First Mining-Related Bill Filed – Senator Bennett – SB 2406 - 2/28/08

As we assumed, a bill (SB 2406) has been filed by Senator Bennett which includes language that would remove county government authority over mining in the DR/GR. The report comes from the Legislative Staff Attorney for the Florida Association of Counties. We will be including the legislators who will be considering this bill and others in the upcoming email campaign. 

“Today, Senator Bennett filed SB 2406 relating to aggregate mining.  To review the bill, please click here:  http://www.flsenate.gov/data/session/2008/Senate/bills/billtext/pdf/s2406.pdf. 

The bill prohibits local governments from enacting or enforcing any ordinance, resolution, regulation, rule, policy, or other action that prohibits or prevents the construction or operation of a limestone mine on lands where mining is a permissible use or on lands zoned or classified as mining lands on or after March 1, 2007.  It also provides an expedited permitting process for environmental resource permits that are issued by the Department of Environmental Protection. 

The preemption is obviously extremely problematic.  Mining could be considered a “permissible use” where it is contained as a special use or special exception within an agricultural zoning district.  However, a special use permit or special exception would still be required on a case-by-case basis, because the Commission would need to consider on a whether any land use compatibility issues exist for a particular project.  “Agriculture” is often used as a catch-all zoning district, and mining is often included within that use.  That doesn’t mean that mining is necessary a compatible use – it would depend on contiguous uses.  Because the bill language refers to land zoned “or classified” as mining lands, I am also concerned that land could be classified by the property appraiser as mining lands without the land necessarily being zoned that way.  I am certain that the word “classified” appears here for a reason that pertains to something other than zoning.

This language is similar if not identical to language that appeared as a council bill within the House Environment and Natural Resources Council last year.  This year, we have been told to expect a Council bill filed by Representative Kreegel, which will likely be the companion to SB 2406.  It is not yet clear whether these bills will move.  There is another effort underway within the transportation context to address this issue.  That effort is not as likely to contain preemption.  However, I have heard two concepts discussed with frequency: (1) a ban on local government moratoria, and (2) requiring local governments to deny the siting of a mine by a supermajority if the mining applicant first obtains its environmental resource and industrial wastewater permits from the Department of Environmental Protection.  Part of that concept might include some kind of appeal to the Cabinet.  If those concepts or others get folded into a bill, they may only pertain to counties designated as “aggregate resource counties.”  There has been some debate over which counties could legitimately be considered aggregate resource counties.  There has also been some debate over whether those counties should receive some kind of required mitigation for traffic impacts caused by trucks hauling aggregate from mining operations, as well as who ought to foot the bill for that – the Department of Transportation, the mining industry, or both.  The details are not yet clear, so I will keep you posted as the issue develops further.”

Diana Ferguson

Legislative Staff Attorney

Florida Association of Counties

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