Florida Senate - 2011 CS for CS for CS for SB 768
By the Committees on Budget; Transportation; and Commerce and
Tourism; and Senator Ring
576-04643-11 2011768c3
1 A bill to be entitled
2 An act relating to seaports; amending s. 373.406,
3 F.S.; exempting overwater piers, docks, and structures
4 located in deepwater ports from stormwater management
5 system requirements under specified conditions;
6 amending s. 373.4133, F.S.; providing exceptions to
7 time limitations for the Department of Environmental
8 Protection to issue a notice of intent to issue a port
9 conceptual permit; providing that a third party who
10 challenges the issuance of a port conceptual permit
11 has the ultimate burden of proof and the burden of
12 going forward with the evidence in the first instance;
13 deleting the requirement to publish notice of the
14 department’s intent to issue or deny a port conceptual
15 permit; amending s. 403.813, F.S.; exempting specified
16 seaports and inland navigation districts from
17 requirements to conduct maintenance dredging under
18 certain circumstances; providing that ditches, pipes,
19 and similar linear conveyances are not receiving
20 waters; authorizing public ports and inland navigation
21 districts to use sovereignty submerged lands in
22 connection with maintenance dredging; providing an
23 additional exemption from permitting requirements to
24 allow the disposal of spoil material on a self
25 contained, upland spoil site if certain conditions are
26 met; requiring notice to the department of intent to
27 use the exemption; providing conditions; amending s.
28 310.002, F.S.; redefining the term “port” to include
29 Port Citrus; amending s. 311.09, F.S.; including a
30 representative of Port Citrus as a member of the
31 Florida Seaport Transportation and Economic
32 Development Council; amending s. 374.976, F.S.;
33 conforming provisions to include Port Citrus in
34 provisions relating to the authority of inland
35 navigation districts; amending s. 403.021, F.S.;
36 conforming provisions to include Port Citrus in
37 legislative declarations relating to environmental
38 control; amending s. 403.061, F.S.; conforming
39 provisions to include Port Citrus in provisions
40 relating to powers of the Department of Environmental
41 Protection; amending s. 403.813, F.S.; conforming
42 provisions to include Port Citrus in provisions
43 relating to permits issued at Department of
44 Environmental Protection district centers; amending s.
45 403.816, F.S.; conforming provisions to include Port
46 Citrus in provisions relating to certain maintenance
47 projects at deepwater ports and beach restoration
48 projects; providing an effective date.
49
50 Be It Enacted by the Legislature of the State of Florida:
51
52 Section 1. Subsection (12) is added to section 373.406,
53 Florida Statutes, to read:
54 373.406 Exemptions.—The following exemptions shall apply:
55 (12) An overwater pier, dock, or a similar structure
56 located in a deepwater port listed in s. 311.09 is not
57 considered to be part of a stormwater management system for
58 which this chapter or chapter 403 requires stormwater from
59 impervious surfaces to be treated if:
60 (a) The port has a stormwater pollution prevention plan for
61 industrial activities pursuant to the National Pollutant
62 Discharge Elimination System Program; and
63 (b) The stormwater pollution prevention plan also provides
64 similar pollution prevention measures for other activities that
65 are not subject to the National Pollutant Discharge Elimination
66 System Program and that occur on the port’s overwater piers,
67 docks, and similar structures.
68 Section 2. Subsection (8) of section 373.4133, Florida
69 Statutes, is amended to read:
70 373.4133 Port conceptual permits.—
71 (8) Except as otherwise provided in this section, the
72 following procedures apply to the approval or denial of an
73 application for a port conceptual permit or a final permit or
74 authorization:
75 (a) Applications for a port conceptual permit, including
76 any request for the conceptual approval of the use of
77 sovereignty submerged lands, shall be processed in accordance
78 with the provisions of ss. 373.427 and 120.60, with the
79 following exceptions:.
80 1. An application for a port conceptual permit, and any
81 applications for subsequent construction contained in a port
82 conceptual permit, must be approved or denied within 60 days
83 after receipt of a completed application.
84 2. The department may request additional information no
85 more than twice, unless the applicant waives this limitation in
86 writing. If the applicant does not provide a response to the
87 second request for additional information within 90 days or
88 another time period mutually agreed upon between the applicant
89 and the department, the application shall be considered
90 withdrawn. However,
91 3. If the applicant believes that any request for
92 additional information is not authorized by law or agency rule,
93 the applicant may request an informal hearing pursuant to s.
94 120.57(2) before the Secretary of Environmental Protection to
95 determine whether the application is complete.
96 4. If a third party petitions to challenge the issuance of
97 a port conceptual permit by the department, the petitioner
98 initiating the action has the burden of ultimate persuasion and,
99 in the first instance, has the burden of going forward with the
100 evidence.
101 (b) Upon issuance of the department’s notice of intent to
102 issue or deny a port conceptual permit, the applicant shall
103 publish a one-time notice of such intent, prepared by the
104 department, in the newspaper with the largest general
105 circulation in the county or counties where the port is located.
106 (b)(c) Final agency action on a port conceptual permit is
107 subject to challenge pursuant to ss. 120.569 and 120.57.
108 However, final agency action to authorize subsequent
109 construction of facilities contained in a port conceptual permit
110 may only be challenged by a third party only for consistency
111 with the port conceptual permit.
112 (c)(d) A person who will be substantially affected by a
113 final agency action described in paragraph (b) (c) must initiate
114 administrative proceedings pursuant to ss. 120.569 and 120.57
115 within 21 days after the publication of the notice of the
116 proposed action. If administrative proceedings are requested,
117 the proceedings are subject to the summary hearing provisions of
118 s. 120.574. However, if the decision of the administrative law
119 judge will be a recommended order rather than a final order, a
120 summary proceeding must be conducted within 90 days after a
121 party files a motion for summary hearing, regardless of whether
122 the parties agree to the summary proceeding.
123 Section 3. Subsection (3) of section 403.813, Florida
124 Statutes, is amended to read:
125 403.813 Permits issued at district centers; exceptions.—
126 (3) A permit is not required under this chapter, chapter
127 373, chapter 61-691, Laws of Florida, or chapter 25214 or
128 chapter 25270, 1949, Laws of Florida, for maintenance dredging
129 conducted under this section by the seaports of Jacksonville,
130 Port Canaveral, Fort Pierce, Palm Beach, Port Everglades, Miami,
131 Port Manatee, St. Petersburg, Tampa, Port St. Joe, Panama City,
132 Pensacola, Key West, and Fernandina or by inland navigation
133 districts, if the dredging to be performed is no more than is
134 necessary to restore previously dredged areas to original design
135 specifications or configurations, if previously undisturbed
136 natural areas are not significantly impacted, and if the work
137 conducted does not violate the protections for manatees under s.
138 379.2431(2)(d). In addition:
139 (a) A mixing zone for turbidity is granted within a 150
140 meter radius from the point of dredging while dredging is
141 ongoing, except that the mixing zone may not extend into areas
142 supporting wetland communities, submerged aquatic vegetation, or
143 hardbottom communities.
144 (b) The discharge of the return water from the site used
145 for the disposal of dredged material shall be allowed only if
146 such discharge does not result in a violation of water quality
147 standards in the receiving waters. The return-water discharge
148 into receiving waters shall be granted a mixing zone for
149 turbidity within a 150-meter radius from the point of discharge
150 into the receiving waters during and immediately after the
151 dredging, except that the mixing zone may not extend into areas
152 supporting wetland communities, submerged aquatic vegetation, or
153 hardbottom communities. Ditches, pipes, and similar types of
154 linear conveyances are not considered receiving waters for the
155 purposes of this paragraph.
156 (c) The state may not exact a charge for material that this
157 subsection allows a public port or an inland navigation district
158 to remove. In addition, consent to use any sovereignty submerged
159 lands pursuant to this section is hereby granted.
160 (d) The use of flocculants at the site used for disposal of
161 the dredged material is allowed if the use, including supporting
162 documentation, is coordinated in advance with the department and
163 the department has determined that the use is not harmful to
164 water resources.
165 (e) The spoil material from maintenance dredging may be
166 deposited in a self-contained, upland disposal site. The site is
167 not required to be permitted if:
168 1. The site exists as of January 1, 2011;
169 2. A professional engineer certifies that the site has been
170 designed in accordance with generally accepted engineering
171 standards for such disposal sites;
172 3. The site has adequate capacity to receive and retain the
173 dredged material; and
174 4. The site has operating and maintenance procedures that
175 provide for discharge of return flow of water and prevent the
176 escape of the spoil material into state waters.
177 (f) The department must be notified of the intent to use
178 this exemption at least 30 days before the commencement of
179 maintenance dredging. The notice shall include, if applicable,
180 the professional engineer certification required by paragraph
181 (e).
182 (g)(e) This subsection does not prohibit maintenance
183 dredging of areas where the loss of original design function and
184 constructed configuration has been caused by a storm event,
185 provided that the dredging is performed as soon as practical
186 after the storm event. Maintenance dredging that commences
187 within 3 years after the storm event shall be presumed to
188 satisfy this provision. If more than 3 years are needed to
189 commence the maintenance dredging after the storm event, a
190 request for a specific time extension to perform the maintenance
191 dredging shall be submitted to the department, prior to the end
192 of the 3-year period, accompanied by a statement, including
193 supporting documentation, demonstrating that contractors are not
194 available or that additional time is needed to obtain
195 authorization for the maintenance dredging from the United
196 States Army Corps of Engineers.
197 Section 4. Subsection (4) of section 310.002, Florida
198 Statutes, is amended to read:
199 310.002 Definitions.—As used in this chapter, except where
200 the context clearly indicates otherwise:
201 (4) “Port” means any place in the state into which vessels
202 enter or depart and includes, without limitation, Fernandina,
203 Nassau Inlet, Jacksonville, St. Augustine, Canaveral, Port
204 Citrus, Ft. Pierce, Palm Beach, Port Everglades, Miami, Key
205 West, Boca Grande, Charlotte Harbor, Punta Gorda, Tampa, Port
206 Tampa, Port Manatee, St. Petersburg, Clearwater, Apalachicola,
207 Carrabelle, Panama City, Port St. Joe, and Pensacola.
208 Section 5. Subsection (1) of section 311.09, Florida
209 Statutes, is amended to read:
210 311.09 Florida Seaport Transportation and Economic
211 Development Council.—
212 (1) The Florida Seaport Transportation and Economic
213 Development Council is created within the Department of
214 Transportation. The council consists of the following 18 17
215 members: the port director, or the port director’s designee, of
216 each of the ports of Jacksonville, Port Canaveral, Port Citrus,
217 Fort Pierce, Palm Beach, Port Everglades, Miami, Port Manatee,
218 St. Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
219 West, and Fernandina; the secretary of the Department of
220 Transportation or his or her designee; the director of the
221 Office of Tourism, Trade, and Economic Development or his or her
222 designee; and the secretary of the Department of Community
223 Affairs or his or her designee.
224 Section 6. Paragraph (c) of subsection (1) of section
225 374.976, Florida Statutes, is amended to read:
226 374.976 Authority to address impacts of waterway
227 development projects.—
228 (1) Each inland navigation district is empowered and
229 authorized to undertake programs intended to alleviate the
230 problems associated with its waterway or waterways, including,
231 but not limited to, the following:
232 (c) The district is authorized to aid and cooperate with
233 the Federal Government; state; member counties; nonmember
234 counties that contain any part of the intracoastal waterway
235 within their boundaries; navigation districts; the seaports of
236 Jacksonville, Port Canaveral, Port Citrus, Fort Pierce, Palm
237 Beach, Port Everglades, Miami, Port Manatee, St. Petersburg,
238 Tampa, Port St. Joe, Panama City, Pensacola, Key West, and
239 Fernandina; and local governments within the district in
240 planning and carrying out public navigation, local and regional
241 anchorage management, beach renourishment, public recreation,
242 inlet management, environmental education, and boating safety
243 projects, directly related to the waterways. The district is
244 also authorized to enter into cooperative agreements with the
245 United States Army Corps of Engineers, state, and member
246 counties, and to covenant in any such cooperative agreement to
247 pay part of the costs of acquisition, planning, development,
248 construction, reconstruction, extension, improvement, operation,
249 and maintenance of such projects.
250 Section 7. Subsection (9) of section 403.021, Florida
251 Statutes, is amended to read:
252 403.021 Legislative declaration; public policy.—
253 (9)(a) The Legislature finds and declares that it is
254 essential to preserve and maintain authorized water depth in the
255 existing navigation channels, port harbors, turning basins, and
256 harbor berths of this state in order to provide for the
257 continued safe navigation of deepwater shipping commerce. The
258 department shall recognize that maintenance of authorized water
259 depths consistent with port master plans developed pursuant to
260 s. 163.3178(2)(k) is an ongoing, continuous, beneficial, and
261 necessary activity that is in the public interest; and it shall
262 develop a regulatory process that shall enable the ports of this
263 state to conduct such activities in an environmentally sound,
264 safe, expeditious, and cost-efficient manner. It is the further
265 intent of the Legislature that the permitting and enforcement of
266 dredging, dredged-material management, and other related
267 activities for Florida’s deepwater ports pursuant to this
268 chapter and chapters 161, 253, and 373 shall be consolidated
269 within the department’s Division of Water Resource Management
270 and, with the concurrence of the affected deepwater port or
271 ports, may be administered by a district office of the
272 department or delegated to an approved local environmental
273 program.
274 (b) The provisions of paragraph (a) apply only to the port
275 waters, dredged-material management sites, port harbors,
276 navigation channels, turning basins, and harbor berths used for
277 deepwater commercial navigation in the ports of Jacksonville,
278 Tampa, Port Everglades, Miami, Port Canaveral, Port Citrus, Ft.
279 Pierce, Palm Beach, Port Manatee, Port St. Joe, Panama City, St.
280 Petersburg, Pensacola, Fernandina, and Key West.
281 Section 8. Subsection (26) of section 403.061, Florida
282 Statutes, is amended to read:
283 403.061 Department; powers and duties.—The department shall
284 have the power and the duty to control and prohibit pollution of
285 air and water in accordance with the law and rules adopted and
286 promulgated by it and, for this purpose, to:
287 (26)(a) Develop standards and criteria for waters used for
288 deepwater shipping which standards and criteria consider
289 existing water quality; appropriate mixing zones and other
290 requirements for maintenance dredging in previously constructed
291 deepwater navigation channels, port harbors, turning basins, or
292 harbor berths; and appropriate mixing zones for disposal of
293 spoil material from dredging and, where necessary, develop a
294 separate classification for such waters. Such classification,
295 standards, and criteria shall recognize that the present
296 dedicated use of these waters is for deepwater commercial
297 navigation.
298 (b) The provisions of paragraph (a) apply only to the port
299 waters, spoil disposal sites, port harbors, navigation channels,
300 turning basins, and harbor berths used for deepwater commercial
301 navigation in the ports of Jacksonville, Tampa, Port Everglades,
302 Miami, Port Canaveral, Port Citrus, Ft. Pierce, Palm Beach, Port
303 Manatee, Port St. Joe, Panama City, St. Petersburg, Port Bartow,
304 Florida Power Corporation’s Crystal River Canal, Boca Grande,
305 Green Cove Springs, and Pensacola.
306
307 The department shall implement such programs in conjunction with
308 its other powers and duties and shall place special emphasis on
309 reducing and eliminating contamination that presents a threat to
310 humans, animals or plants, or to the environment.
311 Section 9. Subsection (3) of section 403.813, Florida
312 Statutes, is amended to read:
313 403.813 Permits issued at district centers; exceptions.—
314 (3) For maintenance dredging conducted under this section
315 by the seaports of Jacksonville, Port Canaveral, Port Citrus,
316 Fort Pierce, Palm Beach, Port Everglades, Miami, Port Manatee,
317 St. Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
318 West, and Fernandina or by inland navigation districts:
319 (a) A mixing zone for turbidity is granted within a 150
320 meter radius from the point of dredging while dredging is
321 ongoing, except that the mixing zone may not extend into areas
322 supporting wetland communities, submerged aquatic vegetation, or
323 hardbottom communities.
324 (b) The discharge of the return water from the site used
325 for the disposal of dredged material shall be allowed only if
326 such discharge does not result in a violation of water quality
327 standards in the receiving waters. The return-water discharge
328 into receiving waters shall be granted a mixing zone for
329 turbidity within a 150-meter radius from the point of discharge
330 during and immediately after the dredging, except that the
331 mixing zone may not extend into areas supporting wetland
332 communities, submerged aquatic vegetation, or hardbottom
333 communities.
334 (c) The state may not exact a charge for material that this
335 subsection allows a public port or an inland navigation district
336 to remove.
337 (d) The use of flocculants at the site used for disposal of
338 the dredged material is allowed if the use, including supporting
339 documentation, is coordinated in advance with the department and
340 the department has determined that the use is not harmful to
341 water resources.
342 (e) This subsection does not prohibit maintenance dredging
343 of areas where the loss of original design function and
344 constructed configuration has been caused by a storm event,
345 provided that the dredging is performed as soon as practical
346 after the storm event. Maintenance dredging that commences
347 within 3 years after the storm event shall be presumed to
348 satisfy this provision. If more than 3 years are needed to
349 commence the maintenance dredging after the storm event, a
350 request for a specific time extension to perform the maintenance
351 dredging shall be submitted to the department, prior to the end
352 of the 3-year period, accompanied by a statement, including
353 supporting documentation, demonstrating that contractors are not
354 available or that additional time is needed to obtain
355 authorization for the maintenance dredging from the United
356 States Army Corps of Engineers.
357 Section 10. Section 403.816, Florida Statutes, is amended
358 to read:
359 403.816 Permits for maintenance dredging of deepwater ports
360 and beach restoration projects.—
361 (1) The department shall establish a permit system under
362 this chapter and chapter 253 which provides for the performance,
363 for up to 25 years from the issuance of the original permit, of
364 maintenance dredging of permitted navigation channels, port
365 harbors, turning basins, harbor berths, and beach restoration
366 projects approved pursuant to chapter 161. However, permits
367 issued for dredging river channels which are not a part of a
368 deepwater port shall be valid for no more than five years. No
369 charge shall be exacted by the state for material removed during
370 such maintenance dredging by a public port authority.
371 (2) The provisions of s. 253.77 do not apply to a permit
372 for maintenance dredging and spoil site approval when there is
373 no change in the size or location of the spoil disposal site and
374 when the applicant provides documentation to the department that
375 the appropriate lease, easement, or consent of use for the
376 project site issued pursuant to chapter 253 is recorded in the
377 county where the project is located.
378 (3) The provisions of this section relating to ports apply
379 only to the port waters, spoil disposal sites, port harbors,
380 navigation channels, turning basins, and harbor berths used for
381 deepwater commercial navigation in the ports of Jacksonville,
382 Tampa, Port Everglades, Miami, Port Canaveral, Port Citrus, Ft.
383 Pierce, Palm Beach, Port Manatee, Port St. Joe, Panama City, St.
384 Petersburg, Port Bartow, Florida Power Corporation’s Crystal
385 River Canal, Boca Grande, Green Cove Springs, and Pensacola.
386 Section 11. This act shall take effect July 1, 2011.