Florida Senate - 2010 CS for CS for SB 2000
By the Committees on Environmental Preservation and
Conservation; and Commerce; and Senator Ring
592-03552-10 20102000c2
1 A bill to be entitled
2 An act relating to ports; amending ss. 161.055 and
3 253.002, F.S.; conforming provisions to changes made
4 by the act; amending s. 311.09, F.S.; requiring the
5 Department of Transportation to include certain
6 seaport projects and funding related to the Florida
7 Seaport Transportation and Economic Development grant
8 program in its legislative budget request; requiring
9 the department to submit work program amendments
10 requested by the Florida Seaport Transportation and
11 Economic Development Council within a certain
12 timeframe; amending s. 373.403, F.S.; revising the
13 definition for “stormwater management system” to
14 exempt certain structures from regulation; creating s.
15 373.4133, F.S.; providing legislative findings;
16 providing for port conceptual permits; providing which
17 ports may apply for a port conceptual permit;
18 authorizing a private entity that has adjacent
19 property to apply for a permit; specifying the length
20 of time for which a permit may be issued; providing
21 that a conceptual permit is the state’s water quality
22 compliance certification and conceptual determination
23 of consistency with the state’s coastal zone
24 management program; providing for permit applications
25 and application requirements; requiring the department
26 to effect a certain balance between the benefits of
27 the facility and the environment; providing that a
28 permit provides certain assurances with respect to
29 construction permits if certain requirements are met;
30 providing for advance mitigation; providing that
31 certain actions may not be delegated by the Board of
32 Trustees of the Internal Improvement Trust Fund;
33 providing an exception for sovereignty submerged
34 lands; providing procedures for the approval or denial
35 of an application; providing for administrative
36 challenges; authorizing the department and the board
37 to issue certain permits and authorizations before
38 certain actions are taken under the Endangered Species
39 Act; authorizing the department and the board to adopt
40 rules; amending s. 403.061, F.S.; removing the
41 requirement for the Department of Environmental
42 Protection to enter into memoranda of agreement
43 relating to the issuance of certain joint coastal
44 permits or other permits with the Florida Ports
45 Council; amending s. 403.813, F.S.; revising
46 requirements relating to maintenance dredging at
47 seaports; revising the mixing zone and a requirement
48 relating to the discharge of return water; increasing
49 the time allowance for maintenance dredging after a
50 storm event; providing an effective date.
51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Subsection (1) of section 161.055, Florida
55 Statutes, is amended to read:
56 161.055 Concurrent processing of permits.—
57 (1) If When an activity for which a permit is required
58 under this chapter also requires a permit, authorization, or
59 approval described in paragraph (2)(b), or a port conceptual
60 permit under s. 373.4133, the department may, by rule, provide
61 that the activity may be undertaken only upon receipt of a
62 single permit from the department called a “joint coastal
63 permit,” as provided in this section.
64 Section 2. Subsection (2) of section 253.002, Florida
65 Statutes, is amended to read:
66 253.002 Department of Environmental Protection, water
67 management districts, Fish and Wildlife Conservation Commission,
68 and Department of Agriculture and Consumer Services; duties with
69 respect to state lands.—
70 (2) Delegations to the department, or a water management
71 district, or the Department of Agriculture and Consumer Services
72 of authority to take final agency action on applications for
73 authorization to use submerged lands owned by the Board of
74 Trustees of the Internal Improvement Trust Fund, without any
75 action on behalf of the board of trustees, shall be by rule;
76 however, delegations related to conceptual permits must be in
77 accordance with s. 373.4133. Until rules adopted pursuant to
78 this subsection become effective, existing delegations by the
79 board of trustees shall remain in full force and effect.
80 However, the board of trustees is not limited or prohibited from
81 amending these delegations. The board of trustees shall adopt by
82 rule any delegations of its authority to take final agency
83 action without action by the board of trustees on applications
84 for authorization to use board of trustees-owned submerged
85 lands. Any final agency action, without action by the board of
86 trustees, taken by the department, or a water management
87 district, or the Department of Agriculture and Consumer Services
88 on applications to use board of trustees-owned submerged lands
89 is shall be subject to the provisions of s. 373.4275.
90 Notwithstanding any other provision of this subsection, the
91 board of trustees, the Department of Legal Affairs, and the
92 department retain the concurrent authority to assert or defend
93 title to submerged lands owned by the board of trustees.
94 Section 3. Subsection (10) of section 311.09, Florida
95 Statutes, is amended to read:
96 311.09 Florida Seaport Transportation and Economic
97 Development Council.—
98 (10) The Department of Transportation shall include in its
99 annual legislative budget request a Florida Seaport
100 Transportation and Economic Development grant program for
101 expenditure of funds of not less than $8 million per year. The
102 Such budget request must shall include funding for projects
103 approved by the council which have been determined by each
104 agency to be consistent and which have been determined by the
105 Office of Tourism, Trade, and Economic Development to be
106 economically beneficial.
107 (a) The department shall include a list of the approved
108 seaport projects from the tentative work program developed
109 pursuant to s. 339.135(4) which are to be funded during the next
110 fiscal year. The department shall also include the total amount
111 of funding under s. 311.07 to be allocated to seaport projects
112 during the successive 4 fiscal years of the tentative work
113 program.
114 (b) The council may submit to the department a list of
115 approved projects that could be made production-ready within the
116 next 2 years. The list shall be submitted as part of the needs
117 and project list prepared pursuant to s. 339.135(2)(b) 339.135.
118 Upon the written request of the council, the department shall
119 submit work program amendments pursuant to s. 339.135(7) to the
120 Governor within 10 days after the date the request is received
121 by the department, or the effective date of the amendment,
122 termination, or closure of the applicable funding agreement
123 between the department and the seaport required to release the
124 funds from the existing commitment, whichever occurs later.
125 Section 4. Subsection (10) of section 373.403, Florida
126 Statutes, is amended to read:
127 373.403 Definitions.—When appearing in this part or in any
128 rule, regulation, or order adopted pursuant thereto, the
129 following terms mean:
130 (10) “Stormwater management system” means a system that
131 which is designed and constructed or implemented to control
132 discharges that which are caused necessitated by rainfall
133 events, incorporating methods to collect, convey, store, absorb,
134 inhibit, treat, use, or reuse water to prevent or reduce
135 flooding, overdrainage, environmental degradation, and water
136 pollution or otherwise affect the quantity and quality of
137 discharges from the system. Overwater piers, docks, and similar
138 structures located in a port listed in s. 311.09(1) are not part
139 of a stormwater management system and are not considered
140 impervious surfaces under this chapter or chapter 403 if the
141 port has a stormwater pollution prevention plan developed
142 pursuant to the National Pollution Discharge Elimination System.
143 Section 5. Section 373.4133, Florida Statutes, is created
144 to read:
145 373.4133 Port conceptual permits.—
146 (1) The Legislature finds that seaport facilities are
147 critical infrastructure facilities that significantly support
148 the economic development of the state. The Legislature further
149 finds that it is necessary to provide a method of permit review
150 that allows seaports in this state to become internationally
151 competitive.
152 (2) Any port listed in s. 311.09(1) may apply to the
153 department for a port conceptual permit, which may include
154 authorization to use sovereignty submerged lands under chapter
155 253 under a joint coastal permit issued pursuant to s. 161.055
156 or an environmental resource permit issued pursuant to this part
157 for all or a portion of the area within the geographic
158 boundaries of the port. A private entity that has a controlling
159 interest in property used for private industrial marine
160 activities in the immediate vicinity of such port may also apply
161 under this section. A port conceptual permit may be issued for
162 up to 20 years and extended once for 10 additional years. A port
163 conceptual permit constitutes the state’s conceptual water
164 quality compliance certification for purposes of s. 401 of the
165 Clean Water Act, and the state’s conceptual determination that
166 the activities contained in the permit are consistent with the
167 state’s federally approved coastal zone management program.
168 (3) A port conceptual permit application must include
169 sufficient information to provide reasonable assurance that the
170 engineering and environmental concepts upon which the designs
171 are based are likely to meet applicable rule criteria for the
172 issuance of construction permits for subsequent phases of the
173 project. At a minimum, the application should include
174 projections of costs, revenue, and job creation for proposed
175 development; proposed construction areas and areas where
176 construction will not occur; estimated or maximum anticipated
177 impacts to wetlands and other surface waters, and any proposed
178 mitigation for those impacts; estimated or maximum amount of
179 anticipated impervious surface and the nature of the stormwater
180 treatment system for those areas; and the general location and
181 types of activities on sovereignty submerged lands. Except where
182 construction approval is requested as part of the application,
183 the application is not expected to include final design
184 specifications and drawings. The department shall specify any
185 additional information that must be submitted as part of a
186 request for a subsequent construction permit or authorization in
187 the port conceptual permit.
188 (4) In determining whether a port conceptual permit
189 application should be approved in whole, with modifications or
190 conditions, or denied, the department shall effect a reasonable
191 balance between the potential benefits of the facility and the
192 impacts upon water quality, fish and wildlife, water resources,
193 and other natural resources of the state resulting from the
194 construction and operation of the facility.
195 (5) A port conceptual approval permit provides the
196 permitholder with assurance during the duration of the permit
197 that the engineering and environmental concepts upon which the
198 designs are based are likely to meet applicable rule criteria
199 for the issuance of construction permits for subsequent phases
200 of the project if:
201 (a) There are no changes in the rules governing the
202 conditions of issuance of permits for future phases of the
203 project and the conceptual approval permit is not inconsistent
204 with any total maximum daily load or basin management action
205 plan adopted for the water body into which the system discharges
206 or is located pursuant to s. 403.067(7) and rule 62-304, Florida
207 Administrative Code; and
208 (b) Applications for proposed future phase activities under
209 the permit are consistent with the design and conditions of the
210 permit. Primary areas for consistency comparisons include the
211 size, location, and extent of the system; type of activity;
212 percent imperviousness; allowable discharge and points of
213 discharge; location and extent of wetland and other surface
214 water impacts and proposed mitigation plan, if required; control
215 elevations; extent of stormwater reuse; and detention-retention
216 volumes. If an application for subsequent phase activity is not
217 consistent with the terms and conditions of the approved permit,
218 the applicant may request a modification of the permit to
219 resolve the inconsistency or may request that the application be
220 processed independently of the permit.
221 (6) Notwithstanding any other provision of law, a port
222 conceptual permit or associated construction permit, including
223 any applicable sovereignty submerged lands authorization, may
224 authorize advance mitigation for impacts expected as a result of
225 the activities described in the port conceptual permit. Such
226 advance mitigation shall be credited to offset the impacts of
227 the activities when undertaken to the extent that the advance
228 mitigation is successful.
229 (7) Final agency action on a port conceptual sovereignty
230 submerged lands authorization associated with a port conceptual
231 permit may not be delegated by the Board of Trustees of the
232 Internal Improvement Trust Fund. However, approval of the
233 authorization by the board delegates to the department authority
234 to take final agency action on behalf of the board on any
235 sovereignty submerged lands authorization necessary to construct
236 facilities included in the authorization, unless a member of the
237 board specifically requests that final agency action be brought
238 before the board. Any delegation to the department concerning a
239 private project does not exempt the private project from
240 applicable board rules, including lease and easement fees.
241 (8) Except as otherwise provided in this subsection, the
242 following procedures apply to the approval or denial of an
243 application for a port conceptual permit, or a final permit or
244 authorization:
245 (a) Applications for a port conceptual permit, including
246 any request for the conceptual approval of the use of sovereign
247 submerged lands, must be processed in accordance with ss.
248 373.427 and 120.60. However, if the applicant believes a request
249 for additional information is not authorized by law or agency
250 rule, the applicant may request an informal hearing pursuant to
251 s. 120.57(2) before the secretary of the department to determine
252 whether the application is complete.
253 (b) Upon issuance of the department’s notice of intent to
254 issue or deny a port conceptual permit, the applicant shall
255 publish a one-time notice of such intent, prepared by the
256 department, in the newspaper having the largest general
257 circulation in the county or counties where the port is located.
258 (c) Final agency action on a port conceptual permit is
259 subject to challenge under ss. 120.569 and 120.57. However,
260 final agency action to authorize subsequent construction of
261 facilities contained in a port conceptual permit may be
262 challenged only by a third party for consistency with the port
263 conceptual permit.
264 (d) A person who will be substantially affected by a final
265 agency action described in paragraph (c) must initiate
266 administrative proceedings pursuant to ss. 120.569 and 120.57
267 within 21 days after the publication of the notice of the
268 proposed action. If administrative proceedings are requested,
269 the proceedings are subject to the summary hearing provisions of
270 s. 120.574. However, if the decision of the administrative law
271 judge will be a recommended order, rather than a final order, a
272 summary proceeding must be conducted within 90 days after a
273 party files a motion for summary hearing regardless of whether
274 the parties agree to the summary proceeding.
275 (9) Notwithstanding any other provision of law, the
276 department and the Board of Trustees of the Internal Improvement
277 Trust Fund may issue permits and authorizations pursuant to this
278 section in advance of the issuance of a take authorization as
279 provided in the federal Endangered Species Act and its
280 implementing regulations. However, the permits and
281 authorizations must include a condition requiring that
282 authorized activities may not commence until such take
283 authorization is issued and such activities must be consistent
284 with such authorization. The department shall unilaterally
285 modify any permit or authorization issued pursuant to this
286 section to make the permit or authorization consistent with any
287 subsequently issued incidental take authorization. Such
288 unilateral modification does not create a point of entry for any
289 substantially affected person to request administrative
290 proceedings under ss. 120.569 and 120.57.
291 (10) The department and the Board of Trustees of the
292 Internal Improvement Trust Fund may adopt rules to administer
293 this section under the joint coastal permit provisions of
294 chapter 161, the sovereign lands provisions of chapter 253, and
295 the environmental resource permit provisions of this part.
296 Adoption of such rules is not subject to any special rulemaking
297 requirements related to small businesses. Notwithstanding this
298 grant of rulemaking authority, this section is intended to be
299 available effective July 1, 2010, and its implementation may not
300 be delayed pending the adoption of rules.
301 Section 6. Subsections (37) and (38) of section 403.061,
302 Florida Statutes, are amended to read:
303 403.061 Department; powers and duties.—The department shall
304 have the power and the duty to control and prohibit pollution of
305 air and water in accordance with the law and rules adopted and
306 promulgated by it and, for this purpose, to:
307 (37) Provide Enter into a memorandum of agreement with the
308 Florida Ports Council which provides a supplemental permitting
309 process for the issuance of a joint coastal permit pursuant to
310 s. 161.055 or environmental resource permit pursuant to part IV
311 of chapter 373, to a port listed in s. 311.09(1), for
312 maintenance dredging and the management of dredged materials
313 from maintenance dredging of all navigation channels, port
314 harbors, turning basins, and harbor berths. Such permit shall be
315 issued for a period of 5 years and shall be annually extended
316 for an additional year if the port is in compliance with all
317 permit conditions at the time of extension. The department may
318 is authorized to adopt rules to administer implement this
319 subsection.
320 (38) Provide Enter into a memorandum of agreement with the
321 Florida Ports Council which provides a supplemental permitting
322 process for the issuance of a conceptual joint coastal permit
323 pursuant to s. 161.055 or environmental resource permit pursuant
324 to part IV of chapter 373, to a port listed in s. 311.09(1), for
325 dredging and the management of materials from dredging and for
326 other related activities necessary for development, including
327 the expansion of navigation channels, port harbors, turning
328 basins, harbor berths, and associated facilities. Such permit
329 shall be issued for a period of up to 15 years. The department
330 may is authorized to adopt rules to administer implement this
331 subsection.
332
333 The department shall implement such programs in conjunction with
334 its other powers and duties and shall place special emphasis on
335 reducing and eliminating contamination that presents a threat to
336 humans, animals or plants, or to the environment.
337 Section 7. Subsection (3) of section 403.813, Florida
338 Statutes, is amended to read:
339 403.813 Permits issued at district centers; exceptions.—
340 (3) For maintenance dredging conducted under this section
341 by the seaports of Jacksonville, Port Canaveral, Fort Pierce,
342 Palm Beach, Port Everglades, Miami, Port Manatee, St.
343 Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
344 West, and Fernandina or by inland navigation districts:
345 (a) A mixing zone for turbidity is granted within a 100
346 meter radius from the point of dredging while dredging is
347 ongoing, except that the mixing zone may does not extend into
348 areas supporting wetland communities, submerged aquatic
349 vegetation, or hardbottom communities.
350 (b) The discharge of the return water from the site used
351 for the disposal of dredged material shall be allowed only if
352 such discharge does not result in a violation of water quality
353 standards in the receiving waters. The However, any such return
354 water discharge into receiving manmade waters shall be that are
355 not in Monroe County is granted a mixing zone for turbidity
356 within a 150-meter radius from the point of discharge during and
357 immediately after the discharge while dredging is ongoing,
358 except that the mixing zone may does not extend into areas
359 supporting wetland communities, submerged aquatic vegetation, or
360 hardbottom communities outside the manmade waters. As used in
361 this paragraph, the term “manmade waters” means surface waters
362 that were wholly excavated from lands other than wetlands and
363 other surface waters or semienclosed port berths.
364 (c) The state may not exact a charge for material that this
365 subsection allows a public port or an inland navigation district
366 to remove.
367 (d) The use of flocculants at the site used for disposal of
368 the dredged material is allowed if the use, including supporting
369 documentation, is coordinated in advance with the department and
370 the department has determined that the use is not harmful to
371 water resources.
372 (e) This subsection does not prohibit maintenance dredging
373 of areas where the loss of original design function and
374 constructed configuration has been caused by a storm event if,
375 provided that the dredging is performed as soon as practical
376 after the storm event. Maintenance dredging that commences
377 within 3 2 years after the storm event is shall be presumed to
378 satisfy this provision. If more than 3 2 years are needed to
379 commence the maintenance dredging after the storm event, a
380 request for a specific time extension to perform the maintenance
381 dredging must shall be submitted to the department before, prior
382 to the end of the 3-year 2-year period, accompanied by a
383 statement, including supporting documentation, demonstrating
384 that contractors are not available or that additional time is
385 needed to obtain authorization for the maintenance dredging from
386 the United States Army Corps of Engineers.
387 Section 8. This act shall take effect July 1, 2010.