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The Advocate

Big news out of the U.S. court system could change the way development permits are processed in Florida, while the Florida State Legislative session continues to tackle water quality, gaming funds for conservation, development, and more.

Good News! Federal Judge Rules Against 404 Permitting Moved to Florida Department of Environmental Protection

In 2020, the U.S. Environmental Protection Agency delegated federal wetlands permitting under Section 404 of the Clean Water Act to the Florida Department of Environmental Protection (DEP) over the objections of Audubon and most other environmental organizations. Several groups engaged EarthJustice to file a legal challenge.

On February 15, U.S. District Judge Randolph Moss of the U.S. District Court for the District of Columbia issued a decision vacating the delegation because it violated the Endangered Species Act.

In rendering his decision, Judge Moss indicated that he would entertain a possible “stay” regarding vacating the delegation to DEP, but only for those wetland permit applications that had no impact on endangered species. Crafting a motion for a “stay” would require somehow separating those permit applications with possible Endangered Species Act impacts from those permit applications with no such impacts (a very difficult task due to the numerous endangered species in Florida).

The legal challenge against the delegation (there are many other claims as to why it was contrary to law) will continue, but at this point it appears that the controversial Section 404 permit delegation is deservedly in deep trouble.

Congratulations to the organizations who brought this legal challenge!

Magnificent Frigatebird. Photo: Ramkumar Subramanian/Audubon Photography Awards.

Funds from Gaming Compact Could Go to Conservation and Land Management

HB 1417, Funding for Environmental Resource Management, by Rep. Buchanan (R-Osprey), and its Senate companion, SB 1638 by Sen. Hutson (R-St. Augustine), saw positive changes in identical amendments approved in their respective committees this week. These bills dedicate funding for various environmental programs and purposes.

The bills require 96 percent of the revenue share payments received under the agreement between the Seminole Tribe and the State of Florida in 2021 be appropriated for land conservation, the management of conservation lands, resilience projects, and water quality improvement projects.

We often focus on land acquisition – which gets all the attention – however, with land acquisition comes the responsibility of being good stewards. The funds set aside for land management and exotic plant removal will help our agencies do that critical work.

Additionally, the bill sets aside funds for Florida Gulf Coast University to develop criteria for and identify and analyze potential regional water quality restoration projects. This amendment specifically allocates a non-recurring sum of $150 million to the South Florida Water Management District Operations appropriation category for operations and maintenance responsibilities under the purview of the district.

Blue-headed Vireo. Photo: Robert Slade/Audubon Photography Awards.

Tricolored Heron with wings outstretched, wading through water.

Water Bill Would Improve Quality, Resilience, and Create New Aquatic Preserve

SB 1386, Department of Environmental Protection, by Sen. Calatayud (R-Miami) passed its second committee of reference this week in the Appropriations Committee on Agriculture, Environment, and General Government (Chair, Sen. Brodeur (R-Sanford)).

The bill was amended to match to the House companion, HB 1557, by Rep. Chaney (R-St. Petersburg).

These bills are the Department of Environmental Protection’s legislative package. The bills amend provisions for:

- Resilience
- Onsite sewage treatment and disposal systems (OSTDSs, otherwise known as septic systems)
- Wastewater treatment facilities

They also incentivize the use of reclaimed water to offset potable water use and create the Kristin Jacobs Aquatic Preserve.

Audubon supports HB 1557 and celebrated when the bill was read on the house floor this week. It is now being conveyed to the Senate.

Tricolored Heron. Photo: Roger Williams/Audubon Photography Awards.

Troubling Grandfather Provision Narrowed in Committee

SB 7040, Ratification of the Department of Environmental Protection’s Stormwater Rule, by the Senate Environmental and Natural Resources Committee and Sen. Harrell (R-Stuart), passed the Rules Committee (Chair, Sen. Mayfield (R-Melbourne)) this week.

Reminder

The bill was amended significantly to include grandfathering clauses that were so broadly written that it would have essentially rendered the rule inapplicable in much of the state. The intent of the amendment was to recognize projects that have invested a lot of time and money to date in stormwater design and planning.

Good News

Thanks to advocacy by Audubon Florida and partners, and in collaboration with the House and Senate, the House companion HB 7053 (Rep. Altman (R-Indialantic)) was amended to narrow the scope of the grandfather clause in the Water Quality, Supply and Treatment Subcommittee.

The bills passed favorably through the Infrastructure Strategies Committee (Chair, Rep. Payne (R-Palatka)).

The Senate bill has not yet been amended to match the House bill. Both bills have now passed all their referenced committees.

Downy Woodpecker. Photo: Maria Corcacas/Great Backyard Bird Count.

American Coot floating on top of blue water.

Audubon Works with Elected Officials on Bills in the Appropriations Committee on Agriculture, Environment, and General Government

An amended HB 1177, Land Development, by Rep. Duggan (R-Jacksonville), passed the Ways and Means Committee (Chair, Rep. McClain (R-Ocala)). We reported on this bill here.

Amended Bill Improvements

Local governments impose impact fees to fund infrastructure needed to expand local services to meet the demands of population growth. The amendment approved at this meeting removed provisions that would have prevented local governments from collecting transportation impact fees and also imposes specific requirements on individual development proposals relating to improvement of specific roads that must be constructed by developers.

Provisions in this bill will allow for administrative approval when a developer of a previously approved “Development of Regional Impact” (DRI) applies for changes to the original development plan.

Another positive change in this amendment was a carve out to protect Everglades restoration. Changes within a DRI adjacent to the Everglades would need to go through Commission review.

American Coot. Photo: Mark Eden/Great Backyard Bird Count.

Environmental Management Bill Removes Unnecessary Review, but Keeps Concerning Language

HB 789, Environmental Management, by Rep. Overdorf (R-Palm City), passed the Infrastructure Strategies Committee this week with 16 yeas and 7 nays.

Concerning language that revises rules governing whether an individual may sue over damages to real and personal property (but not environmental harm) from a discharge or other pollution not authorized by government remains in the bill. This language would prohibit claims for damage to the environment caused by oil spills from drilling, pipelines, and tankers.

The Senate companion, SB 738 (Sen. Burgess (R-Zephyrhills), passed the Fiscal Policy Committee (Chair, Sen. Hutson (R-St. Augustine)).

A removed provision would have unnecessarily required DEP and water management districts to conduct reviews of their coastal permitting processes and permit programs and to submit reports of their findings and recommendations to the Governor and Florida Legislature by December 2024. Included in this review were coastal construction control line permits, section 404 permits, and permitting processes related to water supply infrastructure, wastewater infrastructure, and onsite sewage treatment and disposal systems.

Like HB 789, this bill also includes the concerning language that an individual may sue only for damages to real and personal property (but not environmental harm) from a discharge or other pollution not authorized by government, including oil spills. We hope to see further changes to this provision on the House or Senate floor.

Cooper's Hawk. Photo: Shawn Weber/Audubon Photography Awards.

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