a road to support construction, operation, or maintenance of the transmission line that lies outside the transmission line right-of-way.
(17) “Modification” means any change in the certification order after issuance, including a change in the conditions of certification.
(18) “Nonprocedural requirements of agencies” means any agency’s regulatory requirements established by statute, rule, ordinance, or comprehensive plan, excluding any provisions prescribing forms, fees, procedures, or time limits for the review or processing of information submitted to demonstrate compliance with such regulatory requirements.
(19) “Person” means an individual, partnership, joint venture, private or public corporation, association, firm, public service company, political subdivision, municipal corporation, government agency, public utility district, or any other entity, public or private, however organized.
(20) “Preliminary statement of issues” means a listing and explanation of those issues within the agency’s jurisdiction which are of major concern to the agency in relation to the proposed electric transmission line corridor.
(21) “Regional planning council” means a regional planning council as defined in s. 186.503(4) in the jurisdiction of which the project is proposed to be located.
(22) “Transmission line” or “electric transmission line” means structures, maintenance and access roads, and all other facilities that need to be constructed, operated, or maintained for the purpose of conveying electric power extending from, but not including, an existing or proposed substation or power plant to, but not including, an existing or proposed transmission network or rights-of-way or substation to which the applicant intends to connect which defines the end of the proposed project and which is designed to operate at 230 kilovolts or more. The transmission line may include, at the applicant’s option, any proposed terminal or intermediate substations or substation expansions necessary to serve the transmission line.
(23) “Transmission line right-of-way” means land necessary for the construction, operation, and maintenance of a transmission line. The typical width of the right-of-way shall be identified in the application. The right-of-way shall be located within the certified corridor and shall be identified by the applicant in documents filed with the department before construction.
(24) “Water management district” means a water management district created pursuant to chapter 373 in the jurisdiction of which the project is proposed to be located.
History.s. 1, ch. 80-65; s. 3, ch. 83-222; s. 54, ch. 85-81; s. 27, ch. 90-331; s. 388, ch. 94-356; s. 47, ch. 2006-230.
403.523 Department of Environmental Protection; powers and duties.The department has the following powers and duties:
(1) To adopt procedural rules pursuant to ss. 120.536(1) and 120.54 to administer this act and to adopt or amend rules to implement the provisions of subsection (10).
(2) To prescribe the form and content of the public notices and the form, content, and necessary supporting documentation, and any required studies, for certification applications. All data and studies shall be related to the jurisdiction of the agencies relevant to the application.
(3) To receive applications for transmission line and corridor certifications and initially determine the completeness thereof.
(4) To make or contract for studies of certification applications. All studies shall be related to the jurisdiction of the agencies relevant to the application. For studies in areas outside the jurisdiction of the department and in the jurisdiction of another agency, the department may initiate such studies, but only with the consent of the agency.
(5) To administer the processing of applications for certification and ensure that the applications, including postcertification reviews, are processed on an expeditious and priority basis.
(6) To collect and process such fees as allowed by this act.
(7) To prepare a report and project analysis as required by s. 403.526.
(8) To prescribe the means for monitoring the effects arising from the location of the transmission line corridor and the construction, operation, and maintenance of the transmission lines to assure continued compliance with the terms of the certification.
(9) To make a determination of acceptability of any alternate corridor proposed for consideration under s. 403.5271.
(10) To set requirements that reasonably protect the public health and welfare from the electric and magnetic fields of transmission lines for which an application is filed under this act.
(11) To present rebuttal evidence on any issue properly raised at the certification hearing.
(12) To issue final orders after receipt of the administrative law judge’s order relinquishing jurisdiction pursuant to s. 403.527(6).
(13) To act as clerk for the siting board.
(14) To administer and manage the terms and conditions of the certification order and supporting documents and records for the life of the facility.
(15) To issue emergency orders on behalf of the board for facilities licensed under this act.
History.s. 1, ch. 80-65; s. 37, ch. 81-167; s. 265, ch. 81-259; s. 39, ch. 83-55; s. 4, ch. 83-222; s. 8, ch. 86-173; s. 55, ch. 86-186; s. 28, ch. 90-331; s. 389, ch. 94-356; s. 103, ch. 98-200; s. 48, ch. 2006-230.
403.524 Applicability; certification; exemptions.
(1) This act applies to each transmission line, except a transmission line certified under the Florida Electrical Power Plant Siting Act.
(2) Except as provided in subsection (1), construction of a transmission line may not be undertaken without first obtaining certification under this act, but this act does not apply to:
(a) Transmission lines for which development approval has been obtained under chapter 380.
(b) Transmission lines that have been exempted by a binding letter of interpretation issued under s. 380.06(4), or in which the Department of Economic Opportunity or its predecessor agency has determined the utility to have vested development rights within the meaning of s. 380.05(18) or s. 380.06(20).
(c) Transmission line development in which all construction is limited to established rights-of-way. Established rights-of-way include rights-of-way established at any time for roads, highways, railroads, gas, water, oil, electricity, or sewage and any other public purpose rights-of-way. If an established transmission line right-of-way is used to qualify for this exemption, the transmission line right-of-way must have been established at least 5 years before notice of the start of construction under subsection (4) of the proposed transmission line. If an established transmission line right-of-way is relocated to accommodate a public project, the date the original transmission line right-of-way was established applies to the relocated transmission line right-of-way for purposes of this exemption.
(d) Unless the applicant has applied for certification under this act, transmission lines that are less than 15 miles in length or are located in a single county within the state.
(3) The exemption of a transmission line under this act does not constitute an exemption for the transmission line from other applicable permitting processes under other provisions of law or local government ordinances.
(4) An electric utility shall notify the department in writing, before the start of construction, of its intent to construct a transmission line exempted under this section. The notice is only for information purposes, and action by the department is not required pursuant to the notice. This notice may be included in any submittal filed with the department before the start of construction demonstrating that a new transmission line complies with the applicable electric and magnetic field standards.
History.s. 1, ch. 80-65; s. 14, ch. 81-131; s. 38, ch. 81-167; s. 40, ch. 83-55; s. 5, ch. 83-222; s. 49, ch. 85-55; s. 29, ch. 90-331; s. 49, ch. 2006-230; s. 289, ch. 2011-142.
403.525 Administrative law judge; appointment; powers and duties.
(1)(a) Within 7 days after receipt of an application, whether complete or not, the department shall request the Division of Administrative Hearings to designate an administrative law judge to conduct the hearings required by this act.
(b) The division director shall designate an administrative law judge to conduct the hearings required by this act within 7 days after receipt of the request from the department. Whenever practicable, the division director shall assign an administrative law judge who has had prior experience or training in this type of certification proceeding.
(c) Upon being advised that an administrative law judge has been designated, the department shall immediately file a copy of the application and all supporting documents with the administrative law judge, who shall docket the application.
(2) The administrative law judge has all powers and duties granted to administrative law judges under chapter 120 and by the laws and rules of the department.
History.s. 1, ch. 80-65; s. 6, ch. 83-222; s. 30, ch. 90-331; s. 145, ch. 96-410; s. 50, ch. 2006-230.
403.5251 Application; schedules.
(1)(a) The formal date of the filing of the application for certification and commencement of the review process for certification is the date on which the applicant submits:
1. Copies of the application for certification in a quantity and format, electronic or otherwise as prescribed by rule, to the department and other agencies identified in s. 403.526(2).
2. The application fee as specified under s. 403.5365 to the department.

The department shall provide to the applicant and the Division of Administrative Hearings the names and addresses of any additional agencies or persons entitled to notice and copies of the application and amendments, if any, within 7 days after receiving the application for certification and the application fees.

(b) In the application, the starting point and ending point of a transmission line must be specifically defined by the applicant.
(2) Within 15 days after the formal date of the application filing, the department shall prepare a proposed schedule of dates for determination of completeness, submission of statements of issues, submittal of final reports, and other significant dates to be followed during the certification process, including dates for filing notices of appearances to be a party under s. 403.527(2). This schedule shall be provided by the department to the applicant, the administrative law judge, and the agencies identified under subsection (1). Within 7 days after the filing of this proposed schedule, the administrative law judge shall issue an order establishing a schedule for the matters addressed in the department’s proposed schedule and other appropriate matters, if any.
(3) Copies of changes and amendments to the application shall be timely distributed by the applicant to all agencies and parties who have received a copy of the application.
(4) Notice of the filing of the application shall be made in accordance with the requirements of s. 403.5363.
History.s. 31, ch. 90-331; s. 146, ch. 96-410; s. 51, ch. 2006-230.
403.5252 Determination of completeness.
(1)(a) Within 30 days after the filing of an application, the affected agencies shall file a statement with the department containing the recommendations of each agency concerning the completeness of the application for certification.
(b) Within 37 days after the filing of the application, the department shall file a statement with the Division of Administrative Hearings, with the applicant, and with all parties declaring its position with regard to the completeness of the application. The statement of the department shall be based upon its consultation with the affected agencies.
(2) If the department declares the application to be incomplete, the applicant, within 14 days after the filing of the statement by the department, shall file with the Division of Administrative Hearings, with all parties, and with the department:
(a) A withdrawal of the application;
(b) Additional information necessary to make the application complete. After the department first determines the application to be incomplete, the time schedules under this act are not tolled if the applicant makes the application complete within the 14-day period. A subsequent finding by the department that the application remains incomplete tolls the time schedules under this act until the application is determined complete;
(c) A statement contesting the department’s determination of incompleteness; or
(d) A statement agreeing with the department and requesting additional time to provide the information necessary to make the application complete. If the applicant exercises this option, the time schedules under this act are tolled until the application is determined complete.
(3)(a) If the applicant contests the determination by the department that an application is incomplete, the administrative law judge shall schedule a hearing on the statement of completeness. The hearing shall be held as expeditiously as possible, but not later than 21 days after the filing of the statement by the department. The administrative law judge shall render a decision within 7 days after the hearing.
(b) Parties to a hearing on the issue of completeness shall include the applicant, the department, and any agency that has jurisdiction over the matter in dispute. Any substantially affected person who wishes to become a party to the hearing on the issue of completeness must file a motion no later than 10 days before the date of the hearing.
(c) If the administrative law judge determines that the application was not complete, the applicant shall withdraw the application or make such additional submittals as necessary to complete it. The time schedules referencing a complete application under this act do not commence until the application is determined complete.
(d) If the administrative law judge determines that the application was complete at the time it was declared incomplete, the time schedules referencing a complete application under this act shall commence upon such determination.
(4) If the applicant provides additional information to address the issues identified in the determination of incompleteness, each affected agency may submit to the department, no later than 14 days after the applicant files the additional information, a recommendation on whether the agency believes the application is complete. Within 21 days after receipt of the additional information from the applicant submitted under paragraph (2)(b), paragraph (2)(d), or paragraph (3)(c) and considering the recommendations of the affected agencies, the department shall determine whether the additional information supplied by an applicant makes the application complete. If the department finds that the application is still incomplete, the applicant may exercise any of the options specified in subsection (2) as often as is necessary to resolve the dispute.
History.s. 32, ch. 90-331; s. 147, ch. 96-410; s. 52, ch. 2006-230; s. 86, ch. 2008-227.
403.526 Preliminary statements of issues, reports, and project analyses; studies.
(1) Each affected agency that is required to file a report in accordance with this section shall submit a preliminary statement of issues to the department and all parties no later than the submittal of each agency’s recommendation that the application is complete. The failure to raise an issue in this preliminary statement of issues does not preclude the issue from being raised in the agency’s report.
(2)(a) No later than 90 days after the filing of the application, the following agencies shall prepare reports as provided below, unless a final order denying the determination of need has been issued under s. 403.537:
1. The department shall prepare a report as to the impact of each proposed transmission line or corridor as it relates to matters within its jurisdiction.
2. Each water management district in the jurisdiction of which a proposed transmission line or corridor is to be located shall prepare a report as to the impact on water resources and other matters within its jurisdiction.
3. The Department of Economic Opportunity shall prepare a report containing recommendations which address the impact upon the public of the proposed transmission line or corridor, based on the degree to which the proposed transmission line or corridor is consistent with the applicable portions of the state comprehensive plan, emergency management, and other matters within its jurisdiction. The Department of Economic Opportunity may also comment on the consistency of the proposed transmission line or corridor with applicable strategic regional policy plans or local comprehensive plans and land development regulations.
4. The Fish and Wildlife Conservation Commission shall prepare a report as to the impact of each proposed transmission line or corridor on fish and wildlife resources and other matters within its jurisdiction.
5. Each local government shall prepare a report as to the impact of each proposed transmission line or corridor on matters within its jurisdiction, including the consistency of the proposed transmission line or corridor with all applicable local ordinances, regulations, standards, or criteria that apply to the proposed transmission line or corridor, including local comprehensive plans, zoning regulations, land development regulations, and any applicable local environmental regulations adopted pursuant to s. 403.182 or by other means. A change by the responsible local government or local agency in local comprehensive plans, zoning ordinances, or other regulations made after the date required for the filing of the local government’s report required by this section is not applicable to the certification of the proposed transmission line or corridor unless the certification is denied or the application is withdrawn.
6. Each regional planning council shall present a report containing recommendations that address the impact upon the public of the proposed transmission line or corridor based on the degree to which the transmission line or corridor is consistent with the applicable provisions of the strategic regional policy plan adopted under chapter 186 and other impacts of each proposed transmission line or corridor on matters within its jurisdiction.
7. The Department of Transportation shall prepare a report as to the impact of the proposed transmission line or corridor on state roads, railroads, airports, aeronautics, seaports, and other matters within its jurisdiction.
8. The commission shall prepare a report containing its determination under s. 403.537, and the report may include the comments from the commission with respect to any other subject within its jurisdiction.
9. Any other agency, if requested by the department, shall also perform studies or prepare reports as to subjects within the jurisdiction of the agency which may potentially be affected by the proposed transmission line.
(b) Each report must contain:
1. A notice of any nonprocedural requirements not specifically listed in the application from which a variance, exemption, exception, or other relief is necessary in order for the proposed corridor to be certified. Failure to include the notice shall be treated as a waiver from the nonprocedural requirements of that agency.
2. A recommendation for approval or denial of the application.
3. The proposed conditions of certification on matters within the jurisdiction of each agency. For each condition proposed by an agency, the agency shall list the specific statute, rule, or ordinance, as applicable, which authorizes the proposed condition.
(c) Each reviewing agency shall initiate the activities required by this section no later than 15 days after the application is filed. Each agency shall keep the applicant and the department informed as to the progress of its studies and any issues raised thereby.
(d) When an agency whose agency head is a collegial body, such as a commission, board, or council, is required to submit a report pursuant to this section and is required by its own internal procedures to have the report reviewed by its agency head prior to finalization, the agency may submit to the department a draft version of the report by the deadline indicated in paragraph (a), and shall submit a final version of the report after review by the agency head, no later than 15 days after the deadline indicated in paragraph (a).
(e) Receipt of an affirmative determination of need from the commission by the submittal deadline for agency reports under paragraph (a) is a condition precedent to further processing of the application.
(3) The department shall prepare a project analysis containing a compilation of agency reports and summaries of the material contained therein which shall be filed with the administrative law judge and served on all parties no later than 115 days after the application is filed, and which shall include:
(a) A statement indicating whether the proposed electric transmission line will be in compliance with the rules of the department and affected agencies.
(b) The studies and reports required by this section and s. 403.537.
(c) Comments received from any other agency or person.
(d) The recommendation of the department as to the disposition of the application, of variances, exemptions, exceptions, or other relief identified by any party, and of any proposed conditions of certification which the department believes should be imposed.
(4) The failure of any agency to submit a preliminary statement of issues or a report, or to submit its preliminary statement of issues or report within the allowed time, is not grounds for the alteration of any time limitation in this act under s. 403.528. The failure to submit a preliminary statement of issues or a report, or the inadequacy of the preliminary statement of issues or report, is not grounds to deny or condition certification.
History.s. 1, ch. 80-65; s. 39, ch. 81-167; s. 41, ch. 83-55; s. 7, ch. 83-222; s. 34, ch. 90-331; s. 390, ch. 94-356; s. 15, ch. 95-149; s. 149, ch. 96-410; s. 209, ch. 99-245; s. 53, ch. 2006-230; s. 83, ch. 2007-5; s. 87, ch. 2008-227; s. 290, ch. 2011-142.
403.527 Certification hearing, parties, participants.
(1)(a) No later than 145 days after the application is filed, the administrative law judge shall conduct a certification hearing pursuant to ss. 120.569 and 120.57 at a central location in proximity to the proposed transmission line or corridor.
(b) Notice of the certification hearing and other public hearings provided for in this section and notice of the deadline for filing of notice of intent to be a party shall be made in accordance with the requirements of s. 403.5363.
(2)(a) Parties to the proceeding shall be:
1. The applicant.
2. The department.
3. The commission.
4. The Department of Economic Opportunity.
5. The Fish and Wildlife Conservation Commission.
6. The Department of Transportation.
7. Each water management district in the jurisdiction of which the proposed transmission line or corridor is to be located.
8. The local government.
9. The regional planning council.
(b) Any party listed in paragraph (a), other than the department or the applicant, may waive its right to participate in these proceedings. If any listed party fails to file a notice of its intent to be a party on or before the 30th day before the certification hearing, the party is deemed to have waived its right to be a party unless its participation would not prejudice the rights of any party to the proceeding.
(c) Notwithstanding the provisions of chapter 120 to the contrary, upon the filing with the administrative law judge of a notice of intent to be a party by an agency, corporation, or association described in subparagraphs 1. and 2. or a petition for intervention by a person described in subparagraph 3. no later than 30 days before the date set for the certification hearing, the following shall also be parties to the proceeding:
1. Any agency not listed in paragraph (a) as to matters within its jurisdiction.
2. Any domestic nonprofit corporation or association formed, in whole or in part, to promote conservation of natural beauty; to protect the environment, personal health, or other biological values; to preserve historical sites; to promote consumer interests; to represent labor, commercial, or industrial groups; or to promote comprehensive planning or orderly development of the area in which the proposed transmission line or corridor is to be located.
3. Any person whose substantial interests are affected and being determined by the proceeding.
(d) Any agency whose properties or works may be affected shall be made a party upon the request of the agency or any party to this proceeding.
(3)(a) The order of presentation at the certification hearing, unless otherwise changed by the administrative law judge to ensure the orderly presentation of witnesses and evidence, shall be:
1. The applicant.
2. The department.
3. State agencies.
4. Regional agencies, including regional planning councils and water management districts.
5. Local governments.
6. Other parties.
(b) When appropriate, any person may be given an opportunity to present oral or written communications to the administrative law judge. If the administrative law judge proposes to consider such communications, all parties shall be given an opportunity to cross-examine, challenge, or rebut the communications.
(4)(a) One public hearing where members of the public who are not parties to the certification hearing may testify shall be held in conjunction with the certification hearing.
(b) Upon the request of the local government, one public hearing where members of the public who are not parties to the certification hearing and who reside within the jurisdiction of the local government may testify shall be held within the boundaries of each county in which a local government that made such a request is located.
(c) A local government shall notify the administrative law judge and all parties not later than 50 days after the filing of the application as to whether the local government wishes to have a public hearing within the boundaries of its county. The local government is responsible for providing the location of the public hearing if held separately from the certification hearing.
(d) Within 5 days after notification, the administrative law judge shall determine the date of the public hearing, which shall be held before or during the certification hearing. If two or more local governments within one county request a public hearing, the hearing shall be consolidated so that only one public hearing is held in any county. The location of a consolidated hearing shall be determined by the administrative law judge.
(e) If a local government does not request a public hearing within 50 days after the filing of the application, members of the public who are not parties to the certification hearing and who reside within the jurisdiction of the local government may testify during the hearing held under paragraph (b).
(5) At the conclusion of the certification hearing, the administrative law judge shall, after consideration of all evidence of record, issue a recommended order disposing of the application no later than 45 days after the transcript of the certification hearing and the public hearings is filed with the Division of Administrative Hearings.
(6)(a) No later than 29 days before the certification hearing, the department or the applicant may request that the administrative law judge cancel the certification hearing and relinquish jurisdiction to the department if all parties to the proceeding stipulate that there are no disputed issues of material fact or law.
(b) The administrative law judge shall issue an order granting or denying the request within 5 days.
(c) If the administrative law judge grants the request, the department and the applicant shall publish notices of the cancellation of the certification hearing in accordance with s. 403.5363.
(d)1. If the administrative law judge grants the request, the department shall prepare and issue a final order in accordance with s. 403.529(1)(a).
2. Parties may submit proposed final orders to the department no later than 10 days after the administrative law judge issues an order relinquishing jurisdiction.
(7) The applicant shall pay those expenses and costs associated with the conduct of the hearing and the recording and transcription of the proceedings.
History.s. 1, ch. 80-65; s. 40, ch. 81-167; s. 42, ch. 83-55; s. 8, ch. 83-222; s. 55, ch. 85-81; s. 35, ch. 90-331; s. 391, ch. 94-356; s. 150, ch. 96-410; s. 210, ch. 99-245; s. 54, ch. 2006-230; s. 88, ch. 2008-227; s. 291, ch. 2011-142.
403.5271 Alternate corridors.
(1) No later than 45 days before the originally scheduled certification hearing, any party may propose alternate transmission line corridor routes for consideration under the provisions of this act.
(a) A notice of a proposed alternate corridor must be filed with the administrative law judge, all parties, and any local governments in whose jurisdiction the alternate corridor is proposed. The filing must include the most recent United States Geological Survey 1:24,000 quadrangle maps specifically delineating the corridor boundaries, a description of the proposed corridor, and a statement of the reasons the proposed alternate corridor should be certified.
(b)1. Within 7 days after receipt of the notice, the applicant and the department shall file with the administrative law judge and all parties a notice of acceptance or rejection of a proposed alternate corridor for consideration. If the alternate corridor is rejected by the applicant or the department, the certification hearing and the public hearings shall be held as scheduled. If both the applicant and the department accept a proposed alternate corridor for consideration, the certification hearing and the public hearings shall be rescheduled, if necessary. If a filing for an alternate corridor is accepted for consideration by the department and the applicant, any newly affected local government must notify the administrative law judge and all parties not later than 10 days after the data concerning the alternate corridor has been determined complete as to whether the local government wishes to have such a public hearing. The local government is responsible for providing the location of the public hearing if held separately from the certification hearing. The provisions of s. 403.527(4)(b) and (c) shall apply. Notice of the local hearings shall be published in accordance with s. 403.5363.
2. If rescheduled, the certification hearing shall be held no more than 90 days after the previously scheduled certification hearing, unless the data submitted under paragraph (d) is determined to be incomplete, in which case the rescheduled certification hearing shall be held no more than 105 days after the previously scheduled certification hearing. If additional time is needed due to the alternate corridor crossing a local government jurisdiction that was not previously affected, the remainder of the schedule listed below shall be appropriately adjusted by the administrative law judge to allow that local government to prepare a report pursuant to s. 403.526(2)(a)5. Notice that the certification hearing has been deferred due to the acceptance of the alternate corridor shall be published in accordance with s. 403.5363.
(c) Notice of the filing of the alternate corridor shall be published by the alternate proponent in accordance with s. 403.5363(2). If the notice is not timely published or does not meet the notice requirements, the alternate shall be deemed withdrawn.
(d) Within 21 days after acceptance of an alternate corridor by the department and the applicant, the party proposing an alternate corridor shall have the burden of providing all data to the agencies listed in s. 403.526(2) and newly affected agencies necessary for the preparation of a supplementary report on the proposed alternate corridor.
(e)1. Reviewing agencies shall advise the department of any issues concerning completeness no later than 15 days after the submittal of the data required by paragraph (d). Within 22 days after receipt of the data, the department shall issue a determination of completeness.
2. If the department determines that the data required by paragraph (d) is not complete, the party proposing the alternate corridor must file such additional data to correct the incompleteness. This additional data must be submitted within 14 days after the determination by the department.
3. Reviewing agencies may advise the department of any issues concerning completeness of the additional data within 10 days after the filing by the party proposing the alternate corridor. If the department, within 14 days after receiving the additional data, determines that the data remains incomplete, the incompleteness of the data is deemed a withdrawal of the proposed alternate corridor. The department may make its determination based on recommendations made by other affected agencies.
(f) The agencies listed in s. 403.526(2) and any newly affected agencies shall file supplementary reports with the applicant and the department which address the proposed alternate corridors no later than 24 days after the data submitted pursuant to paragraph (d) or paragraph (e) is determined to be complete.
(g) The agency reports on alternate corridors must include all information required by s. 403.526(2).
(h) When an agency whose agency head is a collegial body, such as a commission, board, or council, is required to submit a report pursuant to this section and is required by its own internal procedures to have the report reviewed by its agency head prior to finalization, the agency may submit to the department a draft version of the report by the deadline indicated in paragraph (f), and shall submit a final version of the report after review by the agency head no later than 7 days after the deadline indicated in paragraph (f).
(i) The department shall file with the administrative law judge, the applicant, and all parties a project analysis consistent with s. 403.526(3) no more than 16 days after submittal of agency reports on the proposed alternate corridor.
(2) If the original certification hearing date is rescheduled, the rescheduling shall not provide the opportunity for parties to file additional alternate corridors to the applicant’s proposed corridor or any accepted alternate corridor. However, an amendment to the application which changes the alignment of the applicant’s proposed corridor shall require rescheduling of the certification hearing, if necessary, so as to allow time for a party to file alternate corridors to the realigned proposed corridor for which the application has been amended. Any alternate corridor proposal shall have the same starting and ending points as the realigned portion of the corridor proposed by the applicant’s amendment, provided that the administrative law judge for good cause shown may authorize another starting or ending point in the area of the applicant’s amended corridor.
(3)(a) Notwithstanding the rejection of a proposed alternate corridor by the applicant or the department, any party may present evidence at the certification hearing to show that a corridor proper for certification does not satisfy the criteria listed in s. 403.529 or that a rejected alternate corridor would meet the criteria set forth in s. 403.529. Evidence may not be admitted at the certification hearing on any alternate corridor, unless the alternate corridor was proposed by the filing of a notice at least 45 days before the originally scheduled certification hearing pursuant to this section. Rejected alternate corridors shall be considered by the board as provided in s. 403.529(4) and (5).
(b) The party proposing an alternate corridor has the burden to prove that the alternate corridor can be certified at the certification hearing. This act does not require an applicant or agency that is not proposing the alternate corridor to submit data in support of the alternate corridor.
(4) If an alternate corridor is accepted by the applicant and the department pursuant to a notice of acceptance as provided in this subsection and the corridor is ultimately determined to be the corridor that would meet the criteria set forth in s. 403.529(4) and (5), the board shall certify that corridor.
History.s. 36, ch. 90-331; s. 392, ch. 94-356; s. 151, ch. 96-410; s. 55, ch. 2006-230; s. 84, ch. 2007-5; s. 89, ch. 2008-227.
403.5272 Informational public meetings.
(1) A local government whose jurisdiction is to be crossed by a proposed corridor may hold one informational public meeting in addition to the hearings specifically authorized by this act on any matter associated with the transmission line proceeding. The informational public meeting may be conducted by the local government or the regional planning council and shall be held no later than 55 days after the application is filed. The purpose of an informational public meeting is for the local government or regional planning council to further inform the public about the transmission line proposed, obtain comments from the public, and formulate its recommendation with respect to the proposed transmission line.
(2) Informational public meetings shall be held solely at the option of each local government or regional planning council. It is the legislative intent that local governments or regional planning councils attempt to hold such public meetings. Parties to the proceedings under this act shall be encouraged to attend; however, a party other than the applicant and the department is not required to attend the informational public meetings.
(3) A local government or regional planning council that intends to conduct an informational public meeting must provide notice of the meeting, with notice sent to all parties listed in s. 403.527(2)(a), not less than 15 days before the meeting and to the general public in accordance with s. 403.5363(4).
(4) The failure to hold an informational public meeting or the procedure used for the informational public meeting is not grounds for the alteration of any time limitation in this act under s. 403.528 or grounds to deny or condition certification.
History.s. 9, ch. 83-222; s. 56, ch. 2006-230; s. 90, ch. 2008-227.
403.5275 Amendment to the application.
(1) Any amendment made to the application before certification shall be sent by the applicant to the administrative law judge and to all parties to the proceeding.
(2) Any amendment to the application made before certification shall be disposed of as part of the original certification proceeding. Amendment of the application may be considered “good cause” for alteration of time limits pursuant to s. 403.528.
History.s. 1, ch. 80-65; s. 10, ch. 83-222; s. 37, ch. 90-331; s. 152, ch. 96-410; s. 57, ch. 2006-230.
403.528 Alteration of time limits.
(1) Any time limitation in this act may be altered by the administrative law judge upon stipulation between the department and the applicant unless objected to by any party within 5 days after notice or for good cause shown by any party.
(2) A comprehensive application encompassing more than one proposed transmission line may be good cause for alteration of time limits.
History.s. 1, ch. 80-65; s. 11, ch. 83-222; s. 153, ch. 96-410; s. 58, ch. 2006-230; s. 85, ch. 2007-5.
403.529 Final disposition of application.
(1)(a) If the administrative law judge has granted a request to cancel the certification hearing and has relinquished jurisdiction to the department under s. 403.527(6), within 40 days thereafter, the secretary of the department shall act upon the application by written order in accordance with the terms of this act and state the reasons for issuance or denial.
(b) If the administrative law judge does not grant a request to cancel the certification hearing under the provisions of s. 403.527(6) within 60 days after receipt of the administrative law judge’s recommended order, the board shall act upon the application by written order, approving in whole, approving with such conditions as the board deems appropriate, or denying the certification and stating the reasons for issuance or denial.
(2) The issues that may be raised in any hearing before the board shall be limited to matters raised in the certification proceeding before the administrative law judge or raised in the recommended order of the administrative law judge. All parties, or their representatives, or persons who appear before the board shall be subject to s. 120.66.
(3) If certification is denied, the board, or secretary if applicable, shall set forth in writing the action the applicant would have to take to secure the approval of the application.
(4) In determining whether an application should be approved in whole, approved with modifications or conditions, or denied, the board, or secretary when applicable, shall consider whether, and the extent to which, the location of the transmission line corridor and the construction, operation, and maintenance of the transmission line will:
(a) Ensure electric power system reliability and integrity;
(b) Meet the electrical energy needs of the state in an orderly, economical, and timely fashion;
(c) Comply with applicable nonprocedural requirements of agencies;
(d) Be consistent with applicable provisions of local government comprehensive plans, if any; and
(e) Effect a reasonable balance between the need for the transmission line as a means of providing reliable, economically efficient electric energy, as determined by the commission, under s. 403.537, and the impact upon the public and the environment resulting from the location of the transmission line corridor and the construction, operation, and maintenance of the transmission lines.
(5)(a) Any transmission line corridor certified by the board, or secretary if applicable, shall meet the criteria of this section. When more than one transmission line corridor is proper for certification under s. 403.522(10) and meets the criteria of this section, the board, or secretary if applicable, shall certify the transmission line corridor that has the least adverse impact regarding the criteria in subsection (4), including costs.
(b) If the board, or secretary if applicable, finds that an alternate corridor rejected pursuant to s. 403.5271 meets the criteria of subsection (4) and has the least adverse impact regarding the criteria in subsection (4), including cost, of all corridors that meet the criteria of subsection (4), the board, or secretary if applicable, shall deny certification or shall allow the applicant to submit an amended application to include the corridor.
(c) If the board, or secretary if applicable, finds that two or more of the corridors that comply with subsection (4) have the least adverse impacts regarding the criteria in subsection (4), including costs, and that the corridors are substantially equal in adverse impacts regarding the criteria in subsection (4), including costs, the board, or secretary if applicable, shall certify the corridor preferred by the applicant if the corridor is one proper for certification under s. 403.522(10).
(6) The issuance or denial of the certification is the final administrative action required as to that application.
History.s. 1, ch. 80-65; s. 12, ch. 83-222; s. 38, ch. 90-331; s. 154, ch. 96-410; s. 59, ch. 2006-230.
403.531 Effect of certification.
(1) Subject to the conditions set forth therein, certification shall constitute the sole license of the state and any agency as to the approval of the location of transmission line corridors and the construction, operation, and maintenance of transmission lines. The certification is valid for the life of the transmission line, if construction on, or condemnation or acquisition of, the right-of-way is commenced within 5 years after the date of certification or such later date as may be authorized by the board.
(2)(a) The certification authorizes the licensee to locate the transmission line corridor and to construct and maintain the transmission lines subject only to the conditions of certification set forth in the certification.
(b) The certification may include conditions that constitute variances and exemptions from nonprocedural standards or rules of the department or any other agency which were expressly considered during the certification review unless waived by the agency as provided in s. 403.526 and which otherwise would be applicable to the location of the proposed transmission line corridor or the construction, operation, and maintenance of the transmission lines.
(3)(a) The certification shall be in lieu of any license, permit, certificate, or similar document required by any state, regional, or local agency under, but not limited to, chapter 125, chapter 161, chapter 163, chapter 166, chapter 186, chapter 253, chapter 258, chapter 298, chapter 373, chapter 376, chapter 379, chapter 380, chapter 381, chapter 403, chapter 404, the Florida Transportation Code, or 33 U.S.C. s. 1341.
(b) On certification, any license, easement, or other interest in state lands, except those the title of which is vested in the Board of Trustees of the Internal Improvement Trust Fund, shall be issued by the appropriate agency as a ministerial act. The applicant shall seek any necessary interest in state lands the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund from the board of trustees before, during, or after the certification proceeding, and certification may be made contingent upon issuance of the appropriate interest in realty. However, the applicant and any party to the certification proceeding may not directly or indirectly raise or relitigate any matter that was or could have been an issue in the certification proceeding in any proceeding before the Board of Trustees of the Internal Improvement Trust Fund wherein the applicant is seeking a necessary interest in state lands, but the information presented in the certification proceeding shall be available for review by the board of trustees and its staff.
(4) This act does not in any way affect the ratemaking powers of the commission under chapter 366. This act does not in any way affect the right of any local government to charge appropriate fees or require that construction be in compliance with the National Electrical Safety Code, as prescribed by the commission.
(5) A term or condition of certification may not be interpreted to preclude the postcertification exercise by any party of whatever procedural rights it may have under chapter 120, including those related to rulemaking proceedings.
History.s. 1, ch. 80-65; s. 266, ch. 81-259; s. 13, ch. 83-222; s. 39, ch. 90-331; s. 60, ch. 2006-230; s. 50, ch. 2009-21.
403.5312 Filing of notice of certified corridor route.
(1) Within 60 days after certification of a transmission line corridor under ss. 403.52-403.5365, the applicant shall file with the department and, in accordance with s. 28.222, with the clerk of the circuit court for each county through which the corridor will pass, a notice of the certified route.
(2) The notice must consist of maps or aerial photographs in the scale of 1:24,000 which clearly show the location of the certified route and must state that the certification of the corridor will result in the acquisition of rights-of-way within the corridor. Each clerk shall record the filing in the official record of the county for the duration of the certification or until such time as the applicant certifies to the department and the clerk that all lands required for the transmission line rights-of-way within the corridor have been acquired within the county, whichever is sooner.
(3) The recording of this notice does not constitute a lien, cloud, or encumbrance on real property.
History.s. 12, ch. 81-131; s. 40, ch. 90-331; s. 61, ch. 2006-230; s. 91, ch. 2008-227.
403.5315 Modification of certification.A certification may be modified after issuance in any one of the following ways:
(1) The board may delegate to the department the authority to modify specific conditions in the certification.
(2) The licensee may file a petition for modification with the department, or the department may initiate the modification upon its own initiative.
(a) A petition for modification must set forth:
1. The proposed modification;
2. The factual reasons asserted for the modification; and
3. The anticipated additional environmental effects of the proposed modification.
(b) The department may modify the terms and conditions of the certification if no party objects in writing to the modification within 45 days after notice by mail to the last address of record in the certification proceeding, and if no other person whose substantial interests will be affected by the modification objects in writing within 30 days after issuance of public notice.
(c) If objections are raised or the department denies the proposed modification, the licensee may file a request for hearing on the modification with the department. Such a request shall be handled pursuant to chapter 120.
(d) A request for hearing referred to the Division of Administrative Hearings shall be disposed of in the same manner as an application but with time periods established by the administrative law judge commensurate with the significance of the modification requested.
History.s. 1, ch. 80-65; s. 15, ch. 83-222; s. 41, ch. 90-331; s. 155, ch. 96-410; s. 62, ch. 2006-230.
403.5317 Postcertification activities.
(1)(a) If, subsequent to certification, a licensee proposes any material change to the application or prior amendments, the licensee shall submit to the department a written request for amendment and description of the proposed change to the application. The department shall, within 30 days after the receipt of the request for the amendment, determine whether the proposed change to the application requires a modification of the conditions of certification.
(b) If the department concludes that the change would not require a modification of the conditions of certification, the department shall notify, in writing, the licensee, all agencies, and all parties of the approval of the amendment.
(c) If the department concludes that the change would require a modification of the conditions of certification, the department shall notify the licensee that the proposed change to the application requires a request for modification under s. 403.5315.
(2) Postcertification submittals filed by a licensee with one or more agencies are for the purpose of monitoring for compliance with the issued certification. Each submittal must be reviewed by each agency on an expedited and priority basis because each facility certified under this act is a critical infrastructure facility. Postcertification review may not be completed more than 90 days after complete information for a segment of the certified transmission line is submitted to the reviewing agencies.
History.s. 63, ch. 2006-230.
403.532 Revocation or suspension of certification.Any certification may be revoked or suspended:
(1) For any material false statement in the application or in the supplemental or additional statements of fact or studies required of the applicant when a true answer would have warranted the board’s refusal to recommend a certification in the first instance.
(2) For failure to comply with the terms or conditions of the certification.
(3) For violation of the provisions of this act or rules or orders issued hereunder.
History.s. 1, ch. 80-65.
403.533 Enforcement of compliance.Failure to obtain a certification, or to comply with the conditions thereof, or to comply with this act shall constitute a violation of chapter 403.
History.s. 1, ch. 80-65; s. 42, ch. 90-331.
403.536 Superseded laws, regulations, and certification power.
(1) If any provision of this act is in conflict with any other provision, limitation, or restriction under any law, rule, regulation, or ordinance of this state or any political subdivision, municipality, or agency, this act shall control and such law, rule, regulation, or ordinance shall be deemed superseded for the purposes of this act.
(2) The state hereby preempts the certification of transmission lines and transmission line corridors.
(3) The board shall have the power to adopt reasonable procedural rules to carry out its duties under this act and to give effect to the legislative intent that this act provide an efficient, centrally coordinated, one-stop licensing process.
History.s. 1, ch. 80-65; s. 43, ch. 90-331.
403.5363 Public notices; requirements.
(1)(a) The applicant shall arrange for the publication of the notices specified in paragraph (b).
1. The notices shall be published in newspapers of general circulation within counties crossed by the transmission line corridors proper for certification. The required newspaper notices shall be published in a section of the newspaper other than the section for legal notices. A newspaper of general circulation shall be the newspaper within a county crossed by a transmission line corridor proper for certification which newspaper has the largest daily circulation in that county and has its principal office in that county. If the newspaper having the largest daily circulation has its principal office outside the county, the notices must appear in both the newspaper having the largest circulation in that county and in a newspaper authorized to publish legal notices in that county.
2. The department shall adopt rules specifying the content of the newspaper notices.
3. All notices published by the applicant shall be paid for by the applicant and shall be in addition to the application fee.
(b) Public notices that must be published under this section include:
1. The notice of the filing of an application, which must include a description of the proceedings required by this act. The notice must describe the provisions of s. 403.531(1) and (2) and give the date by which notice of intent to be a party or a petition to intervene in accordance with s. 403.527(2) must be filed. This notice must be published no more than 21 days after the application is filed. The notice shall, at a minimum, be one-half page in size in a standard size newspaper or a full page in a tabloid size newspaper. The notice must include a map generally depicting all transmission corridors proper for certification.
2. The notice of the certification hearing and any public hearing held under s. 403.527(4). The notice must include the date by which a person wishing to appear as a party must file the notice to do so. The notice of the originally scheduled certification hearing must be published at least 65 days before the date set for the certification hearing. The notice shall meet the size and map requirements set forth in subparagraph 1.
3. The notice of the cancellation of the certification hearing under s. 403.527(6), if applicable. The notice must be published at least 3 days before the date of the originally scheduled certification hearing. The notice shall, at a minimum, be one-fourth page in size in a standard size newspaper or one-half page in a tabloid size newspaper. The notice shall not require a map to be included.
4. The notice of the deferment of the certification hearing due to the acceptance of an alternate corridor under s. 403.5272(1)(b)2. The notice must be published at least 7 days before the date of the originally scheduled certification hearing. The notice shall, at a minimum, be one-eighth page in size in a standard size newspaper or one-fourth page in a tabloid size newspaper. The notice shall not require a map to be included.
5. If the notice of the rescheduled certification hearing required of an alternate proponent under s. 403.5271(1)(c) is not timely published or does not meet the notice requirements such that an alternate corridor is withdrawn under the provisions of s. 403.5271(1)(c), the notice of the rescheduled hearing and any local hearings shall be provided by the applicant at least 30 days prior to the rescheduled certification hearing.
6. The notice of the filing of a proposal to modify the certification submitted under s. 403.5315, if the department determines that the modification would require relocation or expansion of the transmission line right-of-way or a certified substation.
(2)(a) Each proponent of an alternate corridor shall arrange for newspaper notice of the publication of the filing of the proposal for an alternate corridor. If there is more than one alternate proponent, the proponents may jointly publish notice, so long as the content requirements below are met and the maps are legible.
(b) The notice shall specify the revised time schedules, the date by which newly affected persons or agencies may file the notice of intent to become a party, the date of the rescheduled hearing, and the date of any public hearing held under s. 403.5271(1)(b)1.
(c) A notice listed in this subsection must be published in a newspaper of general circulation within the county or counties crossed by the proposed alternate corridor and comply with the content, size, and map requirements set forth in this section.
(d) The notice of the alternate corridor proposal must be published not less than 45 days before the rescheduled certification hearing.
(3) The department shall arrange for the publication of the following notices in the manner specified by chapter 120:
(a) The notice of the filing of an application and the date by which a person intending to become a party must file a petition to intervene or a notice of intent to be a party. The notice must be published no later than 21 days after the application has been filed.
(b) The notice of any administrative hearing for certification, if applicable. The notice must be published not less than 65 days before the date set for a hearing, except that notice for a rescheduled certification hearing after acceptance of an alternative corridor must be published not less than 50 days before the date set for the hearing.
(c) The notice of the cancellation of a certification hearing under s. 403.527(6), if applicable. The notice must be published not later than 7 days before the date of the originally scheduled certification hearing.
(d) The notice of the deferment of the certification hearing due to the acceptance of an alternate corridor under s. 403.5271(1)(b)2. The notice must be published at least 7 days before the date of the originally scheduled certification hearing.
(e) The notice of the hearing before the siting board, if applicable.
(f) The notice of stipulations, proposed agency action, or a petition for modification.
(4) A local government or regional planning council that proposes to conduct an informational public meeting pursuant to s. 403.5272 must publish notice of the meeting in a newspaper of general circulation within the county or counties in which the proposed electrical transmission line will be located no later than 7 days prior to the meeting. A newspaper of general circulation shall be the newspaper that has the largest daily circulation in that county and has its principal office in that county. If the newspaper with the largest daily circulation has its principal office outside the county, the notices shall appear in both the newspaper having the largest circulation in that county and in a newspaper authorized to publish legal notices in that county.
(5)(a) A good faith effort shall be made by the applicant to provide direct notice of the filing of an application for certification by United States mail or hand delivery no later than 45 days after filing of the application to all local landowners whose property, as noted in the most recent local government tax records, and residences are located within one-quarter mile of the proposed boundaries of a transmission line corridor that only includes a transmission line as defined by s. 403.522(22).
(b) No later than 60 days after the filing of an application for certification, the applicant shall file a list with the department’s Siting Coordination Office of landowners and residences that were notified.
(6)(a) A good faith effort shall be made by the proponent of an alternate corridor that includes a transmission line, as defined by s. 403.522(22), to provide direct notice of the filing of an alternate corridor for certification by United States mail or hand delivery of the filing no later than 30 days after filing of the alternate corridor to all local landowners whose property, as noted in the most recent local government tax records, and residences are located within one-quarter mile of the proposed boundaries of a transmission line corridor that includes a transmission line as defined by s. 403.522(22).
(b) No later than 45 days after the filing of an alternate corridor for certification, the proponent of an alternate corridor shall file a list with the department’s Siting Coordination Office of landowners and residences that were notified.
History.s. 64, ch. 2006-230; s. 92, ch. 2008-227.
403.5365 Fees; disposition.The department shall charge the applicant the following fees, as appropriate, which, unless otherwise specified, shall be paid into the Florida Permit Fee Trust Fund:
(1) An application fee.
(a) The application fee shall be $100,000, plus $750 per mile for each mile of corridor in which the transmission line right-of-way is proposed to be located within an existing electric transmission line right-of-way or within any existing right-of-way for any road, highway, railroad, or other aboveground linear facility, or $1,000 per mile for each mile of electric transmission line corridor proposed to be located outside the existing right-of-way.
(b) Sixty percent of the fee shall go to the department to cover any costs associated with coordinating the review of and acting upon the application and any costs for field services associated with monitoring construction and operation of the electric transmission line facility.
(c) The following percentages shall be transferred to the Operating Trust Fund of the Division of Administrative Hearings of the Department of Management Services:
1. Five percent to compensate for expenses from the initial exercise of duties associated with the filing of an application.
2. An additional 10 percent if an administrative hearing under s. 403.527 is held.
(d)1. Upon written request with proper itemized accounting within 90 days after final agency action by the siting board or the department or the written notification of the withdrawal of the application, the agencies that prepared reports under s. 403.526 or s. 403.5271 or participated in a hearing under s. 403.527 or s. 403.5271 may submit a written request to the department for reimbursement of expenses incurred during the certification proceedings. The request must contain an accounting of expenses incurred, which may include time spent reviewing the application, preparation of any studies required of the agencies by this act, agency travel and per diem to attend any hearing held under this act, and for the local government or regional planning council providing additional notice of the informational public meeting. The department shall review the request and verify whether a claimed expense is valid. Valid expenses shall be reimbursed; however, if the amount of funds available for reimbursement is insufficient to provide for full compensation to the agencies, reimbursement shall be on a prorated basis.
2. If the application review is held in abeyance for more than 1 year, the agencies may submit a request for reimbursement under subparagraph 1. This time period shall be measured from the date the applicant has provided written notification to the department that it desires to have the application review process placed on hold. The fee disbursement shall be processed in accordance with subparagraph 1.
(e) If any sums are remaining, the department shall retain them for its use in the same manner as is otherwise authorized by this section; however, if the certification application is withdrawn, the remaining sums shall be refunded to the applicant within 90 days after submittal of the written notification of withdrawal.
(2) An amendment fee.
(a) If no corridor alignment change is proposed by the amendment, no amendment fee shall be charged.
(b) If a corridor alignment change under s. 403.5275 is proposed by the applicant, an additional fee of a minimum of $2,000 and $750 per mile shall be submitted to the department for use in accordance with this act.
(c) If an amendment is required to address issues, including alternate corridors under s. 403.5271, raised by the department or other parties, no fee for the amendment shall be charged.
(3) A certification modification fee.
(a) If no corridor alignment change is proposed by the licensee, the modification fee shall be $4,000.
(b) If a corridor alignment change is proposed by the licensee, the fee shall be $1,000 for each mile of realignment plus an amount not to exceed $10,000 to be fixed by rule on a sliding scale based on the load-carrying capability and configuration of the transmission line for use in accordance with subsection (1).
History.s. 44, ch. 90-331; s. 14, ch. 93-94; s. 393, ch. 94-356; s. 66, ch. 96-321; s. 211, ch. 99-245; s. 14, ch. 2006-79; s. 65, ch. 2006-230; s. 93, ch. 2008-227.
403.537 Determination of need for transmission line; powers and duties.
(1)(a) Upon request by an applicant or upon its own motion, the Florida Public Service Commission shall schedule a public hearing, after notice, to determine the need for a transmission line regulated by the Florida Electric Transmission Line Siting Act, ss. 403.52-403.5365. The notice shall be published at least 21 days before the date set for the hearing and shall be published by the applicant in at least one-quarter page size notice in newspapers of general circulation, and by the commission in the manner specified in chapter 120, by giving notice to counties and regional planning councils in whose jurisdiction the transmission line could be placed, and by giving notice to any persons who have requested to be placed on the mailing list of the commission for this purpose. Within 21 days after receipt of a request for determination by an applicant, the commission shall set a date for the hearing. The hearing shall be held pursuant to s. 350.01 within 45 days after the filing of the request, and a decision shall be rendered within 60 days after such filing.
(b) The commission shall be the sole forum in which to determine the need for a transmission line. The need for a transmission line may not be raised or be the subject of review in another proceeding.
(c) In the determination of need, the commission shall take into account the need for electric system reliability and integrity, the need for abundant, low-cost electrical energy to assure the economic well-being of the residents of this state, the appropriate starting and ending point of the line, and other matters within its jurisdiction deemed relevant to the determination of need. The appropriate starting and ending points of the electric transmission line must be verified by the commission in its determination of need.
(d) The determination by the commission of the need for the transmission line, as defined in s. 403.522(22), is binding on all parties to any certification proceeding under the Florida Electric Transmission Line Siting Act and is a condition precedent to the conduct of the certification hearing prescribed therein. An order entered pursuant to this section constitutes final agency action.
(2) The commission shall have the following powers and duties:
(a) To adopt or amend reasonable procedural rules to implement the provisions of this section.
(b) To prescribe the form, content, and necessary supporting documentation and the required studies for the determination of need.
(3) Any time limitation in this section may be altered by the commission upon stipulation between the commission and the applicant or for good cause shown by any party.
History.s. 3, ch. 80-65; s. 13, ch. 81-131; s. 19, ch. 83-222; s. 45, ch. 90-331; s. 66, ch. 2006-230.
403.539 Certification admissible in eminent domain proceedings; attorney’s fees and costs.
(1) Certification pursuant to ss. 403.52-403.5365 shall be admissible as evidence of public need and necessity in proceedings under chapter 73 or chapter 74.
(2) No party may rely on this section or any provision of chapter 73 or chapter 74 to request the award of attorney’s fees or costs incurred as a result of participation in the certification proceeding.
History.s. 2, ch. 80-65; s. 20, ch. 83-222; s. 46, ch. 90-331.
INTERSTATE ENVIRONMENTAL
CONTROL COMPACT
403.60 Environmental Control Compact; execution authorized.
403.60 Environmental Control Compact; execution authorized.The Governor on behalf of this state is hereby authorized to execute a compact, in substantially the following form, with any one or more of the states of the United States, and the Legislature hereby signifies in advance its approval and ratification of such compact:

MEMBER JURISDICTION.—The environmental compact is entered into with all jurisdictions legally joining therein and enacted into law in the following form:

INTERSTATE ENVIRONMENTAL COMPACT

ARTICLE I

FINDINGS, PURPOSES AND RESERVATIONS OF POWERS.—

A. Findings.—Signatory states hereby find and declare:

1. The environment of every state is affected with local, state, regional and national interests and its protection, under appropriate arrangements for intergovernmental cooperation, is a public purpose of the respective signatories.

2. Certain environmental pollution problems transcend state boundaries and thereby become common to adjacent states requiring cooperative efforts.

3. The environment of each state is subject to the effective control of the signatories, and coordinated, cooperative or joint exercise of control measures is in their common interests.

B. Purposes.—The purposes of the signatories in enacting this compact are:

1. To assist and participate in the national environment protection programs as set forth in federal legislation; to promote intergovernmental cooperation for multistate action relating to environmental protection through interstate agreements; and to encourage cooperative and coordinated environmental protection by the signatories and the Federal Government;

2. To preserve and utilize the functions, powers and duties of existing state agencies of government to the maximum extent possible consistent with the purposes of the compact.

C. Powers of the United States.—

1. Nothing contained in this compact shall impair, affect or extend the constitutional authority of the United States.

2. The signatories hereby recognize the power and right of the Congress of the United States at any time by any statute expressly enacted for that purpose to revise the terms and conditions of its consent.

D. Powers of the states.—Nothing contained in this compact shall impair or extend the constitutional authority of any signatory state, nor shall the police powers of any signatory state be affected except as expressly provided in a supplementary agreement under Article IV.

ARTICLE II

SHORT TITLE, DEFINITIONS, PURPOSES AND LIMITATIONS.—

A. Short title.—This compact shall be known and may be cited as the “Interstate Environmental Compact.”

B. Definitions.—For the purpose of this compact and of any supplemental or concurring legislation enacted pursuant or in relation hereto, except as may be otherwise required by the context:

1. “State” shall mean any one of the 50 states of the United States of America, the Commonwealth of Puerto Rico and the Territory of the Virgin Islands, but shall not include the District of Columbia.

2. “Interstate environment pollution” shall mean any pollution of a stream or body of water crossing or marking a state boundary, interstate air quality control region designated by an appropriate federal agency or solid waste collection and disposal district or program involving the jurisdiction or territories of more than one state.

3. “Government” shall mean the governments of the United States and the signatory states.

4. “Federal Government” shall mean the government of the United States of America and any appropriate department, instrumentality, agency, commission, bureau, division, branch or other unit thereof, as the case may be, but shall not include the District of Columbia.

5. “Signator” shall mean any state which enters into this compact and is a party thereto.

ARTICLE III

INTERGOVERNMENTAL COOPERATION.—

Agreements with the Federal Government and other agencies.—Signatory states are hereby authorized jointly to participate in cooperative or joint undertakings for the protection of the interstate environment with the Federal Government or with any intergovernmental or interstate agencies.

ARTICLE IV

SUPPLEMENTARY AGREEMENTS, JURISDICTION AND ENFORCEMENT.—

A. Signatories may enter into agreements for the purpose of controlling interstate environmental problems in accordance with applicable federal legislation and under terms and conditions as deemed appropriate by the agreeing states under Paragraph F. and Paragraph H. of this Article.

B. Recognition of existing nonenvironmental intergovernmental arrangements.—The signatories agree that existing federal-state, interstate or intergovernmental arrangements which are not primarily directed to environmental protection purposes as defined herein are not affected by this compact.

C. Recognition of existing intergovernmental agreements directed to environmental objectives.—All existing interstate compacts directly relating to environmental protection are hereby expressly recognized and nothing in this compact shall be construed to diminish or supersede the powers and functions of such existing intergovernmental agreements and the organizations created by them.

D. Modification of existing commissions and compacts.—Recognition herein of multistate commissions and compacts shall not be construed to limit directly or indirectly the creation of additional multistate organizations or interstate compacts, nor to prevent termination, modification, extension, or supplementation of such multistate organizations and interstate compacts recognized herein by the Federal Government or states party thereto.

E. Recognition of future multistate commissions and interstate compacts.—Nothing in this compact shall be construed to prevent signatories from entering into multistate organizations or other interstate compacts which do not conflict with their obligations under this compact.

F. Supplementary agreements.—Any two or more signatories may enter into supplementary agreements for joint, coordinated or mutual environmental management activities relating to interstate pollution problems common to the territories of such states and for the establishment of common or joint regulation, management, services, agencies or facilities for such purposes or may designate an appropriate agency to act as their joint agency in regard thereto. No supplementary agreement shall be valid to the extent that it conflicts with the purposes of this compact and the creation of a joint agency by supplementary agreement shall not affect the privileges, powers, responsibilities or duties under this compact of signatories participating therein as embodied in this compact.

G. Execution of supplementary agreements and effective date.—The Governor is authorized to enter into supplementary agreements for the state and his or her official signature shall render the agreement immediately binding upon the state; provided that:

1. The legislature of any signatory entering into such a supplementary agreement shall at its next legislative session by concurrent resolution bring the supplementary agreement before it and by appropriate legislative action approve, reverse, modify or condition the agreement of that state.

2. Nothing in this agreement shall be construed to limit the right of Congress by act of law expressly enacted for that purpose to disapprove or condition such a supplementary agreement.

H. Special supplementary agreements.—Signatories may enter into special supplementary agreements with the District of Columbia or foreign nations for the same purposes and with the same powers as under Paragraph F., Article IV, upon the condition that such nonsignatory party accept the general obligations of signatories under this compact. Provided, that such special supplementary agreements shall become effective only after being consented to by the Congress.

I. Jurisdiction of signatories reserved.—Nothing in this compact or in any supplementary agreement thereunder shall be construed to restrict, relinquish or be in derogation of, any power or authority constitutionally possessed by any signatory within its jurisdiction, except as specifically limited by this compact or a supplementary agreement.

J. Complementary legislation by signatories.—Signatories may enact such additional legislation as may be deemed appropriate to enable its officers and governmental agencies to accomplish effectively the purposes of this compact and supplementary agreements recognized or entered into under the terms of this Article.

K. Legal rights of signatories.—Nothing in this compact shall impair the exercise by any signatory of its legal rights or remedies established by the United States Constitution or any other laws of this nation.

ARTICLE V

CONSTRUCTION, AMENDMENT AND EFFECTIVE DATE.—

A. Construction.—It is the intent of the signatories that no provision of this compact or supplementary agreement entered into hereunder shall be construed as invalidating any provision of law of any signatory and that nothing in this compact shall be construed to modify or qualify the authority of any signatory to enact or enforce environmental protection legislation within its jurisdiction and not inconsistent with any provision of this compact or a supplementary agreement entered into pursuant hereto.

B. Severability.—The provisions of this compact or of agreements hereunder shall be severable and if any phrase, clause, sentence or provisions of this compact, or such an agreement is declared to be contrary to the constitution of any signatory or of the United States or is held invalid, the constitutionality of the remainder of this compact or of any agreement and the applicability thereof to any participating jurisdiction, agency, person or circumstance shall not be affected thereby and shall remain in full force and effect as to the remaining participating jurisdictions and in full force and effect as to the signatory affected as to all severable matters. It is the intent of the signatories that the provisions of this compact shall be reasonably and liberally construed in the context of its purposes.

C. Amendments.—Amendments to this compact may be initiated by legislative action of any signatory and become effective when concurred in by all signatories and approved by Congress.

D. Effective date.—This compact shall become binding on a state when enacted by it into law and such state shall thereafter become a signatory and party hereto with any and all states legally joining herein.

E. Withdrawal from the compact.—A state may withdraw from this compact by authority of an act of its legislature 1 year after it notifies all signatories in writing of an intention to withdraw from the compact. Provided, withdrawal from the compact affects obligations of a signatory imposed on it by supplementary agreements to which it may be a party only to the extent and in accordance with the terms of such supplementary agreements.

History.s. 1, ch. 71-79; s. 13, ch. 97-103.
RESOURCE RECOVERY AND MANAGEMENT
403.702 Legislative findings; public purpose.
403.703 Definitions.
403.7031 Limitations on definitions adopted by local ordinance.
403.7032 Recycling.
403.7033 Departmental analysis of particular recyclable materials.
403.704 Powers and duties of the department.
403.7043 Compost standards and applications.
403.7045 Application of act and integration with other acts.
403.7046 Regulation of recovered materials.
403.7049 Determination of full cost for solid waste management; local solid waste management fees.
403.705 State solid waste management program.
403.7055 Methane capture.
403.706 Local government solid waste responsibilities.
403.70605 Solid waste collection services in competition with private companies.
403.7061 Requirements for review of new waste-to-energy facility capacity by the Department of Environmental Protection.
403.70611 Requirements relating to solid waste disposal facility permitting.
403.7063 Use of private services in solid waste management.
403.7065 Procurement of products or materials with recycled content.
403.707 Permits.
403.7071 Management of storm-generated debris.
403.70715 Research, development, and demonstration permits.
403.7072 Citation of rule.
403.708 Prohibition; penalty.
403.709 Solid Waste Management Trust Fund; use of waste tire fees.
403.7095 Solid waste management grant program.
403.712 Revenue bonds.
403.7125 Financial assurance for closure.
403.713 Ownership and control of solid waste and recovered materials.
403.714 Duties of state agencies.
403.7145 Recycling.
403.715 Certification of resource recovery or recycling equipment.
403.716 Training of operators of solid waste management and other facilities.
403.717 Waste tire and lead-acid battery requirements.
403.718 Waste tire fees.
403.7185 Lead-acid battery fees.
403.71851 Electronic recycling grants.
403.71852 Collection of lead-containing products.
403.7186 Environmentally sound management of mercury-containing devices and lamps.
403.7191 Toxics in packaging.
403.7192 Batteries; requirements for consumer, manufacturers, and sellers; penalties.
403.7193 Environmental representations.
403.72 Identification, listing, and notification.
403.721 Standards, requirements, and procedures for generators and transporters of hazardous waste and owners and operators of hazardous waste facilities.
403.7211 Hazardous waste facilities managing hazardous wastes generated offsite; federal facilities managing hazardous waste.
403.7215 Tax on gross receipts of commercial hazardous waste facilities.
403.722 Permits; hazardous waste disposal, storage, and treatment facilities.
403.7222 Prohibition of hazardous waste landfills.
403.7223 Waste elimination and reduction assistance program.
403.7225 Local hazardous waste management assessments.
403.7226 Technical assistance by the department.
403.723 Siting of hazardous waste facilities.
403.7234 Small quantity generator notification and verification program.
403.7236 Local government information to be sent to the department.
403.7238 Expanded local hazardous waste management programs.
403.724 Financial responsibility.
403.7255 Placement of signs.
403.726 Abatement of imminent hazard caused by hazardous substance.
403.7264 Amnesty days for purging small quantities of hazardous wastes.
403.7265 Local hazardous waste collection program.
403.727 Violations; defenses, penalties, and remedies.
403.728 Qualifications of operation personnel of hazardous waste facilities.
403.73 Trade secrets; confidentiality.
403.74 Management of hazardous materials by governmental agencies.
403.75 Definitions relating to used oil.
403.751 Prohibited actions; used oil.
403.753 Public educational program about collection and recycling of used oil.
403.7531 Notice by retail dealer.
403.754 Registration of persons transporting, processing, burning, or marketing used oil; fees; reports and records.
403.7545 Regulation of used oil as hazardous waste.
403.757 Coordination with other state agencies.
403.758 Enforcement and penalty.
403.759 Disposition of fees, fines, and penalties.
403.760 Public used oil collection centers.
403.761 Incentives program.
403.763 Grants to local governments.
403.767 Certification of used oil transporters.
403.769 Permits for used oil processing and rerefining facilities.
403.7721 Rule of construction; chs. 85-269 and 85-277.
403.702 Legislative findings; public purpose.
(1) In order to enhance the beauty and quality of our environment; conserve and recycle our natural resources; prevent the spread of disease and the creation of nuisances; protect the public health, safety, and welfare; and provide a coordinated statewide solid waste management program, the Legislature finds that:
(a) Inefficient and improper methods of managing solid waste create hazards to public health, cause pollution of air and water resources, constitute a waste of natural resources, have an adverse effect on land values, and create public nuisances.
(b) Problems of solid waste management have become a matter statewide in scope and necessitate state action to assist local government in improving methods and processes to promote more efficient methods of solid waste collection and disposal.
(c) The continuing technological progress and improvements in methods of manufacture, packaging, and marketing of consumer products have resulted in an ever-mounting increase of the mass of material discarded by the purchasers of such products, thereby necessitating a statewide approach to assist local governments around the state with their solid waste management programs.
(d) The economic and population growth of our state and the improvements in the standard of living enjoyed by our population have required increased industrial production together with related commercial and agricultural operations to meet our needs, which have resulted in a rising tide of unwanted and discarded materials.
(e) The failure or inability to economically recover material and energy resources from solid waste results in the unnecessary waste and depletion of our natural resources, and, therefore, maximum resource recovery from solid waste and maximum recycling and reuse of such resources must be considered goals of the state.
(f) Certain solid waste, due to its quantity; concentration; or physical, chemical, biological, or infectious characteristics, is hazardous to human health, safety, and welfare and to the environment, and exceptional attention to the transportation, disposal, storage, and treatment of such waste is necessary to protect human health, safety, and welfare and the environment.
(g) This act should be integrated with other acts and parts of this chapter such that nonhazardous waste discharges currently regulated under this chapter, water or solid waste construction, modification, or operating permits, air emissions, special wastes, and other activities regulated under other more appropriate provisions of law remain in full force and effect and are not preempted by the requirements of this act.
(2) It is declared to be the purpose of this act to:
(a) Plan for and regulate in the most economically feasible, cost-effective, and environmentally safe manner the storage, collection, transport, separation, processing, recycling, and disposal of solid waste in order to protect the public safety, health, and welfare; enhance the environment for the people of this state; and recover resources which have the potential for further usefulness.
(b) Establish and maintain a cooperative state program of planning and technical and financial assistance for solid waste management.
(c) Provide the authority and require counties and municipalities to adequately plan and provide efficient, environmentally acceptable solid waste management and require counties to plan for proper hazardous waste management.
(d) Require review of the design, and issue permits for the construction, operation, and closure of solid waste management facilities.
(e) Promote the application of resource recovery systems which preserve and enhance the quality of air, water, and land resources.
(f) Ensure that hazardous waste is transported, disposed of, stored, and treated in a manner adequate to protect human health, safety, and welfare and the environment.
(g) Promote the reduction, recycling, reuse, or treatment of solid waste, specifically including hazardous waste, in lieu of disposal of such wastes.
(h) Promote the application of methods and technology for the treatment, disposal, and transportation of hazardous wastes which are practical, cost-effective, and economically feasible.
(i) Encourage counties and municipalities to utilize all means reasonably available to promote efficient and proper methods of managing solid waste and to promote the economical recovery of material and energy resources from solid waste, including, but not limited to, contracting with persons to provide or operate resource recovery services or facilities on behalf of the county or municipality.
(j) Promote the education of the general public and the training of solid waste professionals to reduce the production of solid waste, to ensure proper disposal of solid waste, and to encourage recycling.
(k) Encourage the development of waste reduction and recycling as a means of managing solid waste, conserving resources, and supplying energy through planning, grants, technical assistance, and other incentives.
(l) Encourage the development of the state’s recycling industry by promoting the successful development of markets for recycled items and by promoting the acceleration and advancement of the technology used in manufacturing processes that use recycled items.
(m) Require all state agencies to aid and promote the development of recycling through their procurement policies for the general welfare and economy of the state.
(n) Require counties to develop and implement recycling programs within their jurisdictions to return valuable materials to productive use, to conserve energy and natural resources, and to protect capacity at solid waste management facilities.
(o) Ensure that biomedical waste is treated and disposed of in a manner adequate to protect human health, safety, and welfare and the environment.
(p) Require counties, municipalities, and state agencies to determine the full cost for providing, in an environmentally safe manner, storage, collection, transport, separation, processing, recycling, and disposal of solid waste material, and encourage counties, municipalities, and state agencies affected to contract with private persons for any or all such services in order to assure that such services are provided on the most cost-effective basis.
History.s. 1, ch. 74-342; s. 3, ch. 80-302; s. 20, ch. 83-310; s. 30, ch. 84-338; s. 3, ch. 87-107; s. 2, ch. 88-130; s. 7, ch. 93-207; s. 2, ch. 96-284.
403.703 Definitions.As used in this part, the term:
(1) “Ash residue” has the same meaning as in the department rule governing solid waste combustors which defines the term.
(2) “Biomedical waste” means any solid waste or liquid waste that may present a threat of infection to humans. The term includes, but is not limited to, nonliquid human tissue and body parts; laboratory and veterinary waste that contains human-disease-causing agents; discarded disposable sharps; human blood and human blood products and body fluids; and other materials that in the opinion of the Department of Health represent a significant risk of infection to persons outside the generating facility. The term does not include human remains that are disposed of by persons licensed under chapter 497.
(3) “Biological waste” means solid waste that causes or has the capability of causing disease or infection and includes, but is not limited to, biomedical waste, diseased or dead animals, and other wastes capable of transmitting pathogens to humans or animals. The term does not include human remains that are disposed of by persons licensed under chapter 497.
(4) “Clean debris” means any solid waste that is virtually inert, that is not a pollution threat to groundwater or surface waters, that is not a fire hazard, and that is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes uncontaminated concrete, including embedded pipe or steel, brick, glass, ceramics, and other wastes designated by the department.
(5) “Closure” means the cessation of operation of a solid waste management facility and the act of securing such facility so that it will pose no significant threat to human health or the environment and includes long-term monitoring and maintenance of a facility if required by department rule.
(6) “Construction and demolition debris” means discarded materials generally considered to be not water-soluble and nonhazardous in nature, including, but not limited to, steel, glass, brick, concrete, asphalt roofing material, pipe, gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, and includes rocks, soils, tree remains, trees, and other vegetative matter that normally results from land clearing or land development operations for a construction project, including such debris from construction of structures at a site remote from the construction or demolition project site. Mixing of construction and demolition debris with other types of solid waste will cause the resulting mixture to be classified as other than construction and demolition debris. The term also includes:
(a) Clean cardboard, paper, plastic, wood, and metal scraps from a construction project;
(b) Except as provided in s. 403.707(9)(j), yard trash and unpainted, nontreated wood scraps and wood pallets from sources other than construction or demolition projects;
(c) Scrap from manufacturing facilities which is the type of material generally used in construction projects and which would meet the definition of construction and demolition debris if it were generated as part of a construction or demolition project. This includes debris from the construction of manufactured homes and scrap shingles, wallboard, siding concrete, and similar materials from industrial or commercial facilities; and
(d) De minimis amounts of other nonhazardous wastes that are generated at construction or destruction projects, provided such amounts are consistent with best management practices of the industry.
(7) “County,” or any like term, means a political subdivision of the state established pursuant to s. 1, Art. VIII of the State Constitution and, when s. 403.706(19) applies, means a special district or other entity.
(8) “Department” means the Department of Environmental Protection or any successor agency performing a like function.
(9) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or upon any land or water so that such solid waste or hazardous waste or any constituent thereof may enter other lands or be emitted into the air or discharged into any waters, including groundwaters, or otherwise enter the environment.
(10) “Generation” means the act or process of producing solid or hazardous waste.
(11) “Guarantor” means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this part.
(12) “Hazardous substance” means any substance that is defined as a hazardous substance in the United States Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767.
(13) “Hazardous waste” means solid waste, or a combination of solid wastes, which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or may pose a substantial present or potential hazard to human health or the environment when improperly transported, disposed of, stored, treated, or otherwise managed. The term does not include human remains that are disposed of by persons licensed under chapter 497.
(14) “Hazardous waste facility” means any building, site, structure, or equipment at or by which hazardous waste is disposed of, stored, or treated.
(15) “Hazardous waste management” means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, recycling, and disposal of hazardous waste.
(16) “Land disposal” means any placement of hazardous waste in or on the land and includes, but is not limited to, placement in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt bed formation, salt dome formation, or underground mine or cave, or placement in a concrete vault or bunker intended for disposal purposes.
(17) “Landfill” means any solid waste land disposal area for which a permit, other than a general permit, is required by s. 403.707 and which receives solid waste for disposal in or upon land. The term does not include a land-spreading site, an injection well, a surface impoundment, or a facility for the disposal of construction and demolition debris.
(18) “Manifest” means the recordkeeping system used for identifying the concentration, quantity, composition, origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, storage, or treatment.
(19) “Materials recovery facility” means a solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for use as a fuel or soil amendment, or any combination of such materials.
(20) “Municipality,” or any like term, means a municipality created pursuant to general or special law authorized or recognized pursuant to s. 2 or s. 6, Art. VIII of the State Constitution and, when s. 403.706(19) applies, means a special district or other entity.
(21) “Operation,” with respect to any solid waste management facility, means the disposal, storage, or processing of solid waste at and by the facility.
(22) “Person” means any and all persons, natural or artificial, including any individual, firm, or association; any municipal or private corporation organized or existing under the laws of this state or any other state; any county of this state; and any governmental agency of this state or the Federal Government.
(23) “Processing” means any technique designed to change the physical, chemical, or biological character or composition of any solid waste so as to render it safe for transport; amenable to recovery, storage, or recycling; safe for disposal; or reduced in volume or concentration.
(24) “Recovered materials” means metal, paper, glass, plastic, textile, or rubber materials that have known recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the solid waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but the term does not include materials destined for any use that constitutes disposal. Recovered materials as described in this subsection are not solid waste.
(25) “Recovered materials processing facility” means a facility engaged solely in the storage, processing, resale, or reuse of recovered materials. Such a facility is not a solid waste management facility if it meets the conditions of s. 403.7045(1)(e).
(26) “Recyclable material” means those materials that are capable of being recycled and that would otherwise be processed or disposed of as solid waste.
(27) “Recycling” means any process by which solid waste, or materials that would otherwise become solid waste, are collected, separated, or processed and reused or returned to use in the form of raw materials or products.
(28) “Resource recovery” means the process of recovering materials or energy from solid waste, excluding those materials or solid waste under the control of the Nuclear Regulatory Commission.
(29) “Resource recovery equipment” means equipment or machinery exclusively and integrally used in the actual process of recovering material or energy resources from solid waste.
(30) “Sludge” includes the accumulated solids, residues, and precipitates generated as a result of waste treatment or processing, including wastewater treatment, water supply treatment, or operation of an air pollution control facility, and mixed liquids and solids pumped from septic tanks, grease traps, privies, or similar waste disposal appurtenances.
(31) “Special wastes” means solid wastes that can require special handling and management, including, but not limited to, white goods, waste tires, used oil, lead-acid batteries, construction and demolition debris, ash residue, yard trash, and biological wastes.
(32) “Solid waste” means sludge unregulated under the federal Clean Water Act or Clean Air Act, sludge from a waste treatment works, water supply treatment plant, or air pollution control facility, or garbage, rubbish, refuse, special waste, or other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. Recovered materials as defined in subsection (24) are not solid waste.
(33) “Solid waste disposal facility” means any solid waste management facility that is the final resting place for solid waste, including landfills and incineration facilities that produce ash from the process of incinerating municipal solid waste.
(34) “Solid waste management” means the process by which solid waste is collected, transported, stored, separated, processed, or disposed of in any other way according to an orderly, purposeful, and planned program, which includes closure.
(35) “Solid waste management facility” means any solid waste disposal area, volume reduction plant, transfer station, materials recovery facility, or other facility, the purpose of which is resource recovery or the disposal, recycling, processing, or storage of solid waste. The term does not include recovered materials processing facilities that meet the requirements of s. 403.7046, except the portion of such facilities, if any, which is used for the management of solid waste.
(36) “Source separated” means that the recovered materials are separated from solid waste at the location where the recovered materials and solid waste are generated. The term does not require that various types of recovered materials be separated from each other, and recognizes de minimis solid waste, in accordance with industry standards and practices, may be included in the recovered materials. Materials are not considered source separated when two or more types of recovered materials are deposited in combination with each other in a commercial collection container located where the materials are generated and when such materials contain more than 10 percent solid waste by volume or weight. For purposes of this subsection, the term “various types of recovered materials” means metals, paper, glass, plastic, textiles, and rubber.
(37) “Storage” means the containment or holding of a hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste.
(38) “Transfer station” means a site the primary purpose of which is to store or hold solid waste for transport to a processing or disposal facility.
(39) “Transport” means the movement of hazardous waste from the point of generation or point of entry into the state to any offsite intermediate points and to the point of offsite ultimate disposal, storage, treatment, or exit from the state.
(40) “Treatment,” when used in connection with hazardous waste, means any method, technique, or process, including neutralization, which is designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize it or render it nonhazardous, safe for transport, amenable to recovery, amenable to storage or disposal, or reduced in volume or concentration. The term includes any activity or processing that is designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous.
(41) “Volume reduction plant” includes incinerators, pulverizers, compactors, shredding and baling plants, composting plants, and other plants that accept and process solid waste for recycling or disposal.
(42) “White goods” includes discarded air conditioners, heaters, refrigerators, ranges, water heaters, freezers, and other similar domestic and commercial large appliances.
(43) “Yard trash” means vegetative matter resulting from landscaping maintenance and land clearing operations and includes associated rocks and soils.
History.s. 1, ch. 74-342; s. 2, ch. 78-329; s. 1, ch. 78-387; s. 84, ch. 79-65; s. 4, ch. 80-302; s. 1, ch. 81-45; s. 267, ch. 81-259; s. 31, ch. 83-310; s. 33, ch. 84-338; s. 31, ch. 86-186; s. 3, ch. 88-130; s. 67, ch. 90-331; s. 2, ch. 92-104; s. 8, ch. 93-207; s. 394, ch. 94-356; s. 1, ch. 96-381; s. 54, ch. 97-237; s. 160, ch. 99-8; s. 30, ch. 2000-153; s. 18, ch. 2000-211; s. 1, ch. 2000-221; s. 2, ch. 2002-291; s. 139, ch. 2004-301; s. 6, ch. 2007-184.
403.7031 Limitations on definitions adopted by local ordinance.A county or a municipality shall not adopt by ordinance any definition that is inconsistent with the definitions in s. 403.703.
History.s. 9, ch. 93-207.
403.7032 Recycling.
(1) The Legislature finds that the failure or inability to economically recover material and energy resources from solid waste results in the unnecessary waste and depletion of our natural resources. As the state continues to grow, so will the potential amount of discarded material that must be treated and disposed of, necessitating the improvement of solid waste collection and disposal. Therefore, the maximum recycling and reuse of such resources are considered high-priority goals of the state.
(2) By the year 2020, the long-term goal for the recycling efforts of state and local governmental entities, private companies and organizations, and the general public is to recycle at least 75 percent of the municipal solid waste that would otherwise be disposed of in waste management facilities, landfills, or incineration facilities. However, any solid waste used for the production of renewable energy shall count toward the long-term recycling goal as set forth in this part.
(3) Each state agency, K-12 public school, public institution of higher learning, community college, and state university, including all buildings that are occupied by municipal, county, or state employees and entities occupying buildings managed by the Department of Management Services, must, at a minimum, annually report all recycled materials to the county using the department’s designated reporting format. Private businesses, other than certified recovered materials dealers, that recycle paper, metals, glass, plastics, textiles, rubber materials, and mulch, are encouraged to report the amount of materials they recycle to the county annually beginning January 1, 2011, using the department’s designated reporting format. Using the information provided, the department shall recognize those private businesses that demonstrate outstanding recycling efforts. Notwithstanding any other provision of state or county law, private businesses, other than certified recovered materials dealers, shall not be required to report recycling rates. Cities with less than a population of 2,500 and per capita taxable value less than $48,000 and cities with a per capita taxable value less than $30,000 are exempt from the reporting requirement specified in this subsection.
(4) The Department of Environmental Protection shall develop a comprehensive recycling program that is designed to achieve the percentage under subsection (2) and submit the program to the President of the Senate and the Speaker of the House of Representatives by January 1, 2010. The program may not be implemented until approved by the Legislature. The program must be developed in coordination with input from state and local entities, private businesses, and the public. Under the program, recyclable materials shall include, but are not limited to, metals, paper, glass, plastic, textile, rubber materials, and mulch. Components of the program shall include, but are not limited to:
(a) Programs to identify environmentally preferable purchasing practices to encourage the purchase of recycled, durable, and less toxic goods. The Department of Management Services shall modify its procurement system to report on green and recycled products purchased through the system by September 30, 2011.
(b) Programs to educate students in grades K-12 in the benefits of, and proper techniques for, recycling.
(c) Programs for statewide recognition of successful recycling efforts by schools, businesses, public groups, and private citizens.
(d) Programs for municipalities and counties to develop and implement efficient recycling efforts to return valuable materials to productive use, conserve energy, and protect natural resources.
(e) Programs by which the department can provide technical assistance to municipalities and counties in support of their recycling efforts.
(f) Programs to educate and train the public in proper recycling efforts.
(g) Evaluation of how financial assistance can best be provided to municipalities and counties in support of their recycling efforts.
(h) Evaluation of why existing waste management and recycling programs in the state have not been better used.
(5) The Department of Environmental Protection shall create the Recycling Business Assistance Center by December 1, 2010. In carrying out its duties under this subsection, the department shall consult with state agency personnel appointed to serve as economic development liaisons under s. 288.021 and seek technical assistance from Enterprise Florida, Inc., to ensure the Recycling Business Assistance Center is positioned to succeed. The purpose of the center shall be to serve as the mechanism for coordination among state agencies and the private sector in order to coordinate policy and overall strategic planning for developing new markets and expanding and enhancing existing markets for recyclable materials in this state, other states, and foreign countries. The duties of the center must include, at a minimum:
(a) Identifying and developing new markets and expanding and enhancing existing markets for recyclable materials.
(b) Pursuing expanded end uses for recycled materials.
(c) Targeting materials for concentrated market development efforts.
(d) Developing proposals for new incentives for market development, particularly focusing on targeted materials.
(e) Providing guidance on issues such as permitting, finance options for recycling market development, site location, research and development, grant program criteria for recycled materials markets, recycling markets education and information, and minimum content.
(f) Coordinating the efforts of various governmental entities having market development responsibilities in order to optimize supply and demand for recyclable materials.
(g) Evaluating source-reduced products as they relate to state procurement policy. The evaluation shall include, but is not limited to, the environmental and economic impact of source-reduced product purchases to the state. For the purposes of this paragraph, the term “source-reduced” means any method, process, product, or technology that significantly or substantially reduces the volume or weight of a product while providing, at a minimum, equivalent or generally similar performance and service to and for the users of such materials.
(h) Providing evaluation of solid waste management grants, pursuant to s. 403.7095, to reduce the flow of solid waste to disposal facilities and encourage the sustainable recovery of materials from Florida’s waste stream.
(i) Providing below-market financing for companies that manufacture products from recycled materials or convert recyclable materials into raw materials for use in manufacturing pursuant to the Florida Recycling Loan Program as administered by the Florida First Capital Finance Corporation.
(j) Maintaining a continuously updated online directory listing the public and private entities that collect, transport, broker, process, or remanufacture recyclable materials in the state.
(k) Providing information on the availability and benefits of using recycled materials to private entities and industries in the state.
(l) Distributing any materials prepared in implementing this subsection to the public, private entities, industries, governmental entities, or other organizations upon request.
(m) Coordinating with the Department of Economic Opportunity and its partners to provide job placement and job training services to job seekers through the state’s workforce services programs.
History.s. 95, ch. 2008-227; s. 3, ch. 2010-143; s. 31, ch. 2011-4; s. 293, ch. 2011-142.
403.7033 Departmental analysis of particular recyclable materials.The Legislature finds that prudent regulation of recyclable materials is crucial to the ongoing welfare of Florida’s ecology and economy. As such, the Department of Environmental Protection shall undertake an analysis of the need for new or different regulation of auxiliary containers, wrappings, or disposable plastic bags used by consumers to carry products from retail establishments. The analysis shall include input from state and local government agencies, stakeholders, private businesses, and citizens, and shall evaluate the efficacy and necessity of both statewide and local regulation of these materials. To ensure consistent and effective implementation, the department shall submit a report with conclusions and recommendations to the Legislature no later than February 1, 2010. Until such time that the Legislature adopts the recommendations of the department, no local government, local governmental agency, or state government agency may enact any rule, regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of such auxiliary containers, wrappings, or disposable plastic bags.
History.s. 96, ch. 2008-227.
403.704 Powers and duties of the department.The department shall have responsibility for the implementation and enforcement of this act. In addition to other powers and duties, the department shall:
(1) Develop and implement, in consultation with local governments, a state solid waste management program, as defined in s. 403.705.
(2) Provide technical assistance to counties, municipalities, and other persons, and cooperate with appropriate federal agencies and private organizations in carrying out this act.
(3) Promote the planning and application of recycling and resource recovery systems which preserve and enhance the quality of the air, water, and other natural resources of the state and assist in and encourage, where appropriate, the development of regional solid waste management facilities.
(4) Serve as the official state representative for all purposes of the federal Solid Waste Disposal Act, as amended by Pub. L. No. 91-512, or as subsequently amended.
(5) Use private industry or the State University System through contractual arrangements for implementation of some or all of the requirements of the state solid waste management program and for such other activities as may be considered necessary, desirable, or convenient.
(6) Encourage recycling and resource recovery as a source of energy and materials.
(7) Assist in and encourage, as much as possible, the development within the state of industries and commercial enterprises which are based upon resource recovery, recycling, and reuse of solid waste.
(8) Determine by rule the facilities, equipment, personnel, and number of monitoring wells to be provided at each solid waste disposal facility.
(9) Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement and enforce this act, including requirements for the classification, construction, operation, maintenance, and closure of solid waste management facilities and requirements for, and conditions on, solid waste disposal in this state, whether such solid waste is generated within this state or outside this state as long as such requirements and conditions are not based on the out-of-state origin of the waste and are consistent with applicable law. When classifying solid waste management facilities, the department shall consider the hydrogeology of the site for the facility, the types of wastes to be handled by the facility, and methods used to control the types of waste to be handled by the facility and shall seek to minimize the adverse effects of solid waste management on the environment. Whenever the department adopts any rule stricter or more stringent than one that has been set by the United States Environmental Protection Agency, the procedures set forth in s. 403.804(2) shall be followed. The department shall not, however, adopt hazardous waste rules for solid waste for which special studies were required prior to October 1, 1988, under s. 8002 of the Resource Conservation and Recovery Act, 42 U.S.C. s. 6982, as amended, until the studies are completed by the United States Environmental Protection Agency and the information is available to the department for consideration in adopting its own rule.
(10) Issue or modify permits on such conditions as are necessary to effect the intent and purposes of this act, and may deny or revoke permits.
(11) Develop and implement or contract for services to develop information on recovered materials markets and strategies for market development and expansion for use of these materials. Additionally, the department shall maintain a directory of recycling businesses operating in the state and shall serve as a coordinator to match recovered materials with markets. Such directory shall be made available to the public and to local governments to assist with their solid waste management activities.
(12) Establish accounts and deposit to the Solid Waste Management Trust Fund and control and administer moneys it may withdraw from the fund.
(13) Manage a program of grants, using funds from the Solid Waste Management Trust Fund and funds provided by the Legislature for solid waste management, for programs for recycling, composting, litter control, and special waste management and for programs that provide for the safe and proper management of solid waste.
(14) Budget and receive appropriated funds and accept, receive, and administer grants or other funds or gifts from public or private agencies, including the state and the Federal Government, for the purpose of carrying out this act.
(15) Delegate its powers, enter into contracts, or take such other actions as may be necessary to implement this act.
(16) Receive and administer funds appropriated for county hazardous waste management assessments.
(17) Provide technical assistance to local governments and regional agencies to ensure consistency between county hazardous waste management assessments; coordinate the development of such assessments with the assistance of the appropriate regional planning councils; and review and make recommendations to the Legislature relative to the sufficiency of the assessments to meet state hazardous waste management needs.
(18) Increase public education and public awareness of solid and hazardous waste issues by developing and promoting statewide programs of litter control, recycling, volume reduction, and proper methods of solid waste and hazardous waste management.
(19) Assist the hazardous waste storage, treatment, or disposal industry by providing to the industry any data produced on the types and quantities of hazardous waste generated.
(20) Institute a hazardous waste emergency response program which would include emergency telecommunication capabilities and coordination with appropriate agencies.
(21) Adopt rules necessary to accept delegation of the hazardous waste management program from the Environmental Protection Agency under the Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616.
(22) Adopt rules, if necessary, to address the incineration and disposal of biomedical waste and the management of biological waste within the state, whether such waste is generated within this state or outside this state, as long as such requirements and conditions are not based on the out-of-state origin of the waste and are consistent with applicable provisions of law.
History.s. 1, ch. 74-342; s. 1, ch. 75-54; s. 2, ch. 78-387; s. 5, ch. 80-302; ss. 21, 32, ch. 83-310; s. 31, ch. 84-338; s. 32, ch. 86-186; s. 6, ch. 88-130; s. 10, ch. 93-207; s. 3, ch. 96-284; s. 67, ch. 96-321; s. 104, ch. 98-200; s. 7, ch. 2007-184.
403.7043 Compost standards and applications.
(1) In order to protect the state’s land and water resources, compost produced, utilized, or disposed of by the composting process at solid waste management facilities in the state must meet criteria established by the department.
(2) The department shall establish and maintain rules addressing standards for the production of compost, including rules establishing:
(a) Requirements necessary to produce hygienically safe compost products for varying applications.
(b) A classification scheme for compost based on the types of waste composted, the maturity of the compost, and the levels of organic and inorganic constituents in the compost. This scheme shall address:
1. Methods for measurement of the compost maturity.
2. Particle sizes.
3. Moisture content.
4. Average levels of organic and inorganic constituents, including heavy metals, for such classes of compost as the department establishes, and the analytical methods to determine those levels.
History.s. 7, ch. 88-130; s. 38, ch. 99-5; s. 86, ch. 2007-5; s. 8, ch. 2007-184.
403.7045 Application of act and integration with other acts.
(1) The following wastes or activities shall not be regulated pursuant to this act:
(a) Byproduct material, source material, and special nuclear material, the generation, transportation, disposal, storage, or treatment of which is regulated under chapter 404 or the federal Atomic Energy Act of 1954, ch. 1073, 68 Stat. 923, as amended;
(b) Suspended solids and dissolved materials in domestic sewage effluent or irrigation return flows or other discharges which are point sources subject to permits pursuant to this chapter or s. 402 of the Clean Water Act, Pub. L. No. 95-217;
(c) Emissions to the air from a stationary installation or source regulated under this chapter or the Clean Air Act, Pub. L. No. 95-95;
(d) Drilling fluids, produced waters, and other wastes associated with the exploration for, or development and production of, crude oil or natural gas which are regulated under chapter 377; or
(e) Recovered materials or recovered materials processing facilities, except as provided in s. 403.7046, if:
1. A majority of the recovered materials at the facility are demonstrated to be sold, used, or reused within 1 year.
2. The recovered materials handled by the facility or the products or byproducts of operations that process recovered materials are not discharged, deposited, injected, dumped, spilled, leaked, or placed into or upon any land or water by the owner or operator of such facility so that such recovered materials, products or byproducts, or any constituent thereof may enter other lands or be emitted into the air or discharged into any waters, including groundwaters, or otherwise enter the environment such that a threat of contamination in excess of applicable department standards and criteria is caused.
3. The recovered materials handled by the facility are not hazardous wastes as defined under s. 403.703, and rules promulgated pursuant thereto.
4. The facility is registered as required in s. 403.7046.
(f) Industrial byproducts, if:
1. A majority of the industrial byproducts are demonstrated to be sold, used, or reused within 1 year.
2. The industrial byproducts are not discharged, deposited, injected, dumped, spilled, leaked, or placed upon any land or water so that such industrial byproducts, or any constituent thereof, may enter other lands or be emitted into the air or discharged into any waters, including groundwaters, or otherwise enter the environment such that a threat of contamination in excess of applicable department standards and criteria or a significant threat to public health is caused.
3. The industrial byproducts are not hazardous wastes as defined under s. 403.703 and rules adopted under this section.
(2) Except as provided in s. 403.704(9), the following wastes shall not be regulated as a hazardous waste pursuant to this act, except when determined by the United States Environmental Protection Agency to be a hazardous waste:
(a) Ashes and scrubber sludges generated from the burning of boiler fuel for generation of electricity or steam.
(b) Agricultural and silvicultural byproduct material and agricultural and silvicultural process waste from normal farming or processing.
(c) Discarded material generated by the mining and beneficiation and chemical or thermal processing of phosphate rock, and precipitates resulting from neutralization of phosphate chemical plant process and nonprocess waters.
(3) The following wastes or activities shall be regulated pursuant to this act in the following manner:
(a) Dredged material that is generated as part of a project permitted under part IV of chapter 373 or chapter 161, or that is authorized to be removed from sovereign submerged lands under chapter 253, shall be managed in accordance with the conditions of that permit or authorization unless the dredged material is regulated as hazardous waste pursuant to this part. If the dredged material contains hazardous substances, the department may further limit or restrict the disposal, sale, or use of the dredged material and may specify such other conditions relative to this material as are reasonably necessary to protect the public from the potential hazards. However, this paragraph does not require the routine testing of dredge material for hazardous substances unless there is a reasonable expectation that such substances will be present.
(b) Hazardous wastes that are contained in artificial recharge waters or other waters intentionally introduced into any underground formation and that are permitted pursuant to s. 373.106 shall also be handled in compliance with the requirements and standards for disposal, storage, and treatment of hazardous waste under this act.
(c) Solid waste or hazardous waste facilities that are operated as a part of the normal operation of a power generating facility and which are licensed by certification pursuant to the Florida Electrical Power Plant Siting Act, ss. 403.501-403.518, shall undergo such certification subject to the substantive provisions of this act.
(d) Biomedical waste and biological waste shall be disposed of only as authorized by the department. However, any person who unknowingly disposes into a sanitary landfill or waste-to-energy facility any such waste that has not been properly segregated or separated from other solid wastes by the generating facility is not guilty of a violation under this act. This paragraph does not prohibit the department from seeking injunctive relief pursuant to s. 403.131 to prohibit the unauthorized disposal of biomedical waste or biological waste.
(4) Disposal of dead animals, including those which were diseased, shall be consistent with applicable federal and state laws and regulations.
(5) Ash residue generated by a solid waste management facility from the burning of solid waste must be disposed of in a properly designed solid waste disposal area that complies with standards developed by the department for the disposal of such ash residue. The department shall work with solid waste management facilities that burn solid waste to identify and develop methods for recycling and reuse of ash residue or treated ash residue, and the department may allow such recycling or reuse by an applicant who demonstrates that no significant threat to public health will result and that applicable department standards and criteria will not be violated. The Division of Waste Management shall direct the district offices and bureaus on matters relating to the interpretation and applicability of this subsection. The department may adopt rules necessary for administering this subsection, but the department is not required to amend its existing rules.
History.s. 6, ch. 80-302; s. 3, ch. 82-125; s. 28, ch. 83-215; s. 62, ch. 83-218; s. 8, ch. 88-130; s. 55, ch. 90-331; s. 11, ch. 93-207; s. 125, ch. 97-237; s. 1, ch. 98-112; s. 9, ch. 2007-184.
403.7046 Regulation of recovered materials.
(1) Any person who handles, purchases, receives, recovers, sells, or is an end user of recovered materials shall annually certify to the department on forms provided by the department. The department may by rule exempt from this requirement generators of recovered materials; persons who handle or sell recovered materials as an activity which is incidental to the normal primary business activities of that person; or persons who handle, purchase, receive, recover, sell, or are end users of recovered materials in small quantities as defined by the department. The department shall adopt rules for the certification of and reporting by such persons and shall establish criteria for revocation of such certification. Such rules shall be designed to elicit, at a minimum, the amount and types of recovered materials handled by registrants, and the amount and disposal site, or name of person with whom such disposal was arranged, of any solid waste generated by such facility. By February 1 of each year, registrants shall report all required information to the department and to all counties from which it received materials. Such rules may provide for the department to conduct periodic inspections. The department may charge a fee of up to $50 for each registration, which shall be deposited into the Solid Waste Management Trust Fund for implementation of the program.
(2) Information reported pursuant to the requirements of this section or any rule adopted pursuant to this section which, if disclosed, would reveal a trade secret, as defined in s. 812.081(1)(c), is confidential and exempt from the provisions of s. 119.07(1). For reporting or information purposes, however, the department may provide this information in such form that the names of the persons reporting such information and the specific information reported are not revealed.
(3) Except as otherwise provided in this section or pursuant to a special act in effect on or before January 1, 1993, a local government may not require a commercial establishment that generates source-separated recovered materials to sell or otherwise convey its recovered materials to the local government or to a facility designated by the local government, nor may the local government restrict such a generator’s right to sell or otherwise convey such recovered materials to any properly certified recovered materials dealer who has satisfied the requirements of this section. A local government may not enact any ordinance that prevents such a dealer from entering into a contract with a commercial establishment to purchase, collect, transport, process, or receive source-separated recovered materials.
(a) The local government may require that the recovered materials generated at the commercial establishment be source separated at the premises of the commercial establishment.
(b) Prior to engaging in business within the jurisdiction of the local government, a recovered materials dealer must provide the local government with a copy of the certification provided for in this section. In addition, the local government may establish a registration process whereby a recovered materials dealer must register with the local government prior to engaging in business within the jurisdiction of the local government. Such registration process is limited to requiring the dealer to register its name, including the owner or operator of the dealer, and, if the dealer is a business entity, its general or limited partners, its corporate officers and directors, its permanent place of business, evidence of its certification under this section, and a certification that the recovered materials will be processed at a recovered materials processing facility satisfying the requirements of this section. All counties, and municipalities whose population exceeds 35,000 according to the population estimates determined pursuant to s. 186.901, may establish a reporting process which shall be limited to the regulations, reporting format, and reporting frequency established by the department pursuant to this section, which shall, at a minimum, include requiring the dealer to identify the types and approximate amount of recovered materials collected, recycled, or reused during the reporting period; the approximate percentage of recovered materials reused, stored, or delivered to a recovered materials processing facility or disposed of in a solid waste disposal facility; and the locations where any recovered materials were disposed of as solid waste. Information reported under this subsection which, if disclosed, would reveal a trade secret, as defined in s. 812.081(1)(c), is confidential and exempt from the provisions of s. 24(a), Art. I of the State Constitution and s. 119.07(1). The local government may charge the dealer a registration fee commensurate with and no greater than the cost incurred by the local government in operating its registration program. Registration program costs are limited to those costs associated with the activities described in this paragraph. Any reporting or registration process established by a local government with regard to recovered materials shall be governed by the provisions of this section and department rules promulgated pursuant thereto.
(c) A local government may establish a process in which the local government may temporarily or permanently revoke the authority of a recovered materials dealer to do business within the local government if the local government finds the recovered materials dealer, after reasonable notice of the charges and an opportunity to be heard by an impartial party, has consistently and repeatedly violated state or local laws, ordinances, rules, and regulations.
(d) In addition to any other authority provided by law, a local government is hereby expressly authorized to prohibit a person or entity not certified under this section from doing business within the jurisdiction of the local government; to enter into a nonexclusive franchise or to otherwise provide for the collection, transportation, and processing of recovered materials at commercial establishments, provided that a local government may not require a certified recovered materials dealer to enter into such franchise agreement in order to enter into a contract with any commercial establishment located within the local government’s jurisdiction to purchase, collect, transport, process, or receive source-separated recovered materials; and to enter into an exclusive franchise or to otherwise provide for the exclusive collection, transportation, and processing of recovered materials at single-family or multifamily residential properties.
(e) Nothing in this section shall prohibit a local government from enacting ordinances designed to protect the public’s general health, safety, and welfare.
(f) As used in this section:
1. “Commercial establishment” means a property or properties zoned or used for commercial or industrial uses, or used by an entity exempt from taxation under s. 501(c)(3) of the Internal Revenue Code, and excludes property or properties zoned or used for single-family residential or multifamily residential uses.
2. “Local government” means a county or municipality.
3. “Certified recovered materials dealer” means a dealer certified under this section.
History.s. 12, ch. 93-207; s. 5, ch. 95-311; s. 2, ch. 95-366; s. 240, ch. 96-406; s. 17, ch. 2000-211; s. 5, ch. 2000-304; s. 4, ch. 2010-143.
403.7049 Determination of full cost for solid waste management; local solid waste management fees.
(1) Each county and each municipality shall determine each year the full cost for solid waste management within the service area of the county or municipality. The department shall establish by rule the method for local governments to use in calculating full cost. In developing the rule, the department shall examine the feasibility of the use of an enterprise fund process by local governments in operating their solid waste management systems.
(2)(a) Each municipality shall establish a system to inform, no less than once a year, residential and nonresidential users of solid waste management services within the municipality’s service area of the user’s share, on an average or individual basis, of the full cost for solid waste management as determined pursuant to subsection (1). Counties shall provide the information required of municipalities only to residential and nonresidential users of solid waste management services within the county’s service area that are not served by a municipality. Municipalities shall include costs charged to them or persons contracting with them for disposal of solid waste in the full cost information provided to residential and nonresidential users of solid waste management services.
(b) Counties and municipalities are encouraged to operate their solid waste management systems through use of an enterprise fund.
(3) For purposes of this section, “service area” means the area in which the county or municipality provides, directly or by contract, solid waste management services. The provisions of this section shall not be construed to require a person operating under a franchise agreement to collect or dispose of solid waste within the service area of a county or municipality to make the calculations or to establish a system to provide the information required under this section, unless such person agrees to do so as part of such franchise agreement.
(4) Each county and each municipality which provides solid waste collection services, either through its own operations or by contract, is encouraged to charge fees to each residential and nonresidential user of the solid waste collection service which vary based upon the volume or weight of solid waste that is collected from each user.
(5) In order to assist in achieving the municipal solid waste reduction goal and the recycling provisions of s. 403.706(2), a county or a municipality which owns or operates a solid waste management facility is hereby authorized to charge solid waste disposal fees which may vary based on a number of factors, including, but not limited to, the amount, characteristics, and form of recyclable materials present in the solid waste that is brought to the county’s or the municipality’s facility for processing or disposal.
(6) In addition to all other fees required or allowed by law, a county or a municipality, at the discretion of its governing body, may impose a fee for the services the county or municipality provides with regard to the collection, processing, or disposal of solid waste, to be used for developing and implementing a recycling program. For such fees, the local governing body of any county or municipality may use the non-ad valorem levy, collection, and enforcement method as provided for in chapter 197.
(7) This section does not prohibit a county, municipality, or other person from providing grants, loans, or other aid to low-income persons to pay part or all of the costs of such persons’ solid waste management services.
History.s. 9, ch. 88-130; s. 13, ch. 93-207; s. 19, ch. 2000-211; s. 5, ch. 2010-143.
403.705 State solid waste management program.
(1) The state solid waste management program shall:
(a) Provide guidelines for the orderly storage, separation, processing, recovery, recycling, and disposal of solid waste throughout the state;
(b) Encourage coordinated local activity for solid waste management within a common geographical area;
(c) Investigate the present status of solid waste management in the state with positive proposals for local action to correct deficiencies in present solid waste management processes;
(d) Provide planning, technical, and financial assistance to local governments and state agencies for reduction, recycling, reuse, and processing of solid waste and for safe and environmentally sound solid waste management and disposal;
(e) Assist in the development of solid waste reduction and recycling programs to properly manage solid waste and conserve resources; and
(f) Provide for the education of the general public and the training of solid waste management professionals to reduce the production of solid waste, to ensure proper processing and disposal of solid waste, and to encourage recycling and solid waste reduction.
(2) The state solid waste management program shall include, at a minimum:
(a) Procedures and requirements to ensure cooperative efforts in solid waste management by counties and municipalities and groups of counties and municipalities where appropriate.
(b) Provisions for the continuation of existing effective regional resource recovery, recycling, and solid waste management facilities and programs.
(c) Planning guidelines and technical assistance to counties and municipalities to aid in meeting the municipal solid waste recycling goals established in s. 403.706(2).
(d) Planning guidelines and technical assistance to counties and municipalities to develop and implement recycling programs.
(e) Technical assistance to counties and municipalities in determining the full cost for solid waste management pursuant to s. 403.7049(1).
(f) Planning guidelines and technical assistance to counties and municipalities to develop and implement programs for alternative disposal or processing or recycling of the solid wastes prohibited from disposal in landfills under s. 403.708(12) and for special wastes.
(g) A public education program, to be developed in cooperation with the Department of Education, local governments, other state agencies, and business and industry organizations, to inform the public of the need for and the benefits of recycling of solid waste and reducing the amounts of solid and hazardous waste generated and disposed of in the state. The public education program shall be implemented through public workshops and through the use of brochures, reports, public service announcements, and other materials.
(3) The department shall evaluate and report biennially to the President of the Senate and the Speaker of the House of Representatives on the state’s success in meeting the solid waste recycling goal as described in s. 403.706(2).
(4) The department shall adopt rules creating a voluntary certification program for materials recovery facilities. The certification criteria shall be based upon the amount and type of materials recycled and the compliance record of the facility and may vary depending on the location in the state and the available markets for the materials that are processed. Any materials recovery facility seeking certification shall file an application to modify its permit, or shall include a certification application as part of its original permit application, which application shall not require an additional fee. The department shall adopt a form for certification applications, and shall require at least annual reports to verify the continued qualification for certification. In order to assist in the development of the certification program, the department shall appoint a technical advisory committee.
History.s. 1, ch. 74-342; s. 2, ch. 75-54; s. 10, ch. 88-130; s. 14, ch. 93-207; s. 395, ch. 94-356; s. 56, ch. 95-144; s. 31, ch. 2000-153; s. 3, ch. 2002-291; s. 10, ch. 2007-184; s. 6, ch. 2010-143.
403.7055 Methane capture.
(1) Each county is encouraged to form multicounty regional solutions to the capture and reuse or sale of methane gas from landfills and wastewater treatment facilities.
(2) The department shall provide planning guidelines and technical assistance to each county to develop and implement such multicounty efforts.
History.s. 94, ch. 2008-227.
403.706 Local government solid waste responsibilities.
(1) The governing body of a county has the responsibility and power to provide for the operation of solid waste disposal facilities to meet the needs of all incorporated and unincorporated areas of the county. Unless otherwise approved by an interlocal agreement or special act, municipalities may not operate solid waste disposal facilities unless a municipality demonstrates by a preponderance of the evidence that the use of a county designated facility, when compared to alternatives proposed by the municipality, places a significantly higher and disproportionate financial burden on the citizens of the municipality when compared to the financial burden placed on persons residing within the county but outside of the municipality. However, a municipality may construct and operate a resource recovery facility and related onsite solid waste disposal facilities without an interlocal agreement with the county if the municipality can demonstrate by a preponderance of the evidence that the operation of such facility will not significantly impair financial commitments made by the county with respect to solid waste management services and facilities or result in significantly increased solid waste management costs to the remaining persons residing within the county but not served by the municipality’s facility. This section shall not prevent a municipality from continuing to operate or use an existing disposal facility permitted on or prior to October 1, 1988. Any municipality which establishes a solid waste disposal facility under this subsection and subsequently abandons such facility shall be responsible for the payment of any capital expansion necessary to accommodate the municipality’s solid waste for the remaining projected useful life of the county disposal facility. Pursuant to this section and notwithstanding any other provision of this chapter, counties shall have the power and authority to adopt ordinances governing the disposal of solid waste generated outside of the county at the county’s solid waste disposal facility. In accordance with this section, municipalities are responsible for collecting and transporting solid waste from their jurisdictions to a solid waste disposal facility operated by a county or operated under a contract with a county. Counties may charge reasonable fees for the handling and disposal of solid waste at their facilities. The fees charged to municipalities at a solid waste management facility specified by the county shall not be greater than the fees charged to other users of the facility except as provided in s. 403.7049(5). Solid waste management fees collected on a countywide basis shall be used to fund solid waste management services provided countywide.
(2)(a) Each county shall implement a recyclable materials recycling program that shall have a goal of recycling recyclable solid waste by 40 percent by December 31, 2012; 50 percent by December 31, 2014; 60 percent by December 31, 2016; 70 percent by December 31, 2018; and 75 percent by December 31, 2020. Counties and municipalities are encouraged to form cooperative arrangements for implementing recycling programs.
(b) In order to assist counties in attaining the goals set forth in paragraph (a), the Legislature finds that the recycling of construction and demolition debris fulfills an important state interest. Therefore, each county must implement a program for recycling construction and demolition debris.
(c) In accordance with applicable local government ordinances, newly developed property receiving a certificate of occupancy, or its equivalent, on or after July 1, 2012, that is used for multifamily residential or commercial purposes, must provide adequate space and an adequate receptacle for recycling by tenants and owners of the property. This provision is limited to counties and municipalities that have an established residential, including multifamily, or commercial recycling program that provides recycling receptacles to residences and businesses and regular pickup services for those receptacles.
(d) If, by January 1 of 2013, 2015, 2017, 2019, or 2021, the county, as determined by the department in accordance with applicable rules, has not reached the recycling goals as set forth in paragraph (a), the department may direct the county to develop a plan to expand recycling programs to existing commercial and multifamily dwellings, including, but not limited to, apartment complexes.
(e) If the state’s recycling rate for the 2013 calendar year is below 40 percent; below 50 percent by January 1, 2015; below 60 percent by January 1, 2017; below 70 percent by January 1, 2019; or below 75 percent by January 1, 2021, the department shall provide a report to the President of the Senate and the Speaker of the House of Representatives. The report shall identify those additional programs or statutory changes needed to achieve the goals set forth in paragraph (a). The report shall be provided no later than 30 days prior to the beginning of the regular session of the Legislature. The department is not required to provide a report to the Legislature if the state reaches its recycling goals as described in this paragraph.
(f) Such programs shall be designed to recover a significant portion of at least four of the following materials from the solid waste stream prior to final disposal at a solid waste disposal facility and to offer these materials for recycling: newspaper, aluminum cans, steel cans, glass, plastic bottles, cardboard, office paper, and yard trash. Local governments which operate permitted waste-to-energy facilities may retrieve ferrous and nonferrous metal as a byproduct of combustion.
(g) Local governments are encouraged to separate all plastics, metal, and all grades of paper for recycling prior to final disposal and are further encouraged to recycle yard trash and other mechanically treated solid waste into compost available for agricultural and other acceptable uses.
(h) The department shall adopt rules establishing the method and criteria to be used by a county in calculating the recycling rates pursuant to this subsection.
(i) Each county is encouraged to consider plans for composting or mulching organic materials that would otherwise be disposed of in a landfill. The composting or mulching plans are encouraged to address partnership with the private sector.
(3) Each county shall ensure, to the maximum extent possible, that municipalities within its boundaries participate in the preparation and implementation of recycling and solid waste management programs through interlocal agreements pursuant to s. 163.01 or other means provided by law. Nothing in a county’s solid waste management or recycling program shall affect the authority of a municipality to franchise or otherwise provide for the collection of solid waste generated within the boundaries of the municipality.
(4)(a) In order to promote the production of renewable energy from solid waste, each megawatt-hour produced by a renewable energy facility using solid waste as a fuel shall count as 1 ton of recycled material and shall be applied toward meeting the recycling goals set forth in this section. If a county creating renewable energy from solid waste implements and maintains a program to recycle at least 50 percent of municipal solid waste by a means other than creating renewable energy, that county shall count 2 tons of recycled material for each megawatt-hour produced. If waste originates from a county other than the county in which the renewable energy facility resides, the originating county shall receive such recycling credit. Any county that has a debt service payment related to its waste-to-energy facility shall receive 1 ton of recycled materials credit for each ton of solid waste processed at the facility. Any byproduct resulting from the creation of renewable energy does not count as waste.
(b) A county may receive credit for one-half of the recycling goal set forth in subsection (2) from the use of yard trash, or other clean wood waste or paper waste, in innovative programs including, but not limited to, programs that produce alternative clean-burning fuels such as ethanol or that provide for the conversion of yard trash or other clean wood waste or paper waste to clean-burning fuel for the production of energy for use at facilities other than a waste-to-energy facility as defined in s. 403.7061. The provisions of this paragraph apply only if a county can demonstrate that:
1. The county has implemented a yard trash mulching or composting program, and
2. As part of the program, compost and mulch made from yard trash is available to the general public and in use at county-owned or maintained and municipally owned or maintained facilities in the county and state agencies operating in the county as required by this section.
(c) A county with a population of 100,000 or less may provide its residents with the opportunity to recycle in lieu of achieving the goal set forth in this section. For the purposes of this section, the “opportunity to recycle” means that the county:
1.a. Provides a system for separating and collecting recyclable materials prior to disposal that is located at a solid waste management facility or solid waste disposal area; or
b. Provides a system of places within the county for collection of source-separated recyclable materials.
2. Provides a public education and promotion program that is conducted to inform its residents of the opportunity to recycle, encourages source separation of recyclable materials, and promotes the benefits of reducing, reusing, recycling, and composting materials.
(5) As used in this section, “municipal solid waste” includes any solid waste, except for sludge, resulting from the operation of residential, commercial, governmental, or institutional establishments that would normally be collected, processed, and disposed of through a public or private solid waste management service. The term includes yard trash but does not include solid waste from industrial, mining, or agricultural operations.
(6) The department may reduce or modify the municipal solid waste recycling goal that a county is required to achieve pursuant to subsection (2) if the county demonstrates to the department that:
(a) The achievement of the goal set forth in subsection (2) would have an adverse effect on the financial obligations of a county that are directly related to a waste-to-energy facility owned or operated by or on behalf of the county; and
(b) The county cannot remove normally combustible materials from solid waste that is to be processed at a waste-to-energy facility because of the need to maintain a sufficient amount of solid waste to ensure the financial viability of the facility.The goal shall not be waived entirely and may only be reduced or modified to the extent necessary to alleviate the adverse effects of achieving the goal on the financial viability of a county’s waste-to-energy facility. Nothing in this subsection shall exempt a county from developing and implementing a recycling program pursuant to this act.
(7) In order to assess the progress in meeting the goal set forth in subsection (2), each county shall, by April 1 each year, provide information to the department regarding its annual solid waste management program and recycling activities.
(a) The information submitted to the department by the county must, at a minimum, include:
1. The amount of municipal solid waste disposed of at solid waste disposal facilities, by type of waste such as yard trash, white goods, clean debris, tires, and unseparated solid waste;
2. The amount and type of materials from the municipal solid waste stream that were recycled; and
3. The percentage of the population participating in various types of recycling activities instituted.
(b) Beginning with the data for the 2012 calendar year, the department shall by July 1 each year post on its website the recycling rates of each county for the prior calendar year.
(8) A county or municipality may enter into a written agreement with other persons, including persons transporting solid waste on October 1, 1988, to undertake to fulfill some or all of the county’s or municipality’s responsibilities under this section.
(9) In the development and implementation of a curbside recyclable materials collection program, a county or municipality shall enter into negotiations with a franchisee who is operating to exclusively collect solid waste within a service area of a county or municipality to undertake curbside recyclable materials collection responsibilities for a county or municipality. If the county or municipality and such franchisee fail to reach an agreement within 60 days from the initiation of such negotiations, the county or municipality may solicit proposals from other persons to undertake curbside recyclable materials collection responsibilities for the county or municipality as it may require. Upon the determination of the lowest responsible proposal, the county or municipality may undertake, or enter into a written agreement with the person who submitted the lowest responsible proposal to undertake, the curbside recyclable materials collection responsibilities for the county or municipality, notwithstanding the exclusivity of such franchise agreement.
(10) In developing and implementing recycling programs, counties and municipalities shall give consideration to the collection, marketing, and disposition of recyclable materials by persons engaged in the business of recycling, whether or not the persons are operating for profit. Counties and municipalities are encouraged to use for-profit and nonprofit organizations in fulfilling their responsibilities under this act.
(11) A county and the municipalities within the county’s boundaries may jointly develop a recycling program, provided that the county and each such municipality must enter into a written agreement to jointly develop a recycling program. If a municipality does not participate in jointly developing a recycling program with the county within which it is located, the county may require the municipality to provide information on recycling efforts undertaken within the boundaries of the municipality in order to determine whether the goal for municipal solid waste reduction is being achieved.
(12) It is the policy of the state that a county and its municipalities may jointly determine, through an interlocal agreement pursuant to s. 163.01 or by requesting the passage of special legislation, which local governmental agency shall administer a solid waste management or recycling program.
(13) The county shall provide written notice to all municipalities within the county when recycling program development begins and shall provide periodic written progress reports to the municipalities concerning the preparation of the recycling program.
(14) Nothing in this act shall be construed to prevent the governing body of any county or municipality from providing by ordinance or regulation for solid waste management requirements which are stricter or more extensive than those imposed by the state solid waste management program and rules, regulations, and orders issued thereunder.
(15) Nothing in this act or in any rule adopted by any agency shall be construed to require any county or municipality to participate in any regional solid waste management or regional resource recovery program until the governing body of such county or municipality has determined that participation in such a program is economically feasible for that county or municipality. Nothing in this act or in any special or local act or in any rule adopted by any agency shall be construed to limit the authority of a municipality to regulate the disposal of solid waste within its boundaries or generated within its boundaries so long as a facility for any such disposal has been approved by the department, unless the municipality is included within a solid waste management program created by interlocal agreement or special or local act. If bonds had been issued to finance a resource recovery or management program or a solid waste management program in reliance on state law granting to a county the responsibility for the resource recovery or management program or a solid waste management program, nothing herein shall permit any governmental agency to withdraw from said program if said agency’s participation is necessary for the financial feasibility of the project, so long as said bonds are outstanding.
(16) Nothing in this chapter or in any rule adopted by any state agency hereunder shall require any person to subscribe to any private solid waste collection service.
(17) To effect the purposes of this part, counties and municipalities are authorized, in addition to other powers granted pursuant to this part:
(a) To contract with persons to provide resource recovery services or operate r