Third Quarter 2008

2008 Florida Legislative Update

Holland & Knight Newsletter
Lawrence N. Curtin | Lawrence E. Sellers
The Florida Legislature concluded its annual regular session on May 2, 2008. During the 60-day session, the Legislature considered a number of environmental and land use measures. The following are a few measures that passed.

Administrative Procedures
CS/CS/SB 704 creates the Open Government Act. Among other things, it provides for additional restrictions for the use of unadopted rules and creates incentives for agencies to promulgate rules rather than rely on unadopted rules to implement their statutory responsibilities. The bill also increases from $15,000 to $50,000 the limits on attorneys’ fees that may be awarded in challenges to proposed and existing rules. In addition, the bill makes changes to the rulemaking process to enhance public participation, and it provides for the on-line electronic publication of the Florida Administrative Code.

Brownfield Redevelopment
CS/HB 527 revises the Brownfield Redevelopment Act and establishes a new tax credit for an additional 25 percent of total site rehabilitation costs, up to $500,000, and a bonus for the construction and operation of a health care facility or health care provider on a brownfield site. The bill expands the Brownfield Areas Loan Guarantee Program. The bill also clarifies the requirements for submittals of site rehabilitation and tax credit applications, and it reduces or eliminates some of the requirements for brownfield area designations and for brownfield site rehabilitation agreements. In addition, the bill extends tax credits to sites involving the removal of solid waste. Finally, the bill amends the Innocent Victim Petroleum Storage System Restoration Program in an effort to allow initial petroleum contaminated sites to remain eligible for state-funded clean-up.

Clean-Up of Contaminated Sites
HB 961 increases the restoration cap amount for the Petroleum Participation Program and for the Florida Petroleum Liability and Restoration Insurance Program.

Developments of Regional Impact
CS/SB 1706 provides an exemption from the DRI law for a proposed biotech project in South Florida. It also includes language clarifying the three-year extension of build-out dates enacted in 2007. This bill was vetoed by Governor Charlie Crist.
CS/CS/SB 682, a transportation bill, also establishes a DRI exemption for port-related facilities within three miles of the port. In addition, the bill directs the Florida Department of Transportation (DOT) to establish an approved methodology that recognizes that a planned, sustainable DRI will likely achieve an internal capture rate greater than 30 percent when fully developed. This bill also was vetoed by Governor Crist.

HB 7135 is a comprehensive energy bill that will impact virtually every sector of Florida’s economy, including: utilities; the construction and transportation industries; renewable energy developers; biofuel companies; solid waste and recycling companies; and local governments. The bill contains many, but not all, of Governor Crist’s energy objectives set forth in Executive Orders 07-126, 07-127 and 07-128. Among other things, the bill: provides for state government to “lead-by-example” in energy conservation and efficiency; authorizes the Department of Environmental Protection (DEP) to develop a marked-based regulatory program to reduce greenhouse gas (GHG) emissions from electric utilities, but delays the effective date of such regulations until ratified by the Legislature; streamlines the Florida Electrical Power Plant Siting Act (PPSA) to facilitate the siting of low-carbon emitting electrical plants; amends the Florida Energy Efficiency and Conservation Act and requires the Public Service Commission (PSC) to adopt rules that encourage electric utilities to increase energy efficiency and demand-side renewable energy systems; requires the PSC to adopt renewable portfolio standards (RPS) for electric utilities, but delays the effective date of those regulations until ratified by the Legislature; establishes a preference for climate-friendly products and “green” facilities for purposes of awarding state contracts; establishes a schedule to increase energy efficiency in buildings subject to the Florida Energy Efficiency Code for building construction; establishes increased energy efficiency standards for water heaters, dishwashers and swimming pools; establishes a renewable fuel standard for Florida and requires that by 2010, with limited exceptions, all gasoline sold in this state must contain at least 10 percent ethanol; and repeals the Florida Energy Commission and creates the new 12-member Florida Energy and Climate Commission that is charged with developing, coordinating and implementing energy policies for the state.
Holland & Knight recently held a seminar on the impacts of HB 7135. If you would like further information, please contact Bruce May at or call 850.425.5607.

Florida Forever
CS/CS/SB 542 extends the current Florida Forever land preservation program for 10 years and increases the bonding capacity from $3 billion to $5.3 billion. The $300 million per year cap is retained. The bill expands the scope of the program to include the protection of agricultural lands and working waterfronts from conversion to other land uses. The bill also provides for the recovery and management of imperiled species through the acquisition and management of ecosystems and by providing incentives to public and private landowners to participate in such activities.

Gambling Vessels/Clean Ocean Act
CS/CS/SB’s 1094 and 326 creates the Clean Ocean Act and requires owners or operators of gambling vessels (so-called “day cruises”) to register with DEP. The bill also requires an owner or operator of a gambling vessel berth location to establish procedures for the release of waste from gambling vessels and to make available a waste management service to handle and dispose of the vessel’s waste. Gambling vessels that release any waste in the coastal waters must report the release to DEP within 24 hours.

CS/CS/SB 1294 includes a provision that prohibits the issuance of a permit for a Class I landfill that will be located on or adjacent to a Class III landfill that was permitted on or before January 1, 2006, and is located in the Southern Water Use Caution Area (SWUCA). This provision is designed to prohibit the issuance of permits for the expansion of a landfill in the City of Bartow.

Recycling Goal and Recyclable Materials
The energy bill, HB 7135, also includes provisions relating to recycling. One provision establishes a long-term recycling goal of 75 percent, and it requires DEP to establish a comprehensive recycling program designed to achieve that goal by 2020. The program is to be developed in coordination with public and private stakeholders. The program is to be submitted to the Legislature by January 1, 2010, but may not be implemented until approved by the Legislature.
Another provision in HB 7135 requires DEP to undertake an analysis of the need for different regulation of auxiliary containers, wrappings, or disposable plastic bags used by consumers to carry products from retail establishments. The analysis is to include input from a variety of stakeholders and is to be included in a report submitted to the Legislature by no later than February 1, 2010. Until the Legislature enacts any recommendations, local and state governments are prohibited from adopting any rule or ordinance regarding the use, disposition, sale, prohibition, restriction or tax of such auxiliary containers, wrappings or disposable plastic bags.

Water Quality Credit Trading
CS/HB 547 authorizes DEP to adopt rules to implement a water quality credit trading program.
In our next Environment newsletter, we will summarize some of the notable bills that died in 2008, including those that are likely to be considered again in 2009.
Our comprehensive summary of the 2008 Florida Legislative Session is available at:

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