CS/CS/HB 963

1
A bill to be entitled
2An act relating to seaports; creating s. 373.4133, F.S.;
3providing legislative findings; providing for port
4conceptual permits; providing which ports may apply for a
5port conceptual permit; authorizing a private entity that
6has adjacent property to apply for a permit; specifying
7the length of time for which permit may be issued;
8providing that a permit is a conceptual certification of
9compliance with state water quality standards and a
10conceptual determination of consistency with the state
11coastal zone management program; providing for permit
12applications and application requirements; requiring the
13Department of Environmental Protection to effect a certain
14balance between the benefits of the facility and the
15environment; providing that a permit provides certain
16assurances with respect to construction permits if certain
17requirements are met; providing for advance mitigation;
18providing that approval of certain submerged lands
19authorization by the Board of Trustees of the Internal
20Improvement Trust Fund constitutes the delegation of
21authority to the department for final agency action;
22providing an exception; providing procedures for the
23approval or denial of an application; providing for
24administrative challenges; authorizing the department and
25the board to issue certain permits and authorizations
26before certain actions are taken under the Endangered
27Species Act; authorizing certain alternative stormwater
28treatment and design criteria; providing requirements for
29proposing such criteria; authorizing the department and
30the board to adopt rules; providing for implementation;
31amending s. 311.07, F.S.; revising matching-fund
32requirements for projects to rehabilitate wharves, docks,
33berths, bulkheads, or similar structures; amending s.
34311.09, F.S.; requiring the Department of Transportation
35to include certain projects' funding allocations in its
36legislative budget request and to submit specified work
37program amendments within a certain timeframe; providing
38for the transfer of unexpended balances between seaport
39projects; amending s. 403.061, F.S.; removing the
40requirement to enter into a memorandum of agreement with
41the Florida Ports Council from the authority granted to
42the Department of Environmental Protection to provide
43supplemental permitting processes for the issuance of
44certain permits; amending s. 403.813, F.S.; revising
45requirements relating to maintenance dredging at seaports;
46expanding the parameters for mixing zones and return-water
47discharges; prohibiting mixing zones from entering wetland
48communities; increasing the time allowance for maintenance
49dredging following a storm event; amending ss. 161.055 and
50253.002, F.S.; conforming provisions to changes made by
51the act; authorizing seaports to enter into public-private
52agreements for port-related public infrastructure
53projects; providing effective dates.
54
55Be It Enacted by the Legislature of the State of Florida:
56
57     Section 1.  Section 373.4133, Florida Statutes, is created
58to read:
59     373.4133  Port conceptual permits.-
60     (1)  The Legislature finds that seaport facilities are
61critical infrastructure facilities that significantly support
62the economic development of the state. The Legislature further
63finds that it is necessary to provide a method of priority
64permit review that allows seaports in this state to become
65internationally competitive.
66     (2)  Any port listed in s. 311.09(1) may apply to the
67department for a port conceptual permit, including any
68applicable authorization under chapter 253 to use sovereignty
69submerged lands under a joint coastal permit pursuant to s.
70161.055 or an environmental resource permit issued pursuant to
71this part, for all or a portion of the area within the
72geographic boundaries of the port. A private entity with a
73controlling interest in property used for private industrial
74marine activities in the immediate vicinity of a port listed in
75s. 311.09(1) may also apply for a port conceptual permit under
76this section. A port conceptual permit may be issued for a
77period of up to 20 years and extended one time for an additional
7810 years. A port conceptual permit constitutes the state's
79conceptual certification of compliance with state water quality
80standards for purposes of s. 401 of the Clean Water Act and the
81state's conceptual determination that the activities contained
82in the port conceptual permit are consistent with the state
83coastal zone management program.
84     (3)  A port conceptual permit application must contain
85sufficient information to provide reasonable assurance that the
86engineering and environmental concepts upon which the designs
87are based are likely to meet applicable rule criteria for
88issuance of construction permits for subsequent phases of the
89project. At a minimum, a port conceptual permit application must
90include the identification of proposed construction areas and
91areas where construction will not occur; the estimated or
92maximum anticipated impacts to wetlands and other surface waters
93and any proposed mitigation for those impacts; the estimated or
94maximum amount of anticipated impervious surface and the nature
95of the stormwater treatment system for those areas; and the
96general location and types of activities on sovereignty
97submerged lands. Except where construction approval is requested
98as part of a port conceptual permit application, the application
99is not required to include final design specifications and
100drawings. The department shall include conditions in the port
101conceptual permit specifying the additional information that
102must be submitted as part of any request for a subsequent
103construction permit or authorization.
104     (4)  In determining whether a port conceptual permit
105application shall be approved in whole, approved with
106modifications or conditions, or denied, the department shall
107effect a reasonable balance between the potential benefits of
108the facility and the impacts upon water quality, fish and
109wildlife, water resources, and other natural resources of the
110state resulting from the construction and operation of the
111facility.
112     (5)  A port conceptual permit provides the permitholder
113with assurance, during the duration of the permit, that the
114engineering and environmental concepts upon which the designs of
115the port conceptual permit are based are likely to meet
116applicable rule criteria for the issuance of construction
117permits for subsequent phases of the project, if:
118     (a)  There are no changes in the rules governing the
119conditions of issuance of permits for future phases of the
120project and the port conceptual permit is not inconsistent with
121any total maximum daily load or basin management action plan
122adopted for the waterbody into which the system discharges or is
123located pursuant to s. 403.067(7) and chapter 62-304, Florida
124Administrative Code; and
125     (b)  Applications for proposed future phase activities
126under the port conceptual permit are consistent with the design
127and conditions of the issued port conceptual permit. Primary
128areas for consistency comparisons include the size, location,
129and extent of the system; type of activity; percent of
130imperviousness; allowable discharge and points of discharge;
131location and extent of wetland and other surface water impacts
132and, if required, a proposed mitigation plan; control
133elevations; extent of stormwater reuse; and detention or
134retention volumes. If an application for any subsequent phase
135activity is made that is not consistent with the terms and
136conditions of the port conceptual permit, the applicant may
137request a modification of the port conceptual permit to resolve
138the inconsistency or that the application be processed
139independent of the port conceptual permit.
140     (6)  Notwithstanding any other provision of law, a port
141conceptual permit or associated construction permit, including
142any applicable sovereignty submerged lands authorization, may
143authorize advance mitigation for impacts expected as a result of
144the activities described in the port conceptual permit. Such
145advance mitigation shall be credited to offset the impacts of
146such activities when undertaken, to the extent that the advance
147mitigation is successful.
148     (7)  Final agency action on a port conceptual sovereignty
149submerged lands authorization associated with a port conceptual
150permit may not be delegated by the Board of Trustees of the
151Internal Improvement Trust Fund. However, approval of such an
152authorization by the board shall constitute a delegation of
153authority to the department to take final agency action on
154behalf of the board on any sovereignty submerged lands
155authorization necessary to construct facilities included in the
156port conceptual sovereignty submerged lands authorization,
157unless a member of the board specifically requests that final
158agency action be brought before the board. Any delegation of
159authority to the department concerning a private project does
160not exempt the private project from applicable rules of the
161board, including lease and easement fees.
162     (8)  Except as otherwise provided in this section, the
163following procedures apply to the approval or denial of an
164application for a port conceptual permit or a final permit or
165authorization:
166     (a)  Applications for a port conceptual permit, including
167any request for the conceptual approval of the use of
168sovereignty submerged lands, shall be processed in accordance
169with the provisions of ss. 373.427 and 120.60. However, if the
170applicant believes that any request for additional information
171is not authorized by law or agency rule, the applicant may
172request an informal hearing pursuant to s. 120.57(2) before the
173Secretary of Environmental Protection to determine whether the
174application is complete.
175     (b)  Upon issuance of the department's notice of intent to
176issue or deny a port conceptual permit, the applicant shall
177publish a one-time notice of such intent, prepared by the
178department, in the newspaper with the largest general
179circulation in the county or counties where the port is located.
180     (c)  Final agency action on a port conceptual permit is
181subject to challenge pursuant to ss. 120.569 and 120.57.
182However, final agency action to authorize subsequent
183construction of facilities contained in a port conceptual permit
184may only be challenged by a third party for consistency with the
185port conceptual permit.
186     (d)  A person who will be substantially affected by a final
187agency action described in paragraph (c) must initiate
188administrative proceedings pursuant to ss. 120.569 and 120.57
189within 21 days after the publication of the notice of the
190proposed action. If administrative proceedings are requested,
191the proceedings are subject to the summary hearing provisions of
192s. 120.574. However, if the decision of the administrative law
193judge will be a recommended order rather than a final order, a
194summary proceeding must be conducted within 90 days after a
195party files a motion for summary hearing, regardless of whether
196the parties agree to the summary proceeding.
197     (9)  Notwithstanding any other provision of law, the
198department and the board are authorized to issue permits and
199authorizations pursuant to this section in advance of the
200issuance of any take authorization as provided for in the
201Endangered Species Act and its implementing regulations if the
202permits and authorizations include a condition requiring that
203authorized activities shall not commence until such take
204authorization is issued and shall be consistent with such
205authorization. The department shall unilaterally modify any
206permit or authorization issued pursuant to this section to make
207the permit or authorization consistent with any subsequently
208issued incidental take authorization. Such a unilateral
209modification does not create a point of entry for any
210substantially affected person to request administrative
211proceedings under ss. 120.569 and 120.57.
212     (10)  In lieu of meeting the generally applicable
213stormwater design standards in rules adopted under this part,
214which create a presumption that stormwater discharged from the
215system will meet the applicable state water quality standards in
216the receiving waters, any port listed in s. 311.09(1) may
217propose alternative stormwater treatment and design criteria for
218the construction, operation, and maintenance of stormwater
219management systems serving overwater piers. The proposal shall
220include structural components or best management practices to
221address the stormwater discharge from the pier, including
222consideration of activities conducted on the pier, as are
223necessary to provide reasonable assurance that stormwater
224discharged from the system will meet the applicable state water
225quality standards in the receiving waters.
226     (11)  The department and the board may adopt rules to
227implement the provisions of this section under the joint coastal
228permit provisions of chapter 161, the sovereignty submerged
229lands provisions of chapter 253, and the environmental resource
230permit provisions of this part. The adoption of such rules is
231not subject to any special rulemaking requirements related to
232small business.
233     (12)  This section shall take effect upon this act becoming
234a law and its implementation may not be delayed by any
235rulemaking under this section.
236     Section 2.  Paragraph (a) of subsection (3) of section
237311.07, Florida Statutes, is amended to read:
238     311.07  Florida seaport transportation and economic
239development funding.-
240     (3)(a)  Program funds shall be used to fund approved
241projects on a 50-50 matching basis with any of the deepwater
242ports, as listed in s. 403.021(9)(b), which is governed by a
243public body or any other deepwater port which is governed by a
244public body and which complies with the water quality provisions
245of s. 403.061, the comprehensive master plan requirements of s.
246163.3178(2)(k), and the local financial management and reporting
247provisions of part III of chapter 218. However, program funds
248used to fund projects that involve the rehabilitation of
249wharves, docks, berths, bulkheads, or similar structures shall
250require a 25-percent match of funds. Program funds also may be
251used by the Seaport Transportation and Economic Development
252Council to develop with the Florida Trade Data Center such trade
253data information products which will assist Florida's seaports
254and international trade.
255     Section 3.  Subsection (10) of section 311.09, Florida
256Statutes, is amended to read:
257     311.09  Florida Seaport Transportation and Economic
258Development Council.-
259     (10)  The Department of Transportation shall include in its
260annual legislative budget request a Florida Seaport
261Transportation and Economic Development grant program for
262expenditure of funds of not less than $8 million per year. Such
263budget shall include funding for projects approved by the
264council which have been determined by each agency to be
265consistent and which have been determined by the Office of
266Tourism, Trade, and Economic Development to be economically
267beneficial. The department shall include the specific approved
268seaport projects to be funded under this section during the
269ensuing fiscal year in the tentative work program developed
270pursuant to s. 339.135(4). The total amount of funding to be
271allocated to seaport projects under s. 311.07 during the
272successive 4 fiscal years shall also be included in the
273tentative work program developed pursuant to s. 339.135(4). The
274council may submit to the department a list of approved projects
275that could be made production-ready within the next 2 years. The
276list shall be submitted by the department as part of the needs
277and project list prepared pursuant to s. 339.135(2)(b) s.
278339.135. However, the department shall, upon written request of
279the Florida Seaport Transportation and Economic Development
280Council, submit work program amendments pursuant to s.
281339.135(7) to the Governor within 10 days after the later of the
282date the request is received by the department or the effective
283date of the amendment, termination, or closure of the applicable
284funding agreement between the department and the affected
285seaport, as required to release the funds from the existing
286commitment. Notwithstanding s. 339.135(7)(c), any work program
287amendment to transfer prior year funds from one approved seaport
288project to another seaport project is subject to the procedures
289in s. 339.135(7)(d)2. Notwithstanding any provision of law to
290the contrary, the department may transfer unexpended balances
291between the seaport projects as identified in the approved work
292program amendments.
293     Section 4.  Subsections (37) and (38) of section 403.061,
294Florida Statutes, are amended to read:
295     403.061  Department; powers and duties.-The department
296shall have the power and the duty to control and prohibit
297pollution of air and water in accordance with the law and rules
298adopted and promulgated by it and, for this purpose, to:
299     (37)  Provide Enter into a memorandum of agreement with the
300Florida Ports Council which provides a supplemental permitting
301process for the issuance of a joint coastal permit pursuant to
302s. 161.055 or environmental resource permit pursuant to part IV
303of chapter 373, to a port listed in s. 311.09(1), for
304maintenance dredging and the management of dredged materials
305from maintenance dredging of all navigation channels, port
306harbors, turning basins, and harbor berths. Such permit shall be
307issued for a period of 5 years and shall be annually extended
308for an additional year if the port is in compliance with all
309permit conditions at the time of extension. The department is
310authorized to adopt rules to implement this subsection.
311     (38)  Provide Enter into a memorandum of agreement with the
312Florida Ports Council which provides a supplemental permitting
313process for the issuance of a conceptual joint coastal permit
314pursuant to s. 161.055 or environmental resource permit pursuant
315to part IV of chapter 373, to a port listed in s. 311.09(1), for
316dredging and the management of materials from dredging and for
317other related activities necessary for development, including
318the expansion of navigation channels, port harbors, turning
319basins, harbor berths, and associated facilities. Such permit
320shall be issued for a period of up to 15 years. The department
321is authorized to adopt rules to implement this subsection.
322The department shall implement such programs in conjunction with
323its other powers and duties and shall place special emphasis on
324reducing and eliminating contamination that presents a threat to
325humans, animals or plants, or to the environment.
326     Section 5.  Subsection (3) of section 403.813, Florida
327Statutes, is amended to read:
328     403.813  Permits issued at district centers; exceptions.-
329     (3)  For maintenance dredging conducted under this section
330by the seaports of Jacksonville, Port Canaveral, Fort Pierce,
331Palm Beach, Port Everglades, Miami, Port Manatee, St.
332Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
333West, and Fernandina or by inland navigation districts:
334     (a)  A mixing zone for turbidity is granted within a 150-
335meter 100-meter radius from the point of dredging while dredging
336is ongoing, except that the mixing zone may does not extend into
337areas supporting wetland communities, submerged aquatic
338vegetation, or hardbottom communities.
339     (b)  The discharge of the return water from the site used
340for the disposal of dredged material shall be allowed only if
341such discharge does not result in a violation of water quality
342standards in the receiving waters. The However, any such return-
343water discharge into receiving manmade waters shall be that are
344not in Monroe County is granted a mixing zone for turbidity
345within a 150-meter radius from the point of discharge during and
346immediately after the discharge while dredging is ongoing,
347except that the mixing zone may does not extend into areas
348supporting wetland communities, submerged aquatic vegetation, or
349hardbottom communities outside the manmade waters. As used in
350this paragraph, the term "manmade waters" means surface waters
351that were wholly excavated from lands other than wetlands and
352other surface waters or semienclosed port berths.
353     (c)  The state may not exact a charge for material that
354this subsection allows a public port or an inland navigation
355district to remove.
356     (d)  The use of flocculants at the site used for disposal
357of the dredged material is allowed if the use, including
358supporting documentation, is coordinated in advance with the
359department and the department has determined that the use is not
360harmful to water resources.
361     (e)  This subsection does not prohibit maintenance dredging
362of areas where the loss of original design function and
363constructed configuration has been caused by a storm event,
364provided that the dredging is performed as soon as practical
365after the storm event. Maintenance dredging that commences
366within 3 2 years after the storm event shall be presumed to
367satisfy this provision. If more than 3 2 years are needed to
368commence the maintenance dredging after the storm event, a
369request for a specific time extension to perform the maintenance
370dredging shall be submitted to the department, prior to the end
371of the 3-year 2-year period, accompanied by a statement,
372including supporting documentation, demonstrating that
373contractors are not available or that additional time is needed
374to obtain authorization for the maintenance dredging from the
375United States Army Corps of Engineers.
376     Section 6.  Subsection (1) of section 161.055, Florida
377Statutes, is amended to read:
378     161.055  Concurrent processing of permits.-
379     (1)  When an activity for which a permit is required under
380this chapter also requires a permit, authorization, or approval
381described in paragraph (2)(b), including a port conceptual
382permit pursuant to s. 373.4133, the department may, by rule,
383provide that the activity may be undertaken only upon receipt of
384a single permit from the department called a "joint coastal
385permit," as provided in this section.
386     Section 7.  Subsection (2) of section 253.002, Florida
387Statutes, is amended to read:
388     253.002  Department of Environmental Protection, water
389management districts, Fish and Wildlife Conservation Commission,
390and Department of Agriculture and Consumer Services; duties with
391respect to state lands.-
392     (2)  Delegations to the department, or a water management
393district, or the Department of Agriculture and Consumer Services
394of authority to take final agency action on applications for
395authorization to use submerged lands owned by the board of
396trustees, without any action on behalf of the board of trustees,
397shall be by rule, provided that delegations related to
398conceptual permits shall be in accordance with s. 373.4133.
399Until rules adopted pursuant to this subsection become
400effective, existing delegations by the board of trustees shall
401remain in full force and effect. However, the board of trustees
402is not limited or prohibited from amending these delegations.
403The board of trustees shall adopt by rule any delegations of its
404authority to take final agency action without action by the
405board of trustees on applications for authorization to use board
406of trustees-owned submerged lands. Any final agency action,
407without action by the board of trustees, taken by the
408department, or a water management district, or the Department of
409Agriculture and Consumer Services on applications to use board
410of trustees-owned submerged lands shall be subject to the
411provisions of s. 373.4275. Notwithstanding any other provision
412of this subsection, the board of trustees, the Department of
413Legal Affairs, and the department retain the concurrent
414authority to assert or defend title to submerged lands owned by
415the board of trustees.
416     Section 8.  A seaport listed in s. 311.09(1), Florida
417Statutes, may receive or solicit proposals from and enter into a
418public-private infrastructure project agreement with a private
419entity, or a consortium of private entities, to build, operate,
420manage, maintain, or finance a port-related public
421infrastructure project.
422     Section 9.  Except as otherwise expressly provided in this
423act, this act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.