HB 1317CS

CHAMBER ACTION



1The Committee on Natural Resources recommends the following:
2
3     Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to natural resources; amending s. 376.121,
7F.S.; providing an alternative to the compensation
8schedule for calculating natural resources damages;
9revising procedures relating to damage assessment;
10removing a restriction on amount of compensation;
11providing an effective date.
12
13Be It Enacted by the Legislature of the State of Florida:
14
15     Section 1.  Section 376.121, Florida Statutes, is amended
16to read:
17     376.121  Liability for damage to natural resources.--The
18Legislature finds that extensive damage to the state's natural
19resources is the likely result of a pollutant discharge and that
20it is essential that the state adequately assess and recover the
21cost of such damage from responsible parties. It is the state's
22goal to recover the costs of restoration from the responsible
23parties and to restore damaged natural resources to their
24predischarge condition. In many instances, however, restoration
25is not technically feasible. In such instances, the state has
26the responsibility to its citizens to recover the cost of all
27damage to natural resources. To ensure that the public does not
28bear a substantial loss as a result of the destruction of
29natural resources, the procedures set out in this section shall
30be used to assess the cost of damage to such resources. Natural
31resources include coastal waters, wetlands, estuaries, tidal
32flats, beaches, lands adjoining the seacoasts of the state, and
33all living things except human beings. The Legislature
34recognizes the difficulty historically encountered in
35calculating the value of damaged natural resources. The value of
36certain qualities of the state's natural resources is not
37readily quantifiable, yet the resources and their qualities have
38an intrinsic value to the residents of the state, and any damage
39to natural resources and their qualities should not be dismissed
40as nonrecoverable merely because of the difficulty in
41quantifying their value. In order to avoid unnecessary
42speculation and expenditure of limited resources to determine
43these values, the Legislature hereby establishes a schedule for
44compensation for damage to the state's natural resources and the
45quality of said resources. As an alternative to the compensation
46schedule described in subsections (4), (5), (6), and (9), the
47department, when no responsible party is identified, when a
48responsible party opts out of the formula pursuant to subsection
49(10)(a), or when the department conducts a cooperative damage
50assessment with federal agencies, may use methods of calculating
51natural resources damages in accordance with federal rules
52implementing the Oil Pollution Act of 1990, as amended.
53     (1)  The department shall assess and recover from
54responsible parties the compensation for the injury or
55destruction of natural resources, including, but not limited to,
56the death or injury of living things and damage to or
57destruction of habitat, resulting from pollutant discharges
58prohibited by s. 376.041. The amount of compensation and any
59costs of assessing damage and recovering compensation received
60by the department shall be deposited into the Florida Coastal
61Protection Trust Fund pursuant to s. 376.12 and disbursed
62according to subsection (11). Whoever violates, or causes to be
63violated, s. 376.041 shall be liable to the state for damage to
64natural resources.
65     (2)  The compensation schedule for damage to natural
66resources is based upon the cost of restoration and the loss of
67ecological, consumptive, intrinsic, recreational, scientific,
68economic, aesthetic, and educational values of such injured or
69destroyed resources. The compensation schedule takes into
70account:
71     (a)  The volume of the discharge.
72     (b)  The characteristics of the pollutant discharged. The
73toxicity, dispersibility, solubility, and persistence
74characteristics of a pollutant as affects the severity of the
75effects on the receiving environment, living things, and
76recreational and aesthetic resources. Pollutants have varying
77propensities to injure natural resources based upon their
78potential exposure and effects. Exposure to natural resources is
79determined by the dispersibility and degradability of the
80pollutant. Effects to natural resources result from mechanical
81injury and toxicity and include physical contamination,
82smothering, feeding prevention, immobilization, respiratory
83distress, direct mortality, lost recruitment of larvae and
84juveniles killed, changes in the food web, and chronic effects
85of sublethal levels of contaminates in tissues or the
86environment. For purposes of the compensation schedule,
87pollutants have been ranked for their propensity to cause injury
88to natural resources based upon a combination of their acute
89toxicity, mechanical injury, degradability, and dispersibility
90characteristics on a 1-to-3 relative scale with Category 1
91containing the pollutants with the greatest propensity to cause
92injury to natural resources. The following pollutants are
93categorized:
94     1.  Category 1: bunker and residual fuel.
95     2.  Category 2: waste oils, crude oil, lubricating oil,
96asphalt, and tars.
97     3.  Category 3: hydraulic fluids, numbers 1 and 2 diesel
98fuels, heating oil, jet aviation fuels, motor gasoline,
99including aviation gasoline, kerosene, stationary turbine fuels,
100ammonia and its derivatives, and chlorine and its derivatives.
101
102The department shall adopt rules establishing the pollutant
103category of pesticides and other pollutants as defined in s.
104376.031 and not listed in this paragraph.
105     (c)  The type and sensitivity of natural resources affected
106by a discharge, determined by the following factors:
107     1.  The location of a discharge. Inshore discharges are
108discharges that occur within waters under the jurisdiction of
109the department and within an area extending seaward from the
110coastline of the state to a point 1 statute mile seaward of the
111coastline. Nearshore discharges are discharges that occur more
112than 1 statute mile, but within 3 statute miles, seaward of the
113coastline. Offshore discharges are discharges that occur more
114than 3 statute miles seaward of the coastline.
115     2.  The location of the discharge with respect to special
116management areas designated because of their unique habitats;
117living resources; recreational use; aesthetic importance; and
118other ecological, educational, consumptive, intrinsic,
119scientific, and economic values of the natural resources located
120therein. Special management areas are state parks; recreation
121areas; national parks, seashores, estuarine research reserves,
122marine sanctuaries, wildlife refuges, and national estuary
123program water bodies; state aquatic preserves and reserves;
124classified shellfish harvesting areas; areas of critical state
125concern; federally designated critical habitat for endangered or
126threatened species; and outstanding Florida waters.
127     3.  The areal or linear extent of the natural resources
128impacted.
129     (3)  Compensation for damage to natural resources for any
130discharge of less than 25 gallons of gasoline or diesel fuel
131shall be $50.
132     (4)  Compensation schedule:
133     (a)  The amount of compensation assessed under this
134schedule is calculated by: multiplying $1 per gallon or its
135equivalent measurement of pollutant discharged, by the number of
136gallons or its equivalent measurement, times the location of the
137discharge factor, times the special management area factor.
138     (b)  Added to the amount obtained in paragraph (a) is the
139value of the observable natural resources damaged, which is
140calculated by multiplying the areal or linear coverage of
141impacted habitat by the corresponding habitat factor, times the
142special management area factor.
143     (c)  The sum of paragraphs (a) and (b) is then multiplied
144by the pollutant category factor.
145     (d)  The final damage assessment figure is the sum of the
146amount calculated in paragraph (c) plus the compensation for
147death of endangered or threatened species, plus the cost of
148conducting the damage assessment as determined by the
149department.
150     (5)(a)  The factors used in calculating the damage
151assessment are:
152     1.  Location of discharge factor:
153     a.  Discharges that originate inshore have a factor of
154eight. Discharges that originate nearshore have a factor of
155five. Discharges that originate offshore have a factor of one.
156     b.  Compensation for damage to natural resources resulting
157from discharges that originate outside of state waters but that
158traverse the state's boundaries and therefore have an impact
159upon the state's natural resources shall be calculated using a
160location factor of one.
161     c.  Compensation for damage to natural resources resulting
162from discharges of less than 10,000 gallons of pollutants which
163originate within 100 yards of an established terminal facility
164or point of routine pollutant transfer in a designated port
165authority as defined in s. 315.02 shall be assessed a location
166factor of one.
167     2.  Special management area factor: Discharges that
168originate in special management areas described in subparagraph
169(2)(c)2. have a factor of two. Discharges that originate outside
170a special management area described in subparagraph (2)(c)2.
171have a location factor of one. For discharges that originate
172outside of a special management area but impact the natural
173resources within a special management area, the value of the
174natural resources damaged within the area shall be multiplied by
175the special management area factor of two.
176     3.  Pollutant category factor: Discharges of category 1
177pollutants have a factor of eight. Discharges of category 2
178pollutants have a factor of four. Discharges of category 3
179pollutants have a factor of one.
180     4.  Habitat factor: The amount of compensation for damage
181to the natural resources of the state is established as follows:
182     a.  $10 per square foot of coral reef impacted.
183     b.  $1 per square foot of mangrove or seagrass impacted.
184     c.  $1 per linear foot of sandy beach impacted.
185     d.  $0.50 per square foot of live bottom, oyster reefs,
186worm rock, perennial algae, saltmarsh, or freshwater tidal marsh
187impacted.
188     e.  $0.05 per square foot of sand bottom or mud flats, or
189combination thereof, impacted.
190     (b)  The areal and linear coverage of habitat impacted
191shall be determined by the department using a combination of
192field measurements, aerial photogrammetry, and satellite
193imagery. An area is impacted when the pollutant comes in contact
194with the habitat.
195     (6)  It is understood that a pollutant will, by its very
196nature, result in damage to the flora and fauna of the waters of
197the state and the adjoining land. Therefore, compensation for
198such resources, which is difficult to calculate, is included in
199the compensation schedule. Not included, however, in this base
200figure is compensation for the death of endangered or threatened
201species directly attributable to the pollutant discharged.
202Compensation for the death of any animal designated by rule as
203endangered by the Fish and Wildlife Conservation Commission is
204$10,000. Compensation for the death of any animal designated by
205rule as threatened by the Fish and Wildlife Conservation
206Commission is $5,000. These amounts are not intended to reflect
207the actual value of said endangered or threatened species, but
208are included for the purposes of this section.
209     (7)  The owner or operator of the vessel or facility
210responsible for a discharge may designate a representative or
211agent to work with the department in assessing the amount of
212damage to natural resources resulting from the discharge.
213     (8)  When assessing the amount of damages to natural
214resources, the department shall be assisted, if requested by the
215department, by representatives of other state agencies and local
216governments that would enhance the department's damage
217assessment. The Fish and Wildlife Conservation Commission shall
218assist the department in the assessment of damages to wildlife
219impacted by a pollutant discharge and shall assist the
220department in recovering the costs of such damages.
221     (9)  Compensation for damage resulting from the discharge
222of two or more pollutants shall be calculated for the volume of
223each pollutant discharged. If the separate volume for each
224pollutant discharged cannot be determined, the highest
225multiplier for the pollutants discharged shall be applied to the
226entire volume of the spill. Compensation for commingled
227discharges that contact habitat shall be calculated on a
228proportional basis of discharged volumes. The highest multiplier
229for such commingled pollutants may only be applied if a
230reasonable proportionality of the commingled pollutants cannot
231be determined at the point of any contact with natural
232resources.
233     (10)  For cases in which the department is authorized to
234use a method of natural resources damage assessment other than
235the compensation schedules described in subsections (4), (5),
236(6), and (9), the department may use the methods described in
237federal rules implementing the Oil Pollution Act of 1990, as
238amended discharges of more than 30,000 gallons, the department
239shall, in consultation with the Game and Fresh Water Fish
240Commission, adopt rules by July 1, 1994, to assess compensation
241for the damage to natural resources based upon the cost of
242restoring, rehabilitating, replacing, or acquiring the
243equivalent of the damaged natural resources; the diminution in
244the value of those resources pending restoration; and the
245reasonable cost of assessing those damages. The person
246responsible for a discharge shall be given an opportunity to
247consult with the department on the assessment design and
248restoration program.
249     (a)  When a responsible party is identified and the
250department is not conducting a cooperative damage assessment
251with federal agencies For discharges greater than 30,000
252gallons, the person responsible has the option to pay the amount
253of compensation calculated pursuant to the compensation schedule
254established in subsection (4) or pay the amount determined by a
255damage assessment performed by the department. If the person
256responsible for the discharge elects to have a damage assessment
257performed, then such person shall notify the department in
258writing of such decision within 30 15 days after identification
259the discovery of the discharge by the department. The decision
260to have a damage assessment performed to determine compensation
261for a discharge shall be final; the person responsible for a
262discharge may not later elect to use the compensation schedule
263for computing compensation. Failure to make such notice shall
264result in the amount of compensation for the total damage to
265natural resources being calculated based on the compensation
266schedule. The compensation shall be paid within 90 days after
267receipt of a written request from the department.
268     (b)  In the event the person responsible for a discharge
269greater than 30,000 gallons elects to have a damage assessment
270performed, said person shall pay to the department an amount
271equal to the compensation calculated pursuant to subsection (4)
272for the discharge using the lesser of the volume of the
273discharge or a volume of 30,000 gallons. The payment shall be
274made within 90 days after receipt of a written request from the
275department.
276     (c)  After completion of the damage assessment, the
277department shall advise the person responsible for the discharge
278of the amount of compensation due to the state. A credit shall
279be given for the amount paid pursuant to paragraph (b). Payment
280shall be made within 90 days after receipt of a written request
281from the department. In no event shall the total compensation
282paid pursuant to this section be less than the dollar amount
283calculated pursuant to paragraph (b).
284     (11)(a)  Moneys recovered by the department as compensation
285for damage to natural resources shall be expended only for the
286following purposes:
287     1.  To the maximum extent practicable, the restoration of
288natural resources damaged by the discharge for which
289compensation is paid.
290     2.  Restoration of damaged resources.
291     3.  Developing restoration and enhancement techniques for
292natural resources.
293     4.  Investigating methods for improving and refining
294techniques for containment, abatement, and removal of pollutants
295from the environment, especially from mangrove forests, corals,
296seagrasses, benthic communities, rookeries, nurseries, and other
297habitats which are unique to Florida's coastal environment.
298     5.  Developing and updating the "Sensitivity of Coastal
299Environments and Wildlife to Spilled Oil in Florida" atlas.
300     6.  Investigating the long-term effects of pollutant
301discharges on natural resources, including pelagic organisms,
302critical habitats, and marine ecosystems.
303     7.  Developing an adequate wildlife rescue and
304rehabilitation program.
305     8.  Expanding and enhancing the state's pollution
306prevention and control education program.
307     9.  Restoring natural resources previously impacted by
308pollutant discharges, but never completely restored.
309     10.  Funding alternative projects selected by the Board of
310Trustees of the Internal Improvement Trust Fund. Any such
311project shall be selected on the basis of its anticipated
312benefits to the marine natural resources available to the
313residents of this state who previously benefited from the
314injured or destroyed nonrestorable natural resources.
315     (b)  All interest earned from investment of moneys
316recovered by the department for damage to natural resources
317shall be expended only for the activities described in paragraph
318(a).
319     (c)  The person or parties responsible for a discharge for
320which the department has requested compensation for damage
321pursuant to this section shall pay the department, within 90
322days after receipt of the request, the entire amount due to the
323state. In the event that payment is not made within the 90 days,
324the person or parties are liable for interest on the outstanding
325balance, which interest shall be calculated at the rate
326prescribed under s. 55.03.
327     (12)  Any determination or assessment of damage to natural
328resources for the purposes of this section by the department in
329accordance with the compensation sections or in accordance with
330the rules adopted under subsection (10) shall have the force and
331effect of rebuttable presumption on behalf of the department in
332any administrative or judicial proceeding.
333     (13)  There shall be no double recovery under this law for
334natural resource damage resulting from a discharge, including
335the costs of damage assessment or restoration, rehabilitation,
336replacement, or acquisition for the same incident and natural
337resource. The department shall meet with and develop memoranda
338of understanding with appropriate federal trustees as defined in
339Pub. L. No. 101-380 (Oil Pollution Act of 1990) to provide
340further assurances of no double recovery.
341     (14)  The department must review the amount of compensation
342assessed pursuant to the damage assessment formula established
343in this section and report its findings to the 1995 Legislature.
344Thereafter, the department must conduct such a review and report
345its findings to the Legislature biennially.
346     (15)  The department shall adopt rules necessary or
347convenient for carrying out the duties, obligations, powers, and
348responsibilities set forth in this section.
349     Section 2.  This act shall take effect upon becoming a law.


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