To revise and clarify the process for assessing administrative fines for violations on state-owned land. The proposed amendments allow The Department of Environmental Protection (“DEP”) to first issue a warning letter to a suspected responsible ...

BOARD OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND

Rule No.: RULE TITLE
18-14.001: Definitions
18-14.002: Determination of Fines
18-14.003: Violations
18-14.004: Applicability
18-14.005: Imposition and Collection of Fines
PURPOSE AND EFFECT: To revise and clarify the process for assessing administrative fines for violations on state-owned land. The proposed amendments allow The Department of Environmental Protection (“DEP”) to first issue a warning letter to a suspected responsible party instead of a Notice of Violation if it is deemed more appropriate to begin with an informal action. Currently, Chapter 18-14, F.A.C., requires staff to issue a Notice of Violation, a formal administrative action, to provide an initial notice of suspected violations and begin the assessment of potential fines. The proposed amendments remove this requirement and allow DEP to reduce the initial notice from a formal administrative process to an informal warning letter to suspected responsible parties providing a period of time to correct potential violations. If the suspected responsible party fails to comply with the requirements of the warning letter, DEP may assess and collect fines through a formal administrative proceeding. Additionally, proposed amendments will also allow DEP to settle matters in accordance with Section 120.57(4), F.S., without first issuing a Notice of Violation. This change will allow for a process that is more efficient for staff and more transparent and accessible for the public. Further, the amendments make it a violation of the rule to fail to comply with an order of the Board of Trustees of the Internal Improvement Trust Fund or to fail to comply with a condition of authorization to locate a structure or vessel on state land. Lastly, the amendments allow DEP to not impose fines on a responsible party that has no history of prior violations, ceases the violations immediately, and completes corrective measures within 20 days of receipt of a warning from DEP of potential violations.
SUMMARY: Method for notifying suspected responsible parties of potential violations, required corrective actions, and assessment and collection of administrative fines for violations on state-owned lands.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule is not likely to alter the number or composition of violators. The agency expects the rule to lower implementation and enforcement costs to DEP from approximately $500 – $1,000 per case to approximately $100-$500 per case. The agency does not expect the rule to have any effect on such costs to any other state or local government entities. The agency expects a possible increase in revenues from increased penalties, the magnitude of which remains uncertain. Likewise, due to a lack of available data, the agency cannot estimate the particular effect of this rule on small businesses.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 253.04(2) FS.
LAW IMPLEMENTED: 253.04 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: December 17, 2010, 9:30 a.m. EDT
PLACE: Department of Environmental Protection, Bob Martinez Bldg, Room 611, 2600 Blair Stone Road, Tallahassee, FL. Toll Free Teleconference Number [phone], conference code 2458486
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Mary VanTassel at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Donna Kendall, Florida Department of Environmental Protection, Office of Submerged Lands and Environmental Resources – MS 2500, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, telephone [phone], or e-mail: [e-mail]. Further information and updates on this proposed rule also may be obtained from the Department’s Web Site at: http://www.dep.state.fl.us/water/rules_dr.htm#erp. (OGC No. 08-0631)

THE FULL TEXT OF THE PROPOSED RULE IS:

18-14.001 Definitions.

As used in this rule chapter:

(1) No change.

(2) “Department” means the State of Florida Department of Environmental Protection as staff for the Board.

(3) “Fine” means a monetary assessment imposed on a person or the agent of a person who willfully damages state lands, willfully damages or removes products of state lands in violation of state or federal law, or knowingly refuses to comply with or willfully violates Chapter 253, F.S.

(3)(4) “Offense” means each day during any portion of which a violation of Chapter 253, F.S., or the rules promulgated thereunder and this rule occurs. Each day during any portion of which a violation occurs constitutes a separate offense.

(4)(5) “Person” means individuals, partnerships, corporations, limited liability companies, joint ventures, estates, trusts, syndicates, fiduciaries, firms and all other associations and combinations, whether public or private, including the United States of America and other governmental entities. firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations; and a political subdivision of the state.

(5)(6) “Products” means, without limitation, indigenous, planted or exotic trees and other vegetation, or portions thereof; coral; pre-cut submerged timber; peat; solid minerals, phosphate, or limestone; oil or gas; metals; or other inorganic material, such as sand or gravel. For purposes of this rule, animal wildlife within the jurisdiction of the Florida Fish and Wildlife Conservation Commission and seashells shall not be considered products of state lands.

(6)(7) “State land” means that land, title to which is vested in the Board pursuant to Section 253.03, F.S.

Rulemaking Specific Authority 253.04(2) FS. Law Implemented 253.04 FS. History–New 7-7-85, Formerly 16Q-14.01, Transferred from 16Q-14.001, Amended________.

 

18-14.002 Determination of Fines.

(1) A person or agent of a person who willfully damages state land, willfully damages or removes products from state land in violation of state or federal law, or knowingly refuses to comply with or willfully violates the provisions of Chapter 253, F.S., shall also be in violation of this chapter rule and shall incur a fine up to $10,000 per offense.

(2) When determining the amount of a fine to be imposed, the Board shall consider:

(a) through (d) No change.

(e) Aggravating or mitigating circumstances specific to the violation, including the nature and extent of the violation, a violator’s history of non-compliance, a violator’s degree of cooperation in correcting the violation and a violator’s good faith efforts to negotiate a settlement before formal legal proceedings begin; and

(f) No change.

(3) Payment of all or part of a fine may be waived when purposes of Chapter 253, F.S., the law and the rules promulgated thereunder this rule are not frustrated, and when fairness would result.

(4) Fines will accrue from the first day the violation began. Fines imposed pursuant to this rule shall be:

(a) $500 – $5,000 $1 – $2,500 for the first offense; and

(b) $2,500 – $10,000 per day $1,000 – $10,000 for the second or subsequent offenses.

(c) Fines for first offenses may exceed $5,000 per day $2,500 upon approval by the Board.

(5) Fines shall not be imposed for the first offense if, after being warned by the Department in writing that a violation may exist, the suspected violator ceases the potential violation immediately, has no history of prior violations of this chapter, and completes corrective measures within 20 days of receiving the warning.

Rulemaking Specific Authority 253.04(2) FS. Law Implemented 253.04 FS. History–New 7-7-85, Formerly 16Q-14.02, Transferred from 16Q-14.002, Amended________.

 

18-14.003 Violations.

(1) It shall be a violation of this chapter rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., or rules promulgated thereunder, willfully violate any provision of Chapter 253, F.S., or rules promulgated thereunder, or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following:

(a)(1) Fill, excavate, or dredge, including prop dredging in a manner that which produces a defined channel or damage to resources, on state land without a the lease, license, easement, or other form of authorization consent required by the Board.

(b)(2) Remove, in violation of state or federal law, any product from state land without written approval or specific exemption from the Board or Department.

(c)(3) Discharge or release contaminants, wastes, effluents, sewage or any other pollutant as defined in Chapter 376 or Chapter 403, F.S., on, under or over state land; when such discharge is in violation of Chapter 376 or 403, F.S., or conditions of a permit issued pursuant to those chapters that chapter, or conditions of a lease, or easement, or other form of authorization issued pursuant to Chapter 253, F.S.

(d)(4) Maintain, place or build permanent or temporary structures, such as including, but not limited to, additions to existing structures; all structures and activities whose use is not water-dependent; sanitary septic systems; fences, docks, and pilings, platforms, piers and decks; houses; oil rigs; and public or private utility installations on or over state land without authorization consent or authority from the Board or Department.

(e)(5) Place garbage, refuse, or debris on or over state land without authorization from approval by the Board or Department.

(f)(6) Any other willful act that causes damage to state land, or products thereof, when such activity occurs without the required authorization from approval by the Board or Department.

(2) It shall also be a violation of this chapter for any person or the agent of any person to fail to comply with an order of the Board, or fail to comply with any condition of a lease, easement, or other form of authorization.

Rulemaking Specific Authority 253.04(2) FS. Law Implemented 253.04 FS. History–New 7-7-85, Formerly 16Q-14.03, Transferred from 16Q-14.003, Amended________.

 

18-14.004 Applicability.

For purposes of imposing a fine pursuant to this rule chapter, an activity conducted on state lands shall not be considered a violation of Chapter 253, F.S., or this rule chapter, when the activity is authorized by and conducted according to a management plan, easement, letter of consent, license, or lease approved by the Board or by an authorized agent of the Board who has been expressly delegated the authority to approve such management plan, easement, letter of consent of use, license or lease.

Rulemaking Specific Authority 253.04(2) FS. Law Implemented 253.04 FS. History–New 7-7-85, Formerly 16Q-14.04, Transferred from 16Q-14.004, Amended________.

 

18-14.005 Imposition and Collection of Fines.

Fines shall be imposed and collected by the Board pursuant to Section 253.04(2) and Chapter 120, F.S. Nothing in this rule chapter shall be construed to preclude the Board from bringing suits or taking action as is otherwise lawfully authorized against any person or the agent of any person who has been found to have damaged state land or products thereof; provided, however, that any administrative fines imposed pursuant to this rule chapter shall be in lieu of monetary damages authorized pursuant to Section 253.04, F.S., for the same offense.

(1) When the Department determines that imposition of a fine is appropriate, Before any fine can be imposed, the Secretary of the Department or the appropriate Director of District Management shall issue a notice of violation to suspected and known violators giving notice of the violation and specifying the violator’s rights under Chapter 120, F.S., or shall resolve the matter in accordance with Section 120.57(4), F.S. Such notice of violation shall be served on the violator by actual delivery; by service of process in accordance with Florida Rules of Civil Procedure; or by certified mail, return receipt requested.; The notice and shall identify the provision of law or rule alleged to have been violated. The notice of violation shall include a brief statement of the facts constituting the alleged violation and the basis for the claim that the land affected by the alleged violation is owned by the state.

(2) The notice shall demand that the violation cease immediately, and that the violator take reasonable corrective measures within 20 days. The notice shall state that if a violation is not stopped immediately and corrected within 20 days or at a later time agreed to by the Department and the violator, a fine shall be considered imposed. The notice shall state the amount of fine imposed as of the date of issuance of the notice. The notice shall state that the fine shall continue to accrue each day the violation remains uncorrected after the date of issuance of the notice.

(3) All fines imposed pursuant to this chapter are Upon imposition of a fine, the Secretary of the Department shall issue a certified letter to the violator demanding payment to the Internal Improvement Trust Fund within 15 days of receipt. If payment is not received by the Department within such 15 day period or at a later time agreed to by the Department and the violator, the fine shall become a lien upon the real and personal property of the violator, enforceable by the Department as a statutory lien pursuant to Chapter 85, F.S.

(4) No change.

(5) Upon notice of the violation, if any person or agent of any person ceases the activity alleged to be in violation of this rule and Chapter 253, F.S.; makes application to the Department for the required form of consent to use the state land at issue; and agrees to remove any structure or fill in violation, or to restore any excavation or dredging in violation; then the Secretary of the Department shall have the authority to fix, impose and collect a fine not to exceed $2,500 per offense.

Rulemaking Specific Authority 253.04(2) FS. Law Implemented 253.04 FS. History–New 7-7-85, Formerly 16Q-14.05, Transferred from 16Q-14.005, Amended________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Janet G. Llewellyn, Director, Division of Water Resource Management
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Trustees of the Internal Improvement Trust Fund
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 11, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: October 2, 2009