Florida Senate - 2024                              CS for SB 738
       
       
        
       By the Committee on Environment and Natural Resources; and
       Senator Burgess
       
       
       
       
       592-02015-24                                           2024738c1
    1                        A bill to be entitled                      
    2         An act relating to environmental management; amending
    3         s. 120.595, F.S.; providing that the prevailing party
    4         in certain actions against the Department of
    5         Environmental Protection or a water management
    6         district is entitled to reasonable costs and attorney
    7         fees; amending s. 373.4131, F.S.; requiring that
    8         nonindustrial stormwater management systems be
    9         designed with side slopes that meet certain minimum
   10         design requirements; providing an exception;
   11         superseding certain side slope rules; amending s.
   12         376.313, F.S.; revising construction relating to
   13         causes of action for damages to real or personal
   14         property directly resulting from certain discharges or
   15         other conditions of pollution; providing legislative
   16         intent; requiring the department and water management
   17         districts to conduct holistic reviews of their
   18         respective agency’s coastal permitting processes and
   19         permit programs; providing the scope and purpose of
   20         the reviews; requiring the department and water
   21         management districts to submit reports of their
   22         findings and proposed solutions to the Governor and
   23         the Legislature by a specified date; providing an
   24         effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Present paragraph (e) of subsection (1) of
   29  section 120.595, Florida Statutes, is redesignated as paragraph
   30  (f), a new paragraph (e) is added to that subsection, and
   31  subsections (2) and (3) and paragraph (d) of subsection (4) of
   32  that section are amended, to read:
   33         120.595 Attorney’s fees.—
   34         (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
   35  120.57(1).—
   36         (e) Notwithstanding paragraph (b), the prevailing party in
   37  a challenge filed against a Department of Environmental
   38  Protection or water management district authorization issued
   39  pursuant to chapter 403 or chapter 373, respectively, is
   40  entitled to recover reasonable costs and attorney fees in
   41  challenging or defending such authorization.
   42         (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION
   43  120.56(2).—If the appellate court or administrative law judge
   44  declares a proposed rule or portion of a proposed rule invalid
   45  pursuant to s. 120.56(2), a judgment or order shall be rendered
   46  against the agency for reasonable costs and reasonable
   47  attorney’s fees, unless the agency demonstrates that its actions
   48  were substantially justified or special circumstances exist
   49  which would make the award unjust. An agency’s actions are
   50  “substantially justified” if there was a reasonable basis in law
   51  and fact at the time the actions were taken by the agency. If
   52  the agency prevails in the proceedings, the appellate court or
   53  administrative law judge shall award reasonable costs and
   54  reasonable attorney’s fees against a party if the appellate
   55  court or administrative law judge determines that a party
   56  participated in the proceedings for an improper purpose as
   57  defined by paragraph (1)(f). An paragraph (1)(e). No award of
   58  attorney’s fees as provided by this subsection may not shall
   59  exceed $50,000.
   60         (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
   61  SECTION 120.56(3) AND (5).—If the appellate court or
   62  administrative law judge declares a rule or portion of a rule
   63  invalid pursuant to s. 120.56(3) or (5), a judgment or order
   64  shall be rendered against the agency for reasonable costs and
   65  reasonable attorney’s fees, unless the agency demonstrates that
   66  its actions were substantially justified or special
   67  circumstances exist which would make the award unjust. An
   68  agency’s actions are “substantially justified” if there was a
   69  reasonable basis in law and fact at the time the actions were
   70  taken by the agency. If the agency prevails in the proceedings,
   71  the appellate court or administrative law judge shall award
   72  reasonable costs and reasonable attorney’s fees against a party
   73  if the appellate court or administrative law judge determines
   74  that a party participated in the proceedings for an improper
   75  purpose as defined by paragraph (1)(f). An paragraph (1)(e). No
   76  award of attorney’s fees as provided by this subsection may not
   77  shall exceed $50,000.
   78         (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
   79  120.56(4).—
   80         (d) If the agency prevails in the proceedings, the
   81  appellate court or administrative law judge shall award
   82  reasonable costs and attorney’s fees against a party if the
   83  appellate court or administrative law judge determines that the
   84  party participated in the proceedings for an improper purpose as
   85  defined in paragraph (1)(f) paragraph (1)(e) or that the party
   86  or the party’s attorney knew or should have known that a claim
   87  was not supported by the material facts necessary to establish
   88  the claim or would not be supported by the application of then
   89  existing law to those material facts.
   90         Section 2. Subsection (7) is added to section 373.4131,
   91  Florida Statutes, to read:
   92         373.4131 Statewide environmental resource permitting
   93  rules.—
   94         (7)A nonindustrial stormwater management system, in or
   95  adjacent to residential or urban areas, side slope must be
   96  designed, except as provided in paragraph (a), with a
   97  horizontal-to-vertical ratio no steeper than 4:1 to a depth of
   98  at least 2 feet below the control elevation and must be
   99  stabilized with vegetation to prevent erosion and provide for
  100  pollutant removal.
  101         (a)A nonindustrial stormwater management system side slope
  102  in or adjacent to residential or urban areas may be designed
  103  with a steeper than 4:1 horizontal-to-vertical ratio if the
  104  slope incorporates adequate temporary and permanent erosion and
  105  sediment control best management practices. For purposes of
  106  public safety, a system designed or authorized to be steeper
  107  than 4:1 must be fenced sufficiently to prevent accidental
  108  incursion into the system.
  109         (b)All side slope rules adopted by the department, water
  110  management districts, or delegated local programs under this
  111  part as of July 1, 2024, are superseded by this subsection and
  112  may be repealed without further rulemaking pursuant to s. 120.54
  113  by publication of a notice of repeal in the Florida
  114  Administrative Register and subsequent filing of a list of the
  115  rules repealed with the Department of State.
  116         Section 3. Subsection (3) of section 376.313, Florida
  117  Statutes, is amended to read:
  118         376.313 Nonexclusiveness of remedies and individual cause
  119  of action for damages under ss. 376.30-376.317.—
  120         (3) Except as provided in s. 376.3078(3) and (11), nothing
  121  contained in ss. 376.30-376.317 do not prohibit a prohibits any
  122  person from bringing a cause of action in a court of competent
  123  jurisdiction for all damages to real or personal property
  124  directly resulting from a discharge or other condition of
  125  pollution covered by ss. 376.30-376.317 and which was not
  126  authorized by any government approval or permit issued pursuant
  127  to chapter 373, chapter 376, or chapter 403. Nothing in This
  128  chapter does not shall prohibit or diminish a party’s right to
  129  contribution from other parties jointly or severally liable for
  130  a prohibited discharge of pollutants or hazardous substances or
  131  other pollution conditions. Except as otherwise provided in
  132  subsection (4) or subsection (5), in any such suit, it is not
  133  necessary for such person to plead or prove negligence in any
  134  form or manner. Such person need only plead and prove the fact
  135  of the prohibited discharge or other pollutive condition and
  136  that it has occurred. The only strict-liability exceptions
  137  defenses to such cause of action are shall be those specified in
  138  s. 376.308 or s. 376.82.
  139         Section 4. Holistic review of coastal permitting processes
  140  and other programs.—
  141         (1)The Legislature intends to do all of the following:
  142         (a)Build a more resilient and responsive government
  143  infrastructure to allow for quick recovery after natural
  144  disasters, including hurricanes and tropical storms.
  145         (b)Promote efficiency in state government across all
  146  branches, agencies, and other governmental entities and identify
  147  any area of improvement within each entity which allows for a
  148  quick and effective delivery of services.
  149         (c)Seek out ways to improve the state’s administrative
  150  procedures in relevant fields to build a streamlined permitting
  151  process that withstands disruptions caused by natural disasters,
  152  including hurricanes and tropical storms.
  153         (2)The Department of Environmental Protection and each
  154  water management district shall conduct a holistic review of
  155  their respective agency’s current coastal permitting processes
  156  and other permit programs. The review must, at a minimum,
  157  include coastal construction control line permits; joint coastal
  158  permits; environmental resource permits; state-administered
  159  section 404 permits consistent with the terms of the United
  160  States Environmental Protection Agency’s approval; and
  161  permitting processes related to water supply infrastructure,
  162  wastewater infrastructure, and onsite sewage treatment and
  163  disposal systems.
  164         (3)The purpose of the reviews required under subsection
  165  (2) is to identify areas of improvement and to increase
  166  efficiency within each process and program. Factors that must be
  167  considered in the review include all of the following:
  168         (a)The requirements to obtain a permit.
  169         (b)Time periods for review, including those of commenting
  170  agencies, and approval of a permit application.
  171         (c)Areas for improved efficiency and decision-point
  172  consolidation within a single project’s purpose.
  173         (d)Areas of duplication across one or more permit
  174  programs.
  175         (e)The methods of requesting a permit.
  176         (f)Potential modifications to memoranda of agreements
  177  between the state and the Federal Government governing delegated
  178  or approved federal permitting programs, which modifications
  179  would improve the efficiency and predictability of the program’s
  180  administration, including allowing consistent administration of
  181  a permit by a state or federal entity over the lifetime of a
  182  permitted project.
  183         (g)Any other factors that may increase the efficiency of a
  184  permitting process and may allow for improved storm recovery.
  185         (4)By December 31, 2024, the department and each water
  186  management district shall provide their findings and proposed
  187  solutions in a report to the Governor, the President of the
  188  Senate, and the Speaker of the House of Representatives.
  189         Section 5. This act shall take effect July 1, 2024.