Florida Senate - 2009                             CS for SB 1004
       
       
       
       By the Committee on Environmental Preservation and Conservation;
       and Senator Constantine
       
       
       
       592-03356-09                                          20091004c1
    1                        A bill to be entitled                      
    2         An act relating to coral reefs; amending s. 380.0558,
    3         F.S.; revising definitions; providing that moneys in
    4         the Ecosystem Management and Restoration Trust Fund
    5         within the Department of Environmental Protection
    6         received from damages recovered for injury to coral
    7         reefs are expended to pay for alternative projects
    8         selected by the department as staff to the Board of
    9         Trustees of the Internal Improvement Trust Fund;
   10         creating s. 380.29, F.S.; providing a short title;
   11         providing definitions; providing legislative intent;
   12         requiring responsible parties to notify the department
   13         if their vessel runs aground or damages a coral reef;
   14         requiring the responsible party to remove the vessel;
   15         requiring the responsible party to cooperate with the
   16         department to assess the damage and restore the coral
   17         reef; authorizing the department to recover damages
   18         from the responsible party; authorizing the department
   19         to use a certain method to calculate compensation for
   20         damage of coral reefs; authorizing the department to
   21         assess civil penalties; authorizing the department to
   22         enter into delegation agreements; authorizing the
   23         department to adopt rules; amending s. 403.1651, F.S.;
   24         authorizing the department to enter into settlement
   25         agreements that require responsible parties to pay
   26         another government entity or nonprofit organization to
   27         fund projects consistent with the conservation or
   28         protection of coral reefs; repealing s. 253.04, F.S.,
   29         relating to the duty of Board of Trustees of the
   30         Internal Improvement Trust Fund to protect state
   31         lands; providing an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Paragraphs (a) and (d) of subsection (1) and
   36  paragraph (c) of subsection (5) of section 380.0558, Florida
   37  Statutes, are amended to read:
   38         380.0558 Coral reef restoration.—
   39         (1) DEFINITIONS.—As used in this section, the term:
   40         (a) “Coral reefs” means:
   41         1.Limestone structures composed in whole or in part of
   42  living stony corals, their skeletal remains, or both, and
   43  hosting other coral, associated benthic invertebrates, and
   44  plants; or
   45         2.Hard-bottom communities, also known as live bottom
   46  habitat or colonized pavement, characterized by the presence of
   47  stony coral and associated reef organisms or worm reefs created
   48  by the Phragmatopoma species the assemblage of corals and other
   49  organisms that are actively building three-dimensional reef
   50  structures off the southern coast of Florida.
   51         (d) “Natural resources” means land, air, water,
   52  groundwater, drinking water supplies, fish and their habitats,
   53  wildlife and their habitats, biota, and other such resources
   54  belonging to, managed by, held in trust by, appertaining to, or
   55  otherwise controlled by the state State of Florida and situated
   56  in an area of critical state concern or offshore from an area of
   57  critical state concern.
   58         (5) TRUST FUND EXPENDITURES.—Moneys in the fund received
   59  from damages recovered for injury to, or destruction of, coral
   60  reefs or natural resources shall be expended only for the
   61  following purposes:
   62         (c) To pay for alternative projects selected by the
   63  Department of Environmental Protection as staff to the Board of
   64  Trustees of the Internal Improvement Trust Fund. Any such
   65  project shall be selected on the basis of its anticipated
   66  benefits to the residents of this state who used the injured or
   67  destroyed coral reefs or other natural resources or will benefit
   68  from the alternative project.
   69         Section 2. Section 380.29, Florida Statutes, is created to
   70  read:
   71         380.29Coral reef protection.—
   72         (1)This section may be cited as the “Florida Coral Reef
   73  Protection Act.”
   74         (2)As used in this section, the term:
   75         (a)“Aggravating circumstances” means operating, anchoring,
   76  or mooring a vessel in a reckless or wanton manner; under the
   77  influence of drugs or alcohol; or otherwise with disregard for
   78  boating regulations concerning speed, navigation, or safe
   79  operation.
   80         (b)“Coral” means species of the phylum Cnidaria found in
   81  state waters including:
   82         1.Class Anthozoa, including the subclass Octocorallia,
   83  commonly known as gorgonians, soft corals, and telestaceans; and
   84         2.Orders Scleractinia, commonly known as stony corals;
   85  Stolonifera, including, among others, the organisms commonly
   86  known as organ-pipe corals; Antipatharia, commonly known as
   87  black corals; and Hydrozoa, including the family Millaporidae
   88  and family Stylasteridae, commonly known as hydrocoral.
   89         (c)“Coral reefs” mean:
   90         1.Limestone structures composed wholly or partially of
   91  living stony corals, their skeletal remains, or both, and
   92  hosting other coral, associated benthic invertebrates, and
   93  plants; or
   94         2.Hard-bottom communities, also known as live bottom
   95  habitat or colonized pavement, characterized by the presence of
   96  stony coral and associated reef organisms or worm reefs created
   97  by the Phragmatopoma species.
   98         (d)“Damages” means moneys paid by any person or entity,
   99  whether voluntarily or as a result of administrative or judicial
  100  action, to the state as compensation, restitution, penalty, or
  101  mitigation for causing injury to or destruction of coral reefs.
  102         (e)“Department” means the Department of Environmental
  103  Protection.
  104         (f)“Responsible party” means the owner, operator, manager,
  105  or insurer of any vessel.
  106         (3)The Legislature finds that coral reefs are valuable
  107  natural resources that contribute ecologically, aesthetically,
  108  and economically to the state. Therefore, the Legislature
  109  declares it is in the best interest of the state to clarify the
  110  department’s powers and authority to protect coral reefs through
  111  timely and efficient recovery of monetary damages resulting from
  112  vessel groundings and anchoring-related injuries. It is the
  113  intent of the Legislature that the department, as staff to the
  114  Board of Trustees of the Internal Improvement Trust Fund and by
  115  virtue of its own regulatory powers, be recognized as the
  116  state’s lead trustee for coral reef resources associated with
  117  sovereignty submerged lands unless preempted by federal law.
  118  This section does not divest other state agencies and political
  119  subdivisions of the state of their interests in protecting coral
  120  reefs.
  121         (4)The responsible party who knows or should know that
  122  their vessel has run aground, struck, or otherwise damaged coral
  123  reefs must notify the department of such an event within 24
  124  hours after its occurrence. Unless otherwise prohibited or
  125  restricted by the United States Coast Guard, the responsible
  126  party shall remove or cause the removal of the grounded or
  127  anchored vessel within 72 hours after the initial grounding or
  128  anchoring absent extenuating circumstances, such as weather, sea
  129  state, or hazards that would prevent safe removal of the vessel.
  130  The responsible party shall remove or cause the removal of the
  131  vessel or its anchor in a manner that avoids further damage to
  132  coral reefs and shall consult with the department to accomplish
  133  this task. The responsible party shall cooperate with the
  134  department to undertake damage assessment and primary
  135  restoration of the coral reef in a timely fashion.
  136         (5)In any action or suit initiated pursuant to chapter 253
  137  or chapter 403 for damage to coral reefs, the department, acting
  138  on its own behalf or on the behalf of the Board of Trustees of
  139  the Internal Improvement Trust Fund, as appropriate, may recover
  140  all damages from the responsible party, including, but not
  141  limited to:
  142         (a)Compensation for the cost of replacing, restoring, or
  143  acquiring the equivalent of the coral reef injured and the value
  144  of the lost use and services of the coral reef pending its
  145  restoration, replacement or acquisition of the equivalent coral
  146  reef, or the value of the coral reef if the coral reef cannot be
  147  restored or replaced or if the equivalent cannot be acquired.
  148         (b)The cost of damage assessments, including staff time.
  149         (c)The cost of activities undertaken by or at the request
  150  of the department to minimize or prevent further injury to coral
  151  or coral reefs pending restoration, replacement, or acquisition
  152  of an equivalent.
  153         (d)The reasonable cost of monitoring the injured,
  154  restored, or replaced coral reef for at least 10 years.
  155         (e)The cost of enforcement actions undertaken in response
  156  to the destruction or loss of or injury to a coral reef,
  157  including court costs, attorney’s fees, and expert witness fees.
  158         (6)The department may use habitat equivalency analysis as
  159  the method by which the compensation described in subsection (5)
  160  is calculated. The parameters for calculation by this method may
  161  be prescribed by rule adopted by the department.
  162         (7)In addition to the compensation described in subsection
  163  (5), the department may assess, per occurrence, civil penalties
  164  according the following schedule:
  165         (a)For failure to notify the department in accordance with
  166  subsection (4), $500.
  167         (b)For any anchoring of a vessel on a coral reef on
  168  sovereignty submerged lands or for any other damage to a coral
  169  reef totaling less than or equal to an area of 1 square meter,
  170  $150; with aggravating circumstances, an additional $150;
  171  occurring within a state park or aquatic preserve, an additional
  172  $150.
  173         (c)For damage totaling more than an area of 1 square meter
  174  but less than or equal to an area of 10 square meters, $300 per
  175  square meter; with aggravating circumstances, an additional $300
  176  per square meter; occurring within a state park or aquatic
  177  preserve, an additional $300 per square meter.
  178         (d)For damage exceeding an area of 10 square meters,
  179  $1,000 per square meter; with aggravating circumstances, an
  180  additional $1,000 per square meter; occurring within a state
  181  park or aquatic preserve, an additional $1,000 per square meter.
  182         (e)For a second violation, the total penalty may be
  183  doubled.
  184         (f)For a third violation, the total penalty may be
  185  tripled.
  186         (g)For any violation after a third violation, the total
  187  penalty may be quadrupled.
  188         (h)The total of penalties levied may not exceed $250,000
  189  per occurrence.
  190         (8)To carry out the intent of this section, the department
  191  may enter into delegation agreements with another state agency
  192  or any coastal county with coral reefs within its jurisdiction.
  193  In deciding to execute such agreements, the department must
  194  consider the ability of the potential delegee to adequately and
  195  competently perform the duties required to fulfill the intent of
  196  this section. When such agreements are executed by the parties
  197  and incorporated in department rule, the delegee shall have all
  198  rights accorded the department by this section. Nothing herein
  199  shall be construed to require the department, another state
  200  agency, or a coastal county to enter into such an agreement.
  201         (9) Nothing in this section shall be construed to prevent
  202  the department or other state agencies from entering into
  203  agreements with federal authorities related to the
  204  administration of the Florida Keys National Marine Sanctuary.
  205         (10)The department may adopt rules pursuant to ss. 120.536
  206  and 120.54 to administer this section.
  207         Section 3. Paragraph (b) of subsection (2) of section
  208  403.1651, Florida Statutes, is amended to read:
  209         403.1651 Ecosystem Management and Restoration Trust Fund.—
  210         (2) The trust fund shall be used for the deposit of all
  211  moneys recovered by the state:
  212         (b) For injury to or destruction of coral reefs, which
  213  moneys would otherwise be deposited into the General Revenue
  214  Fund or the Internal Improvement Trust Fund. The department may
  215  enter into settlement agreements that require responsible
  216  parties to pay a third party to fund projects related to the
  217  restoration of a coral reef, to accomplish mitigation for injury
  218  to a coral reef, or to support the activities of law enforcement
  219  agencies related to coral reef injury response, investigation
  220  and assessment. Participation of a law enforcement agency in the
  221  receipt of funds through this mechanism shall be at the law
  222  enforcement agency’s discretion
  223         Section 4. Subsection (3) of section 253.04, Florida
  224  Statutes, is repealed.
  225         Section 5. This act shall take effect July 1, 2009.