House Bill hb1591e1

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                                       CS/HB 1591, First Engrossed



  1                      A bill to be entitled

  2         An act relating to Florida's coasts and public

  3         beaches; amending s. 380.20, F.S.; revising

  4         those sections of Florida Statutes which

  5         comprise the Florida Coastal Management Act;

  6         amending s. 380.205, F.S.; providing

  7         definitions; transferring the state coastal

  8         management program functions from the

  9         Department of Community Affairs to the

10         Department of Environmental Protection;

11         amending s. 380.21, F.S.; clarifying

12         legislative intent for the Coastal Zone

13         Management Program; amending s. 380.22, F.S.;

14         clarifying the duties and authority of the lead

15         agency; amending s. 380.23, F.S.; clarifying

16         procedures for the granting or denial of a

17         state license for a federally licensed or

18         permitted activity; amending s. 380.285, F.S.;

19         authorizing the Department of Environmental

20         Protection to assist in the study,

21         preservation, and funding of lighthouses on the

22         Florida coast; transferring the powers, duties,

23         functions, rules, records, personnel, property,

24         and unexpended balances of appropriations,

25         allocations, and other funds of the Coastal

26         Management Program from the Department of

27         Community Affairs to the Department of

28         Environmental Protection by type two transfer;

29         amending s. 403.061, F.S.; allowing the

30         Department of Environmental Protection to serve

31         as the single point of contact for performing


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                                       CS/HB 1591, First Engrossed



  1         specified responsibilities, including

  2         administration and operation of the Florida

  3         State Clearinghouse; creating s. 380.276, F.S.;

  4         providing for a cooperative effort among state

  5         agencies and local governments to plan for and

  6         assist in the display of uniform warning and

  7         safety flags and the placement of specified

  8         uniform notification signs; providing that the

  9         Department of Environmental Protection shall

10         direct and coordinate a program for the display

11         and placement of such flags and signs;

12         providing for the development of the program;

13         providing program components and requirements;

14         authorizing the department to coordinate the

15         implementation of the program with specified

16         entities; providing for rules; limiting the

17         liability of participating governmental

18         entities; providing an effective date.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  Section 380.20, Florida Statutes, is

23  amended to read:

24         380.20  Short title.--Sections 380.205-380.27

25  380.205-380.24 may be cited as the "Florida Coastal Management

26  Act."

27         Section 2.  Section 380.205, Florida Statutes, is

28  amended to read:

29         380.205  Definitions.--As used in ss. 380.205-380.27

30  380.21-380.24:

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                                       CS/HB 1591, First Engrossed



  1         (1)  "Department" means the Department of Environmental

  2  Protection Community Affairs.

  3         (2)  "Coastal zone" means that area of land and water

  4  from the territorial limits seaward to the most inland extent

  5  of marine influences. However, for planning and developing

  6  coordinated projects and initiatives for coastal resource

  7  protection and management, the department shall consider the

  8  coastal zone to be the geographical area encompassed by the 35

  9  Florida coastal counties listed in the Final Environmental

10  Impact Statement for the Florida Coastal Management Program

11  and the adjoining territorial sea.  It is not the intent of

12  this definition to limit the authority currently exercised

13  under the federal law and the federally approved Florida

14  Coastal Management Program by which projects landward and

15  seaward of the 35 coastal counties are reviewed for

16  consistency with the Florida Coastal Management Program.

17         (3)  "Coastal Zone Management Act" means the Coastal

18  Zone Management Act of 1972, as amended (16 U.S.C. 1451-1464).

19         Section 3.  Subsections (1), (2), and (3) of section

20  380.21, Florida Statutes, are amended to read:

21         380.21  Legislative intent.--

22         (1)  The Legislature finds that:

23         (a)  The coast is rich in a variety of natural,

24  commercial, recreational, ecological, industrial, and

25  aesthetic resources, including, but not limited to, "energy

26  facilities," as that term is defined in s. 304(5) of the

27  federal Coastal Zone Management Act of 1972, of immediate

28  potential value to the present and future well-being of the

29  residents of this state.

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                                       CS/HB 1591, First Engrossed



  1         (b)  It is in the state and national interest to

  2  protect, maintain, and develop these resources through

  3  coordinated management.

  4         (c)  State land and water management policies should,

  5  to the maximum possible extent, be implemented by local

  6  governments through existing processes for the guidance of

  7  growth and development.

  8         (2)  The Legislature therefore grants authorization for

  9  the department to maintain and update compile a program based

10  on existing statutes and existing rules and submit

11  applications an application to the appropriate federal agency

12  as a basis for receiving administrative funds under the

13  federal Coastal Zone Management Act of 1972.  It is the

14  further intent of the Legislature that enactment of this

15  legislation shall not amend existing statutes or provide

16  additional regulatory authority to any governmental body

17  except as otherwise provided by s. 380.23.  The enactment of

18  this legislation shall not in any other way affect any

19  existing statutory or regulatory authority.

20         (3)(a)  The Legislature finds that the coastal zone is

21  rich in a variety of natural, commercial, recreational,

22  ecological, industrial, and aesthetic resources of immediate

23  and potential value to the present and future well-being of

24  the residents of this state which will be irretrievably lost

25  or damaged if not properly managed. The participation by

26  citizens of the state is will be an important factor in

27  developing, adopting, amending, and implementing a program

28  plan for management of the coastal zone, and management of the

29  state's coastal zone requires will require a highly

30  coordinated effort among state, regional, and local officials

31  and agencies.


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                                       CS/HB 1591, First Engrossed



  1         (b)  The state coastal zone management program plan

  2  shall be a part of the state comprehensive plan.  It shall

  3  contain each of the program elements a boundary, policies,

  4  goals, and programs necessary to comply with the requirements

  5  of the federal Coastal Zone Management Act of 1972, as amended

  6  (16 U.S.C. ss. 1451-1464), specifically delineating the role

  7  of state, regional, and local agencies in implementing the

  8  program plan; and it shall provide that the appeal of any

  9  regulatory decision, other than those appeals provided for by

10  existing law, shall be to the Governor and Cabinet.

11         Section 4.  Section 380.22, Florida Statutes, is

12  amended to read:

13         380.22  Lead agency authority and duties.--

14         (1)  The department shall be the lead agency pursuant

15  to the Coastal Zone Management Act 16 U.S.C. ss. 1451 et seq.,

16  and shall compile and submit to the appropriate federal agency

17  applications an application to receive funds pursuant to the

18  s. 306 of the federal Coastal Zone Management Act of 1972, as

19  amended (16 U.S.C. ss. 1451-1464). The application for federal

20  approval of the state's program shall include program policies

21  that only reference existing statutes and existing

22  implementing administrative rules.  In the event the

23  application or the program submitted pursuant to this

24  subsection is rejected by the appropriate federal agency

25  because of failure of this act, the existing statutes, or the

26  existing implementing administrative rules to comply with the

27  requirements of the federal Coastal Zone Management Act of

28  1972, as amended, no state coastal management program shall

29  become effective without prior legislative approval. The

30  coastal management application or program may be amended from

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                                       CS/HB 1591, First Engrossed



  1  time to time to include changes in statutes and rules adopted

  2  pursuant to statutory authority other than this act.

  3         (2)  The department shall also have authority to:

  4         (a)  Establish advisory councils with sufficient

  5  geographic balance to ensure statewide representation.

  6         (b)  Coordinate central files and clearinghouse

  7  procedures for coastal resource data information and encourage

  8  the use of compatible information and standards.

  9         (c)  Provide to the extent practicable financial,

10  technical, research, and legal assistance to effectuate the

11  purposes of this act.

12         (d)  Review rules of other affected agencies to

13  determine consistency with the program and to report any

14  inconsistencies to the Legislature.

15         (3)  The department shall adopt by rule procedures and

16  criteria for the evaluation of subgrant applications that seek

17  to receive a portion of those funds allotted to the state

18  under the federal Coastal Zone Management Act.

19         (4)  The department shall establish a county-based

20  process for identifying, and setting priorities for acquiring,

21  coastal properties in coordination with the Land Acquisition

22  and Restoration Management Advisory Council, or its successor,

23  so these properties may be acquired as part of the state's

24  land acquisition programs. This process shall include the

25  establishment of criteria for prioritizing coastal

26  acquisitions which, in addition to recognizing pristine

27  coastal properties and coastal properties of significant or

28  important environmental sensitivity, recognize hazard

29  mitigation, beach access, beach management, urban recreation,

30  and other policies necessary for effective coastal management.

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                                       CS/HB 1591, First Engrossed



  1         (5)  In addition to other criteria established by

  2  statute or rule, the following criteria shall be considered

  3  when establishing priorities for public acquisition of coastal

  4  property:

  5         (a)  The value of acquiring coastal high-hazard

  6  parcels, consistent with hazard mitigation and postdisaster

  7  redevelopment policies, in order to minimize the risk to life

  8  and property and to reduce the need for future disaster

  9  assistance.

10         (b)  The value of acquiring beachfront parcels,

11  irrespective of size, to provide public access and

12  recreational opportunities in highly developed urban areas.

13         (c)  The value of acquiring identified parcels the

14  development of which would adversely affect coastal resources.

15         (6)  The department, in coordination with the Florida

16  Coastal Management Citizen's Advisory Committee, shall develop

17  and implement a strategy to enhance citizen awareness and

18  involvement in Florida's coastal management programs.

19         Section 5.  Section 380.23, Florida Statutes, is

20  amended to read:

21         380.23  Federal consistency.--

22         (1)  When a federally licensed or permitted an activity

23  requires a permit or license subject to federal consistency

24  review requires a state license, the issuance or renewal of a

25  state license shall automatically constitute the state's

26  concurrence that the licensed activity or use, as licensed, is

27  consistent with the federally approved program.  When a

28  federally licensed or permitted an activity requires a permit

29  or license subject to federal consistency review requires a

30  state license, the denial of a state license shall

31  automatically constitute the state's finding that the proposed


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                                       CS/HB 1591, First Engrossed



  1  activity or use is not consistent with the state's federally

  2  approved program, unless the United States Secretary of

  3  Commerce determines that such activity or use is in the

  4  national interest as provided in the federal Coastal Zone

  5  Management Act of 1972.

  6         (2)(a)  Where federal licenses, permits, activities,

  7  and projects listed in subsection (3) are subject to federal

  8  consistency review and are seaward of the jurisdiction of the

  9  state, or there is no state agency with sole jurisdiction, the

10  department shall be responsible for the consistency review and

11  determination; however, the department shall not make a

12  determination that the license, permit, activity, or project

13  is consistent if any other state agency with significant

14  analogous responsibility makes a determination of

15  inconsistency.  All decisions and determinations under this

16  subsection shall be appealable to the Governor and Cabinet.

17         (b)  However, effective October 1, 1992, if a finding

18  or recommendation of inconsistency has been made by a state

19  agency with regard to federal activities and projects listed

20  under paragraphs (3)(a) and (b) and the inconsistency cannot

21  be resolved by the department, the department shall refer such

22  finding or recommendation to the Governor for final

23  determination.  The Governor shall review the comments,

24  findings, or recommendations of all participating agencies and

25  shall affirm the finding or recommendation of inconsistency

26  unless the Governor determines that the federal activity or

27  project is consistent with the enforceable social, economic,

28  and environmental policies of the coastal management program.

29  Any permitting, licensing, or proprietary authority of an

30  agency shall not be preempted or otherwise limited by any

31  provision of this paragraph.  Consistency determinations made


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                                       CS/HB 1591, First Engrossed



  1  pursuant to this paragraph shall not be appealable to the

  2  Governor or Cabinet.

  3         (3)  Consistency review shall be limited to review of

  4  the following activities, uses, and projects to ensure that

  5  such activities and uses are conducted in accordance with the

  6  state's coastal management program:

  7         (a)  Federal development projects and activities of

  8  federal agencies which significantly affect coastal waters and

  9  the adjacent shorelands of the state.

10         (b)  Federal assistance projects which significantly

11  affect coastal waters and the adjacent shorelands of the state

12  and which are reviewed as part of the review process developed

13  pursuant to Presidential Executive Order 12372 OMB Circular

14  A-95.

15         (c)  Federally licensed or permitted activities

16  affecting land or water uses when such activities are in or

17  seaward of the jurisdiction of local governments required to

18  develop a coastal zone protection element as provided in s.

19  380.24 and when such activities involve:

20         1.  Permits and licenses required under ss. 10 and 11

21  of the Rivers and Harbors Act of 1899, 33 U.S.C. ss. 401 et

22  seq., as amended.

23         2.  Permits and licenses required under s. 103 of the

24  Marine Protection, Research and Sanctuaries Act of 1972, 33

25  U.S.C. ss. 1401-1445 and 16 U.S.C. ss. 1431-1445, as amended.

26         3.  Permits and licenses required under ss. 201, 402,

27  403, 404, and 405 of the Federal Water Pollution Control Act

28  of 1972, 33 U.S.C. ss. 1251 et seq., as amended, unless such

29  permitting activities pursuant to such sections have been

30  delegated to the state pursuant to said act.

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                                       CS/HB 1591, First Engrossed



  1         4.  Permits required under the Marine Protection,

  2  Research and Sanctuaries Act of 1972, as amended, 33 U.S.C.

  3  ss. 1401, 1402, 1411-1421, and 1441-1444.

  4         5.  Permits for the construction of bridges and

  5  causeways in navigable waters required pursuant to 33 U.S.C.

  6  s. 401, as amended.

  7         4.6.  Permits and licenses relating to the

  8  transportation of hazardous substance materials or

  9  transportation and dumping which are issued pursuant to the

10  Hazardous Materials Transportation Act, 49 U.S.C. ss. 1501, et

11  seq. 1801-1812, as amended, or 33 U.S.C. s. 1321 419, as

12  amended.

13         5.7.  Permits and licenses required under 15 43 U.S.C.

14  ss. 717-717w, 3301-3432, 42 U.S.C. ss. 7101-7352, and 43

15  U.S.C. 1331-1356 s. 717 for construction and operation of

16  interstate gas pipelines and storage facilities.

17         8.  Permits required under 15 U.S.C. s. 717, as

18  amended, for construction and operation of facilities needed

19  to import and export natural gas.

20         6.9.  Permits and licenses required for the siting and

21  construction of any new electrical power plants as defined in

22  s. 403.503(12), as amended.

23         7.10.  Permits and licenses required for drilling and

24  mining on public lands.

25         8.11.  Permits and licenses for areas leased under the

26  OCS Lands Act, 43 U.S.C. ss. 1331 et seq., as amended,

27  including leases and approvals under 43 U.S.C. s. 1331, as

28  amended, of exploration, development, and production plans.

29         9.12.  Permits for pipeline rights-of-way for oil and

30  gas transmissions.

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                                       CS/HB 1591, First Engrossed



  1         10.13.  Permits and licenses required for deepwater

  2  ports under 33 U.S.C. s. 1503, as amended.

  3         11.14.  Permits required for the taking of marine

  4  mammals under the Marine Mammal Protection Act of 1972, as

  5  amended, 16 U.S.C. 1374 s. 104.

  6         (d)  Federal activities within the territorial limits

  7  of neighboring states when the Governor and the department

  8  determine that significant individual or cumulative impact to

  9  the land or water resources of the state would result from the

10  activities.

11         (4)  The department is authorized to adopt rules

12  establishing procedures for conducting consistency reviews of

13  activities, uses, and projects for which consistency review is

14  required pursuant to subsections (1), (2), and (3). Such rules

15  shall include by rule adopt procedures for the expeditious

16  handling of emergency repairs to existing facilities for which

17  consistency review is required pursuant to subsections (1),

18  (2), and (3). The department is also authorized to adopt rules

19  prescribing the data and information needed for the review of

20  consistency certifications and determinations.

21         (5)  In any coastal management program submitted to the

22  appropriate federal agency for its approval pursuant to this

23  act, the department shall specifically waive its right to

24  determine the consistency with the coastal management program

25  of all federally licensed or permitted activities not

26  specifically listed in subsection (3).

27         (6)  Agencies authorized to review and comment on the

28  consistency of federal activities subject to state review

29  under the Florida Coastal Management Program are those

30  agencies charged with the implementation of the statutes and

31  rules included in the federally approved program. Each agency


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                                       CS/HB 1591, First Engrossed



  1  shall be afforded an opportunity to provide the department or

  2  the state licensing agency with its comments and determination

  3  regarding the consistency of the federal activity with the

  4  statutes and rules included in the federally approved program

  5  implemented by the agency. An agency that submits a

  6  determination of inconsistency to the department or a state

  7  licensing agency shall be an indispensable party to any

  8  administrative or judicial proceeding in which such

  9  determination is an issue, shall be responsible for defending

10  its determination in such proceedings, and shall be liable for

11  any damages, costs, and attorney's fees awarded in the action

12  as a consequence of such determination.

13         (7)(6)  Agencies shall not review for federal

14  consistency purposes an application for a federally licensed

15  or permitted activity if the activity is vested, exempted, or

16  excepted under its own regulatory authority.

17         (8)(7)  The department shall review the items listed in

18  subsection (3) to determine if in certain circumstances such

19  items would constitute minor permit activities.  If the

20  department determines that the list contains minor permit

21  activities, it may by rule establish a program of general

22  concurrence pursuant to federal regulation which shall allow

23  similar minor activities, in the same geographic area, to

24  proceed without prior department review for federal

25  consistency.

26         (8)  This section shall not apply to the review of

27  federally licensed or permitted activities for which permit

28  applications are filed with the appropriate federal agency

29  prior to approval of the state coastal management program by

30  the appropriate federal agency pursuant to 16 U.S.C. ss. 1451

31  et seq.


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                                       CS/HB 1591, First Engrossed



  1         Section 6.  Section 380.285, Florida Statutes, is

  2  amended to read:

  3         380.285  Lighthouses; study; preservation; funding.--

  4         (1)  The Coastal Management Program of the Department

  5  of Community Affairs and the Division of Historical Resources

  6  of the Department of State shall undertake a study of the

  7  lighthouses in the state. The study must determine the

  8  location, ownership, condition, and historical significance of

  9  all lighthouses in the state and ensure that all historically

10  significant lighthouses are nominated for inclusion on the

11  National Register of Historic Places. The study must assess

12  the condition and restoration needs of historic lighthouses

13  and develop plans for appropriate future public access and

14  use. The Coastal Management Program and the Division of

15  Historical Resources shall take a leadership role in

16  implementing plans to stabilize lighthouses and associated

17  structures and to preserve and protect them from future

18  deterioration. When possible, the lighthouses and associated

19  buildings should be made available to the public for

20  educational and recreational purposes. The Department of

21  Community Affairs should consider these responsibilities to be

22  a priority of the Florida Coastal Management Program, and

23  implementation of this act should be a priority in the use of

24  coastal management funds.

25         (2)  The Department of Community Affairs and the

26  Department of State shall request in its their annual

27  legislative budget requests request funding necessary to carry

28  out the duties and responsibilities specified in this act.

29  Funds for the rehabilitation of lighthouses should be

30  allocated through matching grants-in-aid to state and local

31  government agencies and to nonprofit organizations. The


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                                       CS/HB 1591, First Engrossed



  1  Department of Environmental Protection Community Affairs may

  2  assist the Division of Historical Resources in projects to

  3  accomplish the goals and activities described in this section

  4  lighthouse identification, assessment, restoration, and

  5  interpretation.

  6         Section 7.  As described in the Governor's budget

  7  recommendation for fiscal year 2002-2003, all powers, duties,

  8  functions, rules, records, personnel, property, and unexpended

  9  balances of appropriations, allocations, or other funds of the

10  Florida Coastal Management Program as provided for in ss.

11  380.20-380.285, Florida Statutes, currently assigned to and

12  administered by the Department of Community Affairs are

13  transferred by a type two transfer, as defined in s. 20.06(2),

14  Florida Statutes, to the Department of Environmental

15  Protection.

16         Section 8.  Subsection (40) is added to section

17  403.061, Florida Statutes, to read:

18         403.061  Department; powers and duties.--The department

19  shall have the power and the duty to control and prohibit

20  pollution of air and water in accordance with the law and

21  rules adopted and promulgated by it and, for this purpose, to:

22         (40)  Serve as the state's single point of contact for

23  performing the responsibilities described in Presidential

24  Executive Order 12372, including administration and operation

25  of the Florida State Clearinghouse. The Florida State

26  Clearinghouse shall be responsible for coordinating

27  interagency reviews of the following: federal activities and

28  actions subject to the federal consistency requirements of s.

29  307 of the Coastal Zone Management Act; documents prepared

30  pursuant to the National Environmental Policy Act, 42 U.S.C.

31  ss. 4321, et seq., and the Outer Continental Shelf Lands Act,


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                                       CS/HB 1591, First Engrossed



  1  43 U.S.C. ss. 1331 et seq.; applications for federal funding

  2  pursuant to s. 216.212, Florida Statutes; and other notices

  3  and information regarding federal activities in the state, as

  4  appropriate. The Florida State Clearinghouse shall ensure that

  5  state agency comments and recommendations on the

  6  environmental, social, and economic impact of proposed federal

  7  actions are communicated to federal agencies, applicants,

  8  local governments, and interested parties.

  9

10  The department shall implement such programs in conjunction

11  with its other powers and duties and shall place special

12  emphasis on reducing and eliminating contamination that

13  presents a threat to humans, animals or plants, or to the

14  environment.

15         Section 9.  Section 380.276, Florida Statutes, is

16  created to read:

17         380.276  Beaches and coastal areas; display of uniform

18  warning and safety flags on public beaches; placement of

19  uniform notification signs.--

20         (1)  It is the intent of the Legislature that a

21  cooperative effort among state agencies and local governments

22  be undertaken to plan for and assist in the display of uniform

23  warning and safety flags, and the placement of uniform

24  notification signs that provide the meaning of such warning

25  and safety flags, on the public beaches along the coast of the

26  state.  Because the varying natural conditions of Florida's

27  public beaches and coastal areas pose significant risks to the

28  safety of tourists and the general public, it is important to

29  inform the public of the need to exercise caution.

30         (2)  The Department of Environmental Protection,

31  through the Florida Coastal Management Program, shall direct


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                                       CS/HB 1591, First Engrossed



  1  and coordinate the uniform warning and safety flag program.

  2  The purpose of the program shall be to encourage the display

  3  of uniform warning and safety flags at all public beaches

  4  along the coast of the state at which warning and safety flags

  5  are displayed and lifeguards are on duty, and to encourage the

  6  placement of uniform notification signs that provide the

  7  meaning of such flags.

  8         (3)  The Department of Environmental Protection shall

  9  develop a program for the display of uniform warning and

10  safety flags at all public beaches along the coast of the

11  state at which warning and safety flags are displayed and

12  lifeguards are on duty, and for the placement of uniform

13  notification signs that provide the meaning of the flags

14  displayed.  Such a program shall provide:

15         (a)  For posted notification of the meaning of each of

16  the warning and safety flags at all designated public access

17  points.

18         (b)  That uniform notification signs be posted in a

19  conspicuous location and be clearly legible.

20         (c)  A standard size, shape, color, and definition for

21  each warning and safety flag.

22         (d)  That flags incorporate a numerical designation to

23  accommodate persons who are colorblind.

24         (e)  That flags not specifically defined by the

25  department must be identified by the entity displaying the

26  flags in the posted notification.

27         (f)  Guidelines for the periodic replacement of flags.

28         (4)  The Department of Environmental Protection is

29  authorized, within the limits of appropriations available to

30  it for such purposes, to establish and operate a program to

31  encourage the display of uniform warning and safety flags on


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                                       CS/HB 1591, First Engrossed



  1  all public beaches along the coast of the state and to

  2  encourage the placement of uniform notification signs that

  3  provide the meaning of the flags displayed.  The department

  4  shall coordinate the implementation of the uniform warning and

  5  safety flag program with local governing bodies and the

  6  Florida Beach Patrol Chiefs Association.

  7         (5)  The Department of Environmental Protection may

  8  adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to

  9  administer this section.

10         (6)  The state, state agencies, local governments, and

11  local government agencies may not be held liable for any

12  injury caused by the reasonable placement or location of

13  uniform warning and safety flags or reasonably posted uniform

14  notification signs or the failure to install uniform warning

15  and safety flags or posted uniform notification signs as

16  provided by this section.

17         Section 10.  This act shall take effect July 1, 2002.

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CODING: Words stricken are deletions; words underlined are additions.