2011 Florida Statutes
Port conceptual permits.
Port conceptual permits.
373.4133 Port conceptual permits.—
(1) The Legislature finds that seaport facilities are critical infrastructure facilities that significantly support the economic development of the state. The Legislature further finds that it is necessary to provide a method of priority permit review that allows seaports in this state to become internationally competitive.
(2) Any port listed in s. 311.09(1) may apply to the department for a port conceptual permit, including any applicable authorization under chapter 253 to use sovereignty submerged lands under a joint coastal permit pursuant to s. 161.055 or an environmental resource permit issued pursuant to this part, for all or a portion of the area within the geographic boundaries of the port. A private entity with a controlling interest in property used for private industrial marine activities in the immediate vicinity of a port listed in s. 311.09(1) may also apply for a port conceptual permit under this section. A port conceptual permit may be issued for a period of up to 20 years and extended one time for an additional 10 years. A port conceptual permit constitutes the state’s conceptual certification of compliance with state water quality standards for purposes of s. 401 of the Clean Water Act and the state’s conceptual determination that the activities contained in the port conceptual permit are consistent with the state coastal zone management program.
(3) A port conceptual permit application must contain sufficient information to provide reasonable assurance that the engineering and environmental concepts upon which the designs are based are likely to meet applicable rule criteria for issuance of construction permits for subsequent phases of the project. At a minimum, a port conceptual permit application must include the identification of proposed construction areas and areas where construction will not occur; the estimated or maximum anticipated impacts to wetlands and other surface waters and any proposed mitigation for those impacts; the estimated or maximum amount of anticipated impervious surface and the nature of the stormwater treatment system for those areas; and the general location and types of activities on sovereignty submerged lands. Except where construction approval is requested as part of a port conceptual permit application, the application is not required to include final design specifications and drawings. The department shall include conditions in the port conceptual permit specifying the additional information that must be submitted as part of any request for a subsequent construction permit or authorization.
(4) In determining whether a port conceptual permit application shall be approved in whole, approved with modifications or conditions, or denied, the department shall effect a reasonable balance between the potential benefits of the facility and the impacts upon water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility.
(5) A port conceptual permit provides the permitholder with assurance, during the duration of the permit, that the engineering and environmental concepts upon which the designs of the port conceptual permit are based are likely to meet applicable rule criteria for the issuance of construction permits for subsequent phases of the project, if:
(a) There are no changes in the rules governing the conditions of issuance of permits for future phases of the project, and the port conceptual permit is not inconsistent with any total maximum daily load or basin management action plan adopted for the waterbody into which the system discharges or is located pursuant to s. 403.067(7) and department rules regarding total maximum daily loads; and
(b) Applications for proposed future phase activities under the port conceptual permit are consistent with the design and conditions of the issued port conceptual permit. Primary areas for consistency comparisons include the size, location, and extent of the system; type of activity; percent of imperviousness; allowable discharge and points of discharge; location and extent of wetland and other surface water impacts and, if required, a proposed mitigation plan; control elevations; extent of stormwater reuse; and detention or retention volumes. If an application for any subsequent phase activity is made that is not consistent with the terms and conditions of the port conceptual permit, the applicant may request a modification of the port conceptual permit to resolve the inconsistency or that the application be processed independent of the port conceptual permit.
(6) Notwithstanding any other provision of law, a port conceptual permit or associated construction permit, including any applicable sovereignty submerged lands authorization, may authorize advance mitigation for impacts expected as a result of the activities described in the port conceptual permit. Such advance mitigation shall be credited to offset the impacts of such activities when undertaken, to the extent that the advance mitigation is successful.
(7) Final agency action on a port conceptual sovereignty submerged lands authorization associated with a port conceptual permit may not be delegated by the Board of Trustees of the Internal Improvement Trust Fund. However, approval of such an authorization by the board shall constitute a delegation of authority to the department to take final agency action on behalf of the board on any sovereignty submerged lands authorization necessary to construct facilities included in the port conceptual sovereignty submerged lands authorization, unless a member of the board specifically requests that final agency action be brought before the board. Any delegation of authority to the department concerning a private project does not exempt the private project from applicable rules of the board, including lease and easement fees.
(8) Except as otherwise provided in this section, the following procedures apply to the approval or denial of an application for a port conceptual permit or a final permit or authorization:
(a) Applications for a port conceptual permit, including any request for the conceptual approval of the use of sovereignty submerged lands, shall be processed in accordance with the provisions of ss. 373.427 and 120.60, with the following exceptions:
1. An application for a port conceptual permit, and any applications for subsequent construction contained in a port conceptual permit, must be approved or denied within 60 days after receipt of a completed application.
2. The department may request additional information no more than twice, unless the applicant waives this limitation in writing. If the applicant does not provide a response to the second request for additional information within 90 days or another time period mutually agreed upon between the applicant and department, the application shall be considered withdrawn.
3. If the applicant believes that any request for additional information is not authorized by law or agency rule, the applicant may request an informal hearing pursuant to s. 120.57(2) before the Secretary of Environmental Protection to determine whether the application is complete.
4. If a third party petitions to challenge the issuance of a port conceptual permit by the department, the petitioner initiating the action has the burden of ultimate persuasion and, in the first instance, has the burden of going forward with the evidence.
(b) Upon issuance of the department’s notice of intent to issue or deny a port conceptual permit, the applicant shall publish a one-time notice of such intent, prepared by the department, in the newspaper with the largest general circulation in the county or counties where the port is located.
(c) Final agency action on a port conceptual permit is subject to challenge pursuant to ss. 120.569 and 120.57. However, final agency action to authorize subsequent construction of facilities contained in a port conceptual permit may only be challenged by a third party for consistency with the port conceptual permit.
(d) A person who will be substantially affected by a final agency action described in paragraph (c) must initiate administrative proceedings pursuant to ss. 120.569 and 120.57 within 21 days after the publication of the notice of the proposed action. If administrative proceedings are requested, the proceedings are subject to the summary hearing provisions of s. 120.574. However, if the decision of the administrative law judge will be a recommended order rather than a final order, a summary proceeding must be conducted within 90 days after a party files a motion for summary hearing, regardless of whether the parties agree to the summary proceeding.
(9) Notwithstanding any other provision of law, the department and the board are authorized to issue permits and authorizations pursuant to this section in advance of the issuance of any take authorization as provided for in the Endangered Species Act and its implementing regulations if the permits and authorizations include a condition requiring that authorized activities shall not commence until such take authorization is issued and shall be consistent with such authorization. The department shall unilaterally modify any permit or authorization issued pursuant to this section to make the permit or authorization consistent with any subsequently issued incidental take authorization. Such a unilateral modification does not create a point of entry for any substantially affected person to request administrative proceedings under ss. 120.569 and 120.57.
(10) In lieu of meeting the generally applicable stormwater design standards in rules adopted under this part, which create a presumption that stormwater discharged from the system will meet the applicable state water quality standards in the receiving waters, any port listed in s. 311.09(1) may propose alternative stormwater treatment and design criteria for the construction, operation, and maintenance of stormwater management systems serving overwater piers. The proposal shall include such structural components or best management practices to address the stormwater discharge from the pier, including consideration of activities conducted on the pier, as are necessary to provide reasonable assurance that stormwater discharged from the system will meet the applicable state water quality standards in the receiving waters.
(11) The department and the board may adopt rules to implement the provisions of this section under the joint coastal permit provisions of chapter 161, the sovereignty submerged lands provisions of chapter 253, and the environmental resource permit provisions of this part. The adoption of such rules is not subject to any special rulemaking requirements related to small business.
(12) This section shall take effect upon this act becoming a law, and its implementation may not be delayed by any rulemaking under this section.
History.—s. 1, ch. 2010-201; s. 7, ch. 2011-164.