HB 1317

1
A bill to be entitled
2An act relating to natural resources; amending s. 376.121,
3F.S.; providing an alternative to the compensation
4schedule for calculating natural resources damages;
5providing for consultation by the department with the Fish
6and Wildlife Conservation Commission with regard to
7rulemaking; removing a restriction on amount of
8compensation; providing an effective date.
9
10Be It Enacted by the Legislature of the State of Florida:
11
12     Section 1.  Section 376.121, Florida Statutes, is amended
13to read:
14     376.121  Liability for damage to natural resources.--The
15Legislature finds that extensive damage to the state's natural
16resources is the likely result of a pollutant discharge and that
17it is essential that the state adequately assess and recover the
18cost of such damage from responsible parties. It is the state's
19goal to recover the costs of restoration from the responsible
20parties and to restore damaged natural resources to their
21predischarge condition. In many instances, however, restoration
22is not technically feasible. In such instances, the state has
23the responsibility to its citizens to recover the cost of all
24damage to natural resources. To ensure that the public does not
25bear a substantial loss as a result of the destruction of
26natural resources, the procedures set out in this section shall
27be used to assess the cost of damage to such resources. Natural
28resources include coastal waters, wetlands, estuaries, tidal
29flats, beaches, lands adjoining the seacoasts of the state, and
30all living things except human beings. The Legislature
31recognizes the difficulty historically encountered in
32calculating the value of damaged natural resources. The value of
33certain qualities of the state's natural resources is not
34readily quantifiable, yet the resources and their qualities have
35an intrinsic value to the residents of the state, and any damage
36to natural resources and their qualities should not be dismissed
37as nonrecoverable merely because of the difficulty in
38quantifying their value. In order to avoid unnecessary
39speculation and expenditure of limited resources to determine
40these values, the Legislature hereby establishes a schedule for
41compensation for damage to the state's natural resources and the
42quality of said resources. As an alternative to the compensation
43schedule described in subsections (4), (5), (6), and (9), the
44department may, at its sole discretion, use other methods of
45calculating natural resources damages in accordance with either
46federal rules implementing the Oil Pollution Act of 1990, as
47amended, or department rules adopted under subsection (10).
48     (1)  The department shall assess and recover from
49responsible parties the compensation for the injury or
50destruction of natural resources, including, but not limited to,
51the death or injury of living things and damage to or
52destruction of habitat, resulting from pollutant discharges
53prohibited by s. 376.041. The amount of compensation and any
54costs of assessing damage and recovering compensation received
55by the department shall be deposited into the Florida Coastal
56Protection Trust Fund pursuant to s. 376.12 and disbursed
57according to subsection (11). Whoever violates, or causes to be
58violated, s. 376.041 shall be liable to the state for damage to
59natural resources.
60     (2)  The compensation schedule for damage to natural
61resources is based upon the cost of restoration and the loss of
62ecological, consumptive, intrinsic, recreational, scientific,
63economic, aesthetic, and educational values of such injured or
64destroyed resources. The compensation schedule takes into
65account:
66     (a)  The volume of the discharge.
67     (b)  The characteristics of the pollutant discharged. The
68toxicity, dispersibility, solubility, and persistence
69characteristics of a pollutant as affects the severity of the
70effects on the receiving environment, living things, and
71recreational and aesthetic resources. Pollutants have varying
72propensities to injure natural resources based upon their
73potential exposure and effects. Exposure to natural resources is
74determined by the dispersibility and degradability of the
75pollutant. Effects to natural resources result from mechanical
76injury and toxicity and include physical contamination,
77smothering, feeding prevention, immobilization, respiratory
78distress, direct mortality, lost recruitment of larvae and
79juveniles killed, changes in the food web, and chronic effects
80of sublethal levels of contaminates in tissues or the
81environment. For purposes of the compensation schedule,
82pollutants have been ranked for their propensity to cause injury
83to natural resources based upon a combination of their acute
84toxicity, mechanical injury, degradability, and dispersibility
85characteristics on a 1-to-3 relative scale with Category 1
86containing the pollutants with the greatest propensity to cause
87injury to natural resources. The following pollutants are
88categorized:
89     1.  Category 1: bunker and residual fuel.
90     2.  Category 2: waste oils, crude oil, lubricating oil,
91asphalt, and tars.
92     3.  Category 3: hydraulic fluids, numbers 1 and 2 diesel
93fuels, heating oil, jet aviation fuels, motor gasoline,
94including aviation gasoline, kerosene, stationary turbine fuels,
95ammonia and its derivatives, and chlorine and its derivatives.
96
97The department shall adopt rules establishing the pollutant
98category of pesticides and other pollutants as defined in s.
99376.031 and not listed in this paragraph.
100     (c)  The type and sensitivity of natural resources affected
101by a discharge, determined by the following factors:
102     1.  The location of a discharge. Inshore discharges are
103discharges that occur within waters under the jurisdiction of
104the department and within an area extending seaward from the
105coastline of the state to a point 1 statute mile seaward of the
106coastline. Nearshore discharges are discharges that occur more
107than 1 statute mile, but within 3 statute miles, seaward of the
108coastline. Offshore discharges are discharges that occur more
109than 3 statute miles seaward of the coastline.
110     2.  The location of the discharge with respect to special
111management areas designated because of their unique habitats;
112living resources; recreational use; aesthetic importance; and
113other ecological, educational, consumptive, intrinsic,
114scientific, and economic values of the natural resources located
115therein. Special management areas are state parks; recreation
116areas; national parks, seashores, estuarine research reserves,
117marine sanctuaries, wildlife refuges, and national estuary
118program water bodies; state aquatic preserves and reserves;
119classified shellfish harvesting areas; areas of critical state
120concern; federally designated critical habitat for endangered or
121threatened species; and outstanding Florida waters.
122     3.  The areal or linear extent of the natural resources
123impacted.
124     (3)  Compensation for damage to natural resources for any
125discharge of less than 25 gallons of gasoline or diesel fuel
126shall be $50.
127     (4)  Compensation schedule:
128     (a)  The amount of compensation assessed under this
129schedule is calculated by: multiplying $1 per gallon or its
130equivalent measurement of pollutant discharged, by the number of
131gallons or its equivalent measurement, times the location of the
132discharge factor, times the special management area factor.
133     (b)  Added to the amount obtained in paragraph (a) is the
134value of the observable natural resources damaged, which is
135calculated by multiplying the areal or linear coverage of
136impacted habitat by the corresponding habitat factor, times the
137special management area factor.
138     (c)  The sum of paragraphs (a) and (b) is then multiplied
139by the pollutant category factor.
140     (d)  The final damage assessment figure is the sum of the
141amount calculated in paragraph (c) plus the compensation for
142death of endangered or threatened species, plus the cost of
143conducting the damage assessment as determined by the
144department.
145     (5)(a)  The factors used in calculating the damage
146assessment are:
147     1.  Location of discharge factor:
148     a.  Discharges that originate inshore have a factor of
149eight. Discharges that originate nearshore have a factor of
150five. Discharges that originate offshore have a factor of one.
151     b.  Compensation for damage to natural resources resulting
152from discharges that originate outside of state waters but that
153traverse the state's boundaries and therefore have an impact
154upon the state's natural resources shall be calculated using a
155location factor of one.
156     c.  Compensation for damage to natural resources resulting
157from discharges of less than 10,000 gallons of pollutants which
158originate within 100 yards of an established terminal facility
159or point of routine pollutant transfer in a designated port
160authority as defined in s. 315.02 shall be assessed a location
161factor of one.
162     2.  Special management area factor: Discharges that
163originate in special management areas described in subparagraph
164(2)(c)2. have a factor of two. Discharges that originate outside
165a special management area described in subparagraph (2)(c)2.
166have a location factor of one. For discharges that originate
167outside of a special management area but impact the natural
168resources within a special management area, the value of the
169natural resources damaged within the area shall be multiplied by
170the special management area factor of two.
171     3.  Pollutant category factor: Discharges of category 1
172pollutants have a factor of eight. Discharges of category 2
173pollutants have a factor of four. Discharges of category 3
174pollutants have a factor of one.
175     4.  Habitat factor: The amount of compensation for damage
176to the natural resources of the state is established as follows:
177     a.  $10 per square foot of coral reef impacted.
178     b.  $1 per square foot of mangrove or seagrass impacted.
179     c.  $1 per linear foot of sandy beach impacted.
180     d.  $0.50 per square foot of live bottom, oyster reefs,
181worm rock, perennial algae, saltmarsh, or freshwater tidal marsh
182impacted.
183     e.  $0.05 per square foot of sand bottom or mud flats, or
184combination thereof, impacted.
185     (b)  The areal and linear coverage of habitat impacted
186shall be determined by the department using a combination of
187field measurements, aerial photogrammetry, and satellite
188imagery. An area is impacted when the pollutant comes in contact
189with the habitat.
190     (6)  It is understood that a pollutant will, by its very
191nature, result in damage to the flora and fauna of the waters of
192the state and the adjoining land. Therefore, compensation for
193such resources, which is difficult to calculate, is included in
194the compensation schedule. Not included, however, in this base
195figure is compensation for the death of endangered or threatened
196species directly attributable to the pollutant discharged.
197Compensation for the death of any animal designated by rule as
198endangered by the Fish and Wildlife Conservation Commission is
199$10,000. Compensation for the death of any animal designated by
200rule as threatened by the Fish and Wildlife Conservation
201Commission is $5,000. These amounts are not intended to reflect
202the actual value of said endangered or threatened species, but
203are included for the purposes of this section.
204     (7)  The owner or operator of the vessel or facility
205responsible for a discharge may designate a representative or
206agent to work with the department in assessing the amount of
207damage to natural resources resulting from the discharge.
208     (8)  When assessing the amount of damages to natural
209resources, the department shall be assisted, if requested by the
210department, by representatives of other state agencies and local
211governments that would enhance the department's damage
212assessment. The Fish and Wildlife Conservation Commission shall
213assist the department in the assessment of damages to wildlife
214impacted by a pollutant discharge and shall assist the
215department in recovering the costs of such damages.
216     (9)  Compensation for damage resulting from the discharge
217of two or more pollutants shall be calculated for the volume of
218each pollutant discharged. If the separate volume for each
219pollutant discharged cannot be determined, the highest
220multiplier for the pollutants discharged shall be applied to the
221entire volume of the spill. Compensation for commingled
222discharges that contact habitat shall be calculated on a
223proportional basis of discharged volumes. The highest multiplier
224for such commingled pollutants may only be applied if a
225reasonable proportionality of the commingled pollutants cannot
226be determined at the point of any contact with natural
227resources.
228     (10)  For cases in which the department elects to use
229methods of natural resource damage assessment other than the
230compensation schedules described in subsections (4), (5), (6),
231and (9) or the methods described in federal rules implementing
232the Oil Pollution Act of 1990, as amended discharges of more
233than 30,000 gallons, the department shall, in consultation with
234the Fish and Wildlife Conservation Game and Fresh Water Fish
235Commission, adopt rules by July 1, 1994, to assess compensation
236for the damage to natural resources based upon the cost of
237restoring, rehabilitating, replacing, or acquiring the
238equivalent of the damaged natural resources; the diminution in
239the value of those resources pending restoration; and the
240reasonable cost of assessing those damages. The person
241responsible for a discharge shall be given an opportunity to
242consult with the department on the assessment design and
243restoration program.
244     (a)  For discharges greater than 30,000 gallons, the person
245responsible has the option to pay the amount of compensation
246calculated pursuant to the compensation schedule established in
247subsection (4) or pay the amount determined by a damage
248assessment performed by the department. If the person
249responsible for the discharge elects to have a damage assessment
250performed, then such person shall notify the department in
251writing of such decision within 15 days after the discovery of
252the discharge. The decision to have a damage assessment
253performed to determine compensation for a discharge shall be
254final; the person responsible for a discharge may not later
255elect to use the compensation schedule for computing
256compensation. Failure to make such notice shall result in the
257amount of compensation for the total damage to natural resources
258being calculated based on the compensation schedule, unless the
259department elects, at its sole discretion, to conduct a damage
260assessment pursuant to state or federal rules for assessment of
261natural resource damages. The compensation shall be paid within
26290 days after receipt of a written request from the department.
263     (b)  In the event the person responsible for a discharge
264greater than 30,000 gallons elects to have a damage assessment
265performed, said person shall pay to the department an amount
266equal to the compensation calculated pursuant to subsection (4)
267for the discharge using a volume of 30,000 gallons. The payment
268shall be made within 90 days after receipt of a written request
269from the department.
270     (c)  After completion of the damage assessment, the
271department shall advise the person responsible for the discharge
272of the amount of compensation due to the state. A credit shall
273be given for the amount paid pursuant to paragraph (b). Payment
274shall be made within 90 days after receipt of a written request
275from the department. In no event shall the total compensation
276paid pursuant to this section be less than the dollar amount
277calculated pursuant to paragraph (b).
278     (11)(a)  Moneys recovered by the department as compensation
279for damage to natural resources shall be expended only for the
280following purposes:
281     1.  To the maximum extent practicable, the restoration of
282natural resources damaged by the discharge for which
283compensation is paid.
284     2.  Restoration of damaged resources.
285     3.  Developing restoration and enhancement techniques for
286natural resources.
287     4.  Investigating methods for improving and refining
288techniques for containment, abatement, and removal of pollutants
289from the environment, especially from mangrove forests, corals,
290seagrasses, benthic communities, rookeries, nurseries, and other
291habitats which are unique to Florida's coastal environment.
292     5.  Developing and updating the "Sensitivity of Coastal
293Environments and Wildlife to Spilled Oil in Florida" atlas.
294     6.  Investigating the long-term effects of pollutant
295discharges on natural resources, including pelagic organisms,
296critical habitats, and marine ecosystems.
297     7.  Developing an adequate wildlife rescue and
298rehabilitation program.
299     8.  Expanding and enhancing the state's pollution
300prevention and control education program.
301     9.  Restoring natural resources previously impacted by
302pollutant discharges, but never completely restored.
303     10.  Funding alternative projects selected by the Board of
304Trustees of the Internal Improvement Trust Fund. Any such
305project shall be selected on the basis of its anticipated
306benefits to the marine natural resources available to the
307residents of this state who previously benefited from the
308injured or destroyed nonrestorable natural resources.
309     (b)  All interest earned from investment of moneys
310recovered by the department for damage to natural resources
311shall be expended only for the activities described in paragraph
312(a).
313     (c)  The person or parties responsible for a discharge for
314which the department has requested compensation for damage
315pursuant to this section shall pay the department, within 90
316days after receipt of the request, the entire amount due to the
317state. In the event that payment is not made within the 90 days,
318the person or parties are liable for interest on the outstanding
319balance, which interest shall be calculated at the rate
320prescribed under s. 55.03.
321     (12)  Any determination or assessment of damage to natural
322resources for the purposes of this section by the department in
323accordance with the compensation sections or in accordance with
324the rules adopted under subsection (10) shall have the force and
325effect of rebuttable presumption on behalf of the department in
326any administrative or judicial proceeding.
327     (13)  There shall be no double recovery under this law for
328natural resource damage resulting from a discharge, including
329the costs of damage assessment or restoration, rehabilitation,
330replacement, or acquisition for the same incident and natural
331resource. The department shall meet with and develop memoranda
332of understanding with appropriate federal trustees as defined in
333Pub. L. No. 101-380 (Oil Pollution Act of 1990) to provide
334further assurances of no double recovery.
335     (14)  The department must review the amount of compensation
336assessed pursuant to the damage assessment formula established
337in this section and report its findings to the 1995 Legislature.
338Thereafter, the department must conduct such a review and report
339its findings to the Legislature biennially.
340     (15)  The department shall adopt rules necessary or
341convenient for carrying out the duties, obligations, powers, and
342responsibilities set forth in this section.
343     Section 2.  This act shall take effect upon becoming a law.


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