Florida Senate - 2009                       CS for CS for SB 148
       
       
       
       By the Committees on Community Affairs; and Environmental
       Preservation and Conservation; and Senator Aronberg
       
       
       
       578-04359-09                                           2009148c2
    1                        A bill to be entitled                      
    2         An act relating to mangrove protection; amending s.
    3         403.121, F.S.; expanding the penalty previously
    4         applicable to violations involving mangrove trimming
    5         or alteration to apply to any violation under the
    6         Mangrove Trimming and Preservation Act; amending s.
    7         403.9323, F.S.; clarifying legislative intent with
    8         respect to the protection of mangroves; amending s.
    9         403.9324, F.S.; authorizing the Department of
   10         Environmental Protection to adopt by rule certain
   11         exemptions and general permits under the Mangrove
   12         Trimming and Preservation Act; amending s. 403.9325,
   13         F.S.; revising the definition of “riparian mangrove
   14         fringe”; amending s. 403.9329, F.S.; clarifying the
   15         department’s authority to revoke a person’s status as
   16         a professional mangrove trimmer; amending s. 403.9331,
   17         F.S.; providing that the Mangrove Trimming and
   18         Preservation Act does not authorize trimming on
   19         uninhabited natural islands or lands that are publicly
   20         owned or set aside for conservation or mitigation
   21         except under specified circumstances; providing an
   22         effective date.
   23  
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Paragraph (d) of subsection (3) of section
   27  403.121, Florida Statutes, is amended to read:
   28         403.121 Enforcement; procedure; remedies.—The department
   29  shall have the following judicial and administrative remedies
   30  available to it for violations of this chapter, as specified in
   31  s. 403.161(1).
   32         (3) Except for violations involving hazardous wastes,
   33  asbestos, or underground injection, administrative penalties
   34  must be calculated according to the following schedule:
   35         (d) For mangrove trimming or alteration violations, the
   36  department shall assess:
   37         1. A penalty of up to $5,000 per violation against any
   38  person who violates any provision of ss. 403.9321-403.9333 the
   39  contractor or agent of the owner or tenant that conducts
   40  mangrove trimming or alteration without a permit as required by
   41  s. 403.9328. However, for minor unauthorized trimming that
   42  otherwise would have qualified for a general permit under s.
   43  403.9327 or that has only minimal or insignificant individual or
   44  cumulative adverse impacts on mangrove resources, the department
   45  shall assess a penalty of up to $1,000 for the first offense.
   46  For purposes of this paragraph, the preparation or signing of a
   47  permit application by a person currently licensed under chapter
   48  471 to practice as a professional engineer does shall not
   49  constitute a violation make that person an agent of the owner or
   50  tenant.
   51         2.For major unauthorized trimming or a second or
   52  subsequent violation of subparagraph 1., an additional penalty
   53  of up to $100 for each mangrove illegally trimmed and up to $250
   54  for each mangrove illegally altered, not to exceed a total of
   55  $10,000.
   56         3.For major unauthorized trimming or a second or
   57  subsequent violation of subparagraph 1. by a professional
   58  mangrove trimmer, owner, or tenant, an additional penalty of up
   59  to $250 for each mangrove illegally trimmed or altered, not to
   60  exceed a total of $10,000.
   61         Section 2. Subsection (3) of section 403.9323, Florida
   62  Statutes, is amended to read:
   63         403.9323 Legislative intent.—
   64         (3) It is the intent of the Legislature to provide
   65  waterfront property owners their riparian right of view, and
   66  other rights of riparian property ownership as recognized by s.
   67  253.141 and any other provision of law, by allowing mangrove
   68  trimming in riparian mangrove fringes without prior government
   69  approval when conducted in conformance with the provisions of
   70  ss. 403.9321-403.9333 and the trimming activities will not
   71  result in the removal, defoliation, or destruction of the
   72  mangroves.
   73         Section 3. Present subsections (1) through (6) of section
   74  403.9324, Florida Statutes, are redesignated as subsections (2)
   75  through (7), respectively, a new subsection (1) is added to that
   76  section, and present subsections (1) and (4) of that section are
   77  amended, to read:
   78         403.9324 Mangrove protection rule; delegation of mangrove
   79  protection to local governments.—
   80         (1)The department may adopt rules providing for exemptions
   81  and general permits authorizing activities that have, singularly
   82  or cumulatively, a minimal adverse effect on the water resources
   83  of the state. This subsection does not grant the department the
   84  authority to adopt rules for the exemptions and general permits
   85  provided in ss. 403.9326 and 403.9327.
   86         (2)(1) Sections 403.9321-403.9333 and any lawful
   87  regulations adopted in accordance with this section by a local
   88  government that receives a delegation of the department’s
   89  authority to administer and enforce the regulation of mangroves
   90  as provided by this section shall be the sole regulations in
   91  this state for the trimming and alteration of mangroves on
   92  privately or publicly owned lands. All other state and local
   93  regulation of mangrove is as provided in subsection (4) (3).
   94         (5)(4) Within 45 days after receipt of a written request
   95  for delegation from a local government, the department shall
   96  grant or deny the request in writing. The request is deemed
   97  approved if the department fails to respond within the 45-day
   98  time period. In reviewing requests for delegation, the
   99  department shall limit its review to whether the request
  100  complies with the requirements of subsection (3) (2). The
  101  department shall set forth in writing with specificity the
  102  reasons for denial of a request for delegation. The department’s
  103  determination regarding delegation constitutes final agency
  104  action and is subject to review under chapter 120.
  105         Section 4. Subsection (7) of section 403.9325, Florida
  106  Statutes, is amended to read:
  107         403.9325 Definitions.—For the purposes of ss. 403.9321
  108  403.9333, the term:
  109         (7) “Riparian mangrove fringe” means mangroves growing
  110  along the shoreline on private property, property owned by a
  111  governmental entity, or sovereign submerged land, the depth of
  112  which does not exceed 50 feet as measured waterward from the
  113  trunk of the most landward mangrove tree in a direction
  114  perpendicular to the shoreline to the trunk of the most
  115  waterward mangrove tree. Riparian mangrove fringe does not
  116  include mangroves on uninhabited natural islands, or public
  117  lands that have been set aside for conservation or preservation,
  118  or mangroves on lands that have been set aside as mitigation, if
  119  the permit, enforcement instrument, or conservation easement
  120  establishing the mitigation area did not include provisions for
  121  the trimming of mangroves.
  122         Section 5. Subsection (5) of section 403.9329, Florida
  123  Statutes, is amended to read:
  124         403.9329 Professional mangrove trimmers.—
  125         (5) A professional mangrove trimmer status granted under
  126  ss. 403.9321-403.9333 or by the department may be revoked by the
  127  department for any person who is responsible for any violations
  128  of ss. 403.9321-403.9333 or any adopted mangrove rules.
  129         Section 6. Subsection (3) is added to section 403.9331,
  130  Florida Statutes, to read:
  131         403.9331 Applicability; rules and policies.—
  132         (3)Pursuant to s. 403.9323(2), the provisions of ss.
  133  403.9321-403.9333 do not allow the trimming of mangroves on
  134  uninhabited natural islands that are publicly owned or on lands
  135  that are set aside for conservation and preservation or
  136  mitigation, except where necessary to protect the public health,
  137  safety, and welfare or to enhance public use of, or access to,
  138  conservation areas in accordance with approved management plans.
  139         Section 7. This act shall take effect July 1, 2009.