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 agencys 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: 33 120.595Attorneys 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 attorneys fees, unless the agency demonstrates that its actions 48 were substantially justified or special circumstances exist 49 which would make the award unjust. An agencys 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 attorneys 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 attorneys 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 attorneys 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 agencys 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 attorneys 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 attorneys 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 attorneys 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 partys 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: 92 373.4131Statewide 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: 118 376.313Nonexclusiveness 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 partys 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 states 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 agencys 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 Agencys 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 projects 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 programs 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.