Senate Bill sb1678

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    Florida Senate - 2002                                  SB 1678

    By Senator Campbell





    33-1393-02                                              See HB

  1                      A bill to be entitled

  2         An act relating to facilities affecting

  3         Florida's water supply; creating s. 403.5205,

  4         F.S.; providing legislative findings; providing

  5         additional conditions for the location of

  6         simple cycle turbine electric power plants;

  7         providing eligibility for cooperative funding

  8         assistance for plants designed to promote

  9         alternative water supplies; creating ss.

10         403.54, 403.541, 403.542, 403.543, 403.544,

11         403.545, 403.5451, 403.5452, 403.5453, 403.546,

12         403.547, 403.5472, 403.5475, 403.548, 403.549,

13         403.551, 403.5515, 403.552, 403.553, 403.556,

14         403.5565, 403.559, F.S.; creating the

15         "Desalination Facility Siting Act"; providing

16         legislative intent; providing definitions;

17         providing powers and duties of the Department

18         of Environmental Protection; providing

19         applicability; providing for certification of

20         desalination facilities under the act;

21         providing for appointment of an administrative

22         law judge; providing for scheduling of the

23         certification process; providing for

24         distribution of copies of the certification

25         application and amendments thereto; providing

26         for a determination of completeness; providing

27         for contesting such determination; providing

28         for a determination of sufficiency; providing

29         for contesting such determination; providing

30         for preliminary statements of issues and for

31         reports and studies; providing requirements for

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         notice of the application and proceedings with

  2         respect thereto; providing for department

  3         rules; providing for conduct of the

  4         certification hearing; providing for issuance

  5         of a recommended order; providing for parties

  6         and participants in the proceeding; requiring

  7         payment of hearing expenses and costs by the

  8         applicant; authorizing local governments to

  9         hold informational public meetings; providing

10         procedure for amendment of the certification

11         application; providing conditions for

12         alteration of time limitations; providing for

13         final disposition of the application by the

14         Governor and Cabinet sitting as the

15         Desalination Facility Siting Board; specifying

16         the effect of certification; providing

17         procedures for modification of a certification

18         after issuance; specifying conditions for

19         suspension or revocation of a certification;

20         providing for enforcement of compliance by

21         application of existing penalties; providing

22         that conflicting laws, regulations, and

23         certification powers are superseded;

24         authorizing the siting board to adopt rules;

25         providing for fees and specifying the use

26         thereof; providing admissibility of

27         certification in eminent domain proceedings;

28         amending ss. 367.111, 381.0062, 381.0067, F.S.;

29         conforming cross-references; providing an

30         effective date.

31

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Section 403.5205, Florida Statutes, is

  4  created to read:

  5         403.5205  Permitting requirements for simple cycle

  6  turbine electric power plants.--

  7         (1)  The Legislature finds that the recent rapid

  8  expansion of proposed electric power plants that use simple

  9  cycle turbine processes are not subject to the regulatory

10  review requirements of the Florida Electrical Power Plant

11  Siting Act. The continued proliferation of these types of

12  plants will result in growth management problems for the

13  counties in which they are located and affect the patterns of

14  urban development and demands on water resources.

15         (2)(a)  Simple cycle turbine electric power plants are

16  encouraged to locate in coastal counties where they can be

17  combined with reverse osmosis facilities or other similar

18  technologies to desalinate water resources to help meet

19  potable water supply needs.

20         (b)  Simple cycle turbine electric power plants that

21  are proposed to be combined with reverse osmosis facilities or

22  other similar desalination technologies are eligible to

23  receive cooperative funding assistance from water management

24  districts created under chapter 373 for those that have

25  cooperative funding assistance programs for activities

26  designed to promote alternative water supplies.

27         (3)  Notwithstanding other requirements for permitting

28  required by law, the construction permit application for a

29  simple cycle turbine electric power plant located in a Water

30  Caution Area must demonstrate that the sole source of cooling

31  water will be provided by a nonpotable water source.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         Section 2.  Parts III through IX of chapter 403,

  2  Florida Statutes, are redesignated as parts IV through X,

  3  respectively, and a new part III, consisting of sections

  4  403.54, 403.541, 403.542, 403.543, 403.544, 403.545, 403.5451,

  5  403.5452, 403.5453, 403.546, 403.547, 403.5472, 403.5475,

  6  403.548, 403.549, 403.551, 403.5515, 403.552, 403.553,

  7  403.556, 403.5565, and 403.559, Florida Statutes, is created

  8  to read:

  9                             PART III

10                   DESALINATION FACILITY SITING

11         403.54  Short title.--This part may be cited as the

12  "Desalination Facility Siting Act."

13         403.541  Legislative intent.--The Legislature intends

14  for this part to establish a centralized, streamlined, and

15  coordinated permitting process for the siting and construction

16  of desalination facilities. The Legislature recognizes the

17  important need to develop cost-effective, drought-resistant

18  alternative water supplies. The Legislature finds that

19  desalination facilities can help meet this need and assist in

20  promoting the protection and proper development of Florida's

21  water resources. It is the intent of this part to expedite the

22  licensing of desalination facilities while meeting the

23  applicable standards of the involved agencies.  The

24  Legislature intends that the provisions of chapter 120 apply

25  to this part and to proceedings pursuant to it, except as

26  otherwise expressly exempted by other provisions of this part.

27         403.542  Definitions.--As used in this part, the term:

28         (1)  "Agency," as the context requires, means an

29  official, officer, commission, authority, council, committee,

30  department, division, bureau, board, section, or other unit or

31  entity of government, including a county, municipality, water

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  management district, or other regional or local governmental

  2  entity.

  3         (2)  "Amendment" means a material change in information

  4  provided by the applicant to the application for certification

  5  made after the initial application filing.

  6         (3)  "Applicant" means any entity that applies for

  7  certification pursuant to the provisions of this part.

  8         (4)  "Application" means the documents required by the

  9  department to be filed to initiate a certification proceeding.

10         (5)  "Board" or "siting board" means the Governor and

11  Cabinet sitting as the Desalination Facility Siting Board.

12         (6)  "Certification" means the approval by the siting

13  board of the location, construction, maintenance, and

14  operation of a desalination facility. Certification shall be

15  evidenced by a written order of the siting board, which shall

16  be entered within 10 days after siting board approval.

17         (7)  "Completeness" means that the application has

18  addressed all applicable sections of the prescribed

19  application format but does not mean that those sections are

20  sufficient in comprehensiveness of data or in the quality of

21  information provided.

22         (8)  "Department" means the Department of Environmental

23  Protection.

24         (9)  "Desalination facility" means a facility that

25  withdraws water from ground or surface water for the primary

26  purpose of removing chlorides to render the water suitable for

27  potable use or other productive purposes.  The removal of

28  other constituents from the source water does not prevent a

29  facility from qualifying as a desalination facility under this

30  part, so long as the facility's primary purpose is to remove

31  chlorides.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         (10)  "License" means a franchise, permit,

  2  certification, registration, charter, comprehensive plan

  3  amendment, development order, or permit as defined in chapters

  4  163 and 380, or similar form of authorization required by law,

  5  but does not include a license required primarily for revenue

  6  purposes when issuance of the license is merely a ministerial

  7  act.

  8         (11)  "Local government" means a municipality or county

  9  in the jurisdiction of which the desalination facility project

10  is proposed to be located.

11         (12)  "Modification" means any change in the

12  certification order after issuance, including a change in the

13  conditions of certification.

14         (13)  "Nonprocedural requirements of agencies" means

15  any agency's regulatory requirements established by statute,

16  rule, ordinance, or comprehensive plan, excluding any

17  provisions prescribing forms, fees, procedures, or time limits

18  for the review or processing of information submitted to

19  demonstrate compliance with such regulatory requirements.

20         (14)  "Person" means an individual, partnership, joint

21  venture, private or public corporation, association, firm,

22  public service company, political subdivision, municipal

23  corporation, government agency, public utility district, or

24  any other entity, public or private, however organized.

25         (15)  "Preliminary statement of issues" means a listing

26  and explanation of those issues within the agency's

27  jurisdiction that are of major concern to the agency in

28  relation to the proposed desalination facility.

29         (16)  "Sufficiency" means that the application is not

30  only complete but that all sections are adequate in the

31  comprehensiveness of data and in the quality of information

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  provided to allow the department to determine whether the

  2  application provides the reviewing agencies adequate

  3  information to prepare the reports required by s. 403.546.

  4         (17)  "Water management district" means a water

  5  management district created pursuant to chapter 373 in the

  6  jurisdiction of which the desalination facility is proposed to

  7  be located.

  8         403.543  Department of Environmental Protection; powers

  9  and duties.--The department shall have the following powers

10  and duties:

11         (1)  To adopt procedural rules pursuant to ss.

12  120.536(1) and 120.54 to implement the provisions of this

13  part.

14         (2)  To prescribe the form and content of the public

15  notices and the form, content, and necessary supporting

16  documentation, and any required studies, for certification

17  applications. All such data and studies shall be related to

18  the jurisdiction of the agencies relevant to the application.

19         (3)  To receive applications for desalination facility

20  certification and initially determine the completeness and

21  sufficiency thereof.

22         (4)  To make or contract for studies of certification

23  applications. All such studies shall be related to the

24  permitting or licensing jurisdiction of the agencies relevant

25  to the application. For studies in areas outside the

26  jurisdiction of the department and in the jurisdiction of

27  another agency, the department may initiate such studies, but

28  only with the consent of such agency.

29         (5)  To administer the processing of applications for

30  certification and ensure that the applications are processed

31  as expeditiously as possible.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         (6)  To require such fees as allowed by this part.

  2         (7)  To prepare a report and written analysis as

  3  required by s. 403.546.

  4         (8)  To prescribe the means for monitoring the effects

  5  arising from the construction and operation of desalination

  6  facilities to ensure continued compliance with the terms of

  7  the certification.

  8         403.544  Applicability and certification.--

  9         (1)  The provisions of this part shall be voluntary.

10  An entity seeking to construct and operate a desalination

11  facility may choose to proceed under this part or may obtain

12  all permits and licenses needed for such facility as otherwise

13  provided by law. However, the provisions of this part shall

14  not apply to a desalination facility constructed and operated

15  as an associated facility of an electrical power plant

16  certified pursuant to the Florida Electrical Power Plant

17  Siting Act.  As used in this subsection, "associated facility

18  of an electrical power plant" means a desalination facility

19  constructed and operated solely to provide water for power

20  plant purposes. Desalination facilities may be constructed and

21  operated as part of an electrical power plant certification or

22  recertification without undergoing an additional or separate

23  permitting process.

24         (2)  If an entity chooses to obtain certification under

25  this part, the desalination facility that is the subject of

26  the certification application may not be constructed or

27  operated without first obtaining such certification.  The

28  provisions of this part shall not apply to desalination

29  facilities for which an application has been filed with the

30  department which application is deemed complete prior to the

31  effective date of this act.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         403.545  Appointment of administrative law

  2  judge.--Within 5 working days after receipt of an application

  3  for certification under this part, whether complete or not,

  4  the department shall request the Division of Administrative

  5  Hearings to designate an administrative law judge to conduct

  6  the hearings required by this part. The division director

  7  shall, within 5 working days after receipt of the request from

  8  the department, designate an administrative law judge to

  9  conduct the hearings required by this part. Whenever

10  practicable, the division director shall assign an

11  administrative law judge who has had prior experience or

12  training in this type or other types of certification

13  proceedings. Upon being advised that an administrative law

14  judge has been designated, the department shall immediately

15  file a copy of the application and all supporting documents

16  with the administrative law judge, who shall docket the

17  application.

18         403.5451  Distribution of application; schedules.--

19         (1)  Within 5 working days after the filing of an

20  application for certification under this part, the department

21  shall provide the applicant and the Division of Administrative

22  Hearings with the names and addresses of those affected and

23  other agencies entitled to notice and copies of the

24  application and any amendments.

25         (2)  Within 5 working days after completeness has been

26  determined, the department shall prepare a schedule of dates

27  for submission of statements of issues, determination of

28  sufficiency, submittal of final reports from affected and

29  other agencies, and other significant dates to be followed

30  during the certification process, including dates for filing

31  notices of appearances to be a party pursuant to s.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  403.547(4). This schedule shall be provided by the department

  2  to the applicant, the administrative law judge, and the

  3  agencies identified pursuant to subsection (1).  The schedule

  4  shall not exceed 90 days unless an extension beyond this

  5  period is agreed to by the parties.

  6         (3)  Within 5 working days after completeness has been

  7  determined, the applicant shall distribute copies of the

  8  application to all agencies identified by the department

  9  pursuant to subsection (1). Copies of changes and amendments

10  to the application shall be timely distributed by the

11  applicant to all agencies and parties who have received a copy

12  of the application.

13         403.5452  Determination of completeness.--Within 10

14  days after receipt of an application, the department shall

15  file a statement with the Division of Administrative Hearings

16  and with the applicant declaring its position with regard to

17  the completeness, not the sufficiency, of the application.

18         (1)  If the department declares the application to be

19  incomplete, the applicant, within 15 days after the filing of

20  the statement by the department, shall file with the Division

21  of Administrative Hearings and with the department a

22  statement:

23         (a)  Agreeing with the statement of the department and

24  withdrawing the application;

25         (b)  Agreeing with the statement of the department and

26  agreeing to amend the application without withdrawing it. The

27  time schedules referencing a complete application under this

28  part shall not commence until the application is determined

29  complete; or

30         (c)  Contesting the statement of the department.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         (2)  If the applicant contests the department's

  2  determination that an application is incomplete, the

  3  administrative law judge shall schedule a hearing on the

  4  statement of completeness. The hearing shall be held as

  5  expeditiously as possible but not later than 30 days after the

  6  filing of the statement by the department. The administrative

  7  law judge shall render a decision within 10 days after the

  8  hearing.

  9         (a)  If the administrative law judge determines that

10  the application was not complete as filed, the applicant shall

11  withdraw the application or make such additional submittals as

12  necessary to complete it. The time schedules referencing a

13  complete application under this part shall not commence until

14  the application is determined complete.

15         (b)  If the administrative law judge determines that

16  the application was complete at the time it was filed, the

17  time schedules referencing a complete application under this

18  part shall commence upon such determination.

19         403.5453  Determination of sufficiency.--Within 30 days

20  after the distribution of the complete application or

21  amendment, the department shall file a statement with the

22  Division of Administrative Hearings and with the applicant

23  declaring its position with regard to the sufficiency of the

24  application or amendment. The department's statement shall be

25  based upon consultation with the affected agencies, which

26  shall submit to the department recommendations on the

27  sufficiency of the application or amendment within 20 days

28  after receipt of the complete application or amendment.

29         (1)  If the department declares the application or

30  amendment insufficient, the applicant may withdraw the

31  application or amendment. If the applicant declines to

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  withdraw the application or amendment, the applicant may, at

  2  its option:

  3         (a)  Within 15 days after the department filed its

  4  statement of insufficiency, file additional information

  5  necessary to make the application or amendment sufficient. If

  6  the applicant makes its application or amendment sufficient

  7  within this time period, the time schedules under this part

  8  shall not be tolled by the department's statement of

  9  insufficiency;

10         (b)  Advise the department and the administrative law

11  judge that the information necessary to make the application

12  or amendment sufficient cannot be supplied within 15 days

13  after the notice of the insufficiency, in which case the time

14  schedules under this part shall be tolled from the date of the

15  statement of insufficiency until the application or amendment

16  is determined sufficient; or

17         (c)  Contest the notice of insufficiency by filing a

18  request for hearing with the administrative law judge within

19  15 days after the filing of the statement of insufficiency. If

20  a hearing is requested by the applicant, all time schedules

21  under this part shall be tolled as of the date of the

22  department's statement of insufficiency, pending the

23  administrative law judge's decision concerning the dispute. A

24  hearing shall be held no later than 30 days after the filing

25  of the statement by the department, and a decision shall be

26  rendered within 10 days after the hearing, unless otherwise

27  agreed by the department and the applicant.

28         (2)(a)  If the administrative law judge determines,

29  contrary to the department, that an application or amendment

30  is sufficient, all time schedules under this part shall resume

31

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  as of the date of the administrative law judge's

  2  determination.

  3         (b)  If the administrative law judge agrees that the

  4  application or amendment is insufficient, all time schedules

  5  under this part shall remain tolled until the applicant files

  6  additional information and the application or amendment is

  7  determined sufficient by the department or the administrative

  8  law judge.

  9         (3)  If, within 30 days after receipt of the additional

10  information submitted pursuant to paragraph (1)(a), paragraph

11  (1)(b), or paragraph (2)(b), based upon the recommendations of

12  the affected agencies, the department determines that the

13  additional information supplied by an applicant does not

14  render the application or amendment sufficient, the applicant

15  may exercise any of the options specified in subsection (1) as

16  often as may be necessary to resolve the dispute.

17         403.546  Preliminary statements of issues; reports and

18  studies.--

19         (1)  Each affected agency that received an application

20  in accordance with s. 403.5451(3) shall submit a preliminary

21  statement of issues to the department and the applicant no

22  later than 45 days after distribution of the complete

23  application. Such statement of issues shall be made available

24  to each local government for use as information for public

25  meetings pursuant to s. 403.5472.

26         (2)(a)  The affected agencies shall prepare reports as

27  provided in this subsection and shall submit them to the

28  department and the applicant within 60 days after distribution

29  of the complete application.

30

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         1.  The department shall prepare a report as to the

  2  impact of the proposed desalination facility as it relates to

  3  matters within its jurisdiction.

  4         2.  The water management district in the jurisdiction

  5  of which the proposed desalination facility is to be located

  6  shall prepare a report as to the impact on water resources and

  7  other matters within its jurisdiction.

  8         3.  If the construction of the desalination facility

  9  requires an amendment to the local government's comprehensive

10  plan, the Department of Community Affairs shall prepare a

11  report containing recommendations that address the consistency

12  of the local government's comprehensive plan with the

13  applicable portions of the state comprehensive plan and other

14  matters within its jurisdiction. The Department of Community

15  Affairs may also comment on the consistency of the proposed

16  desalination facility with applicable strategic regional

17  policy plans or local comprehensive plans and land development

18  regulations.

19         4.  The Fish and Wildlife Conservation Commission shall

20  prepare a report as to the impact of the proposed desalination

21  facility on fish and wildlife resources and other matters

22  within its jurisdiction.

23         5.  Each local government that has jurisdiction over

24  the proposed desalination facility shall prepare a report as

25  to the impact of the proposed desalination facility on matters

26  within its jurisdiction, including the consistency of the

27  proposed desalination facility with all applicable local

28  ordinances, regulations, standards, or criteria that apply to

29  the proposed desalination facility, including local

30  comprehensive plans, zoning regulations, land development

31  regulations, and any applicable local environmental

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  regulations adopted pursuant to s. 403.182 or by other means.

  2  No change by the applicable local government or local agency

  3  in local comprehensive plans, zoning ordinances, or other

  4  regulations made after the date of receipt by the local

  5  government of the certification application shall be

  6  applicable to the certification of the proposed desalination

  7  facility unless the certification is denied or the application

  8  is withdrawn.

  9         (b)  Each report shall contain the information on

10  variances required by s. 403.551(2)(b), if any, and proposed

11  conditions of certification on matters within the jurisdiction

12  of each agency. For each condition proposed by an agency, the

13  agency shall list the specific provisions of any statute,

14  rule, ordinance, or other authority, as applicable, that

15  authorize the proposed condition.

16         (c)  Each reviewing agency shall initiate the

17  activities required by this section no later than 10 working

18  days after the complete application is distributed. Each

19  agency shall keep the applicant and the department informed as

20  to the progress of its studies and any issues raised thereby.

21         (3)  The department shall prepare a written analysis

22  which contains a compilation of agency reports and summaries

23  of the material contained therein, and stipulations between

24  one or more agencies and the applicant, which shall be filed

25  with the administrative law judge and served on all parties no

26  later than 75 days after the complete application has been

27  distributed to the affected agencies, and which shall include:

28         (a)  The studies and reports required by this section.

29         (b)  Comments received from any other agency or person.

30         (c)  The recommendation of the department as to the

31  disposition of the application, of variances, exemptions,

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  exceptions, or other relief identified by any party, and of

  2  any proposed conditions of certification that the department

  3  believes should be imposed.

  4         (4)  The failure of any agency to timely submit a

  5  preliminary statement of issues or a report shall not be

  6  grounds for the alteration of any time limitation in this part

  7  pursuant to s. 403.548. Neither the failure to submit a

  8  preliminary statement of issues or a report nor the inadequacy

  9  of the preliminary statement of issues or report shall be

10  grounds to deny or condition certification.

11         403.547  Notice, proceedings, parties, participants.--

12         (1)(a)  No later than 15 days after an application has

13  been determined complete, the applicant shall arrange for

14  publication of a notice of the application and of the

15  proceedings required by this part. Such notice shall give

16  notice of the opportunity for a certification hearing upon

17  request by a party and of the provisions of s. 403.5451(1) and

18  (2).

19         (b)  The applicant shall arrange for publication of a

20  notice of the department's written analysis and

21  recommendation, notice of the opportunity for a certification

22  hearing to be requested by a party, or of the certification

23  hearing if one has already been requested by a party, and

24  notice of the deadline for filing of notice of intent to be a

25  party. Such notices shall be published no later than 5 days

26  after the department's written analysis is filed with the

27  administrative law judge.

28         (c)  The applicant shall arrange for publication of a

29  reminder notice in the newspapers specified in paragraph (d)

30  no more than 10 days prior to the certification hearing, if

31  one is to be conducted, reminding the public of the date and

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  location of the hearing. This notice shall not constitute a

  2  point of entry for intervention in the proceeding.

  3         (d)  Notices to be published by the applicant shall be

  4  published in newspapers of general circulation in the county

  5  in which the desalination facility is proposed to be located.

  6  The required newspaper notices, other than the reminder

  7  notice, shall be one-half page in size in a standard size

  8  newspaper or a full page in a tabloid size newspaper, shall be

  9  published in a section of the newspaper other than the legal

10  notices section, and shall include a map generally depicting

11  the proposed desalination facility location.

12         (e)  The department shall publish in the Florida

13  Administrative Weekly notices of the application, of the

14  certification hearing if one is to be conducted, of the

15  hearing before the board, and of stipulations, proposed agency

16  action, or petitions for modification.

17         (f)  The department shall adopt rules specifying the

18  content of notices required by this section. All notices

19  published by the applicant shall be paid for by the applicant

20  and shall be in addition to the application fee.

21         (2) No later than 12 days after the filing of the

22  department's written analysis, any party may request a

23  certification hearing to challenge the recommendation set

24  forth in the department's written analysis. No later than 105

25  days after receipt of a complete application by the

26  department, if a certification hearing has been timely

27  requested by a party, the administrative law judge shall

28  conduct a certification hearing pursuant to ss. 120.569 and

29  120.57 at a central location in proximity to the proposed

30  desalination facility.

31

                                  17

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         (3)(a)  At the conclusion of the certification hearing,

  2  if one is conducted, the administrative law judge shall, after

  3  consideration of all evidence of record, issue a recommended

  4  order disposing of the application no later than 30 days after

  5  the transcript of the certification hearing is filed with the

  6  Division of Administrative Hearings.

  7         (b)  In the event the administrative law judge fails to

  8  issue a recommended order within 30 days after the filing of

  9  the hearing transcript, the administrative law judge shall

10  submit a report to the board with a copy to all parties to the

11  proceeding within 30 days after the filing of the hearing

12  transcript to advise the board of the reason for the delay in

13  the issuance of the recommended order and of the date by which

14  the recommended order will be issued.

15         (4)(a)  Parties to the proceeding shall be:

16         1. The applicant.

17         2. The department.

18         3. The Department of Community Affairs.

19         4. The Fish and Wildlife Conservation Commission.

20         5. The water management district.

21         6. The local government.

22         (b)  Any party listed in paragraph (a), other than the

23  department or the applicant, may waive its right to

24  participate in the proceeding. If any listed party fails to

25  file a notice of its intent to be a party on or before the

26  12th day following the filing of the department's written

27  analysis, such party shall be deemed to have waived its right

28  to be a party unless its participation would not prejudice the

29  rights of any party to the proceeding.

30         (c)  Notwithstanding the provisions of chapter 120 to

31  the contrary, upon the filing with the administrative law

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  judge of a notice of intent to be a party by an agency,

  2  corporation, or association described in subparagraphs 1. and

  3  2. or a petition for intervention by a person described in

  4  subparagraph 3., no later than 12 days following the filing of

  5  the department's written analysis, the following shall also be

  6  parties to the proceeding: op> 1.  Any agency not listed in

  7  paragraph (a) as to matters within its jurisdiction.

  8         2.  Any domestic nonprofit corporation or association

  9  formed, in whole or in part, to promote conservation of

10  natural beauty; to protect the environment, personal health,

11  or other biological values; to preserve historical sites; to

12  promote consumer interests; to represent labor, commercial, or

13  industrial groups; or to promote comprehensive planning or

14  orderly development of the area in which the proposed

15  desalination facility is to be located.

16         3.  Any person whose substantial interests are affected

17  and being determined by the proceeding.

18         4.  Any person who owns real property contiguous to the

19  site of the proposed desalination facility.

20         (d)  Any agency whose properties or works may be

21  affected shall be made a party, upon the request of the agency

22  or of any party to the proceeding made no later than 12 days

23  following the filing of the department's written analysis.

24         (5)  When appropriate, any person who is not a party

25  may be given an opportunity to present oral or written

26  communications to the administrative law judge. If the

27  administrative law judge proposes to consider such

28  communications, all parties shall be given an opportunity to

29  cross-examine, challenge, or rebut such communications.

30         (6)  The administrative law judge shall have all powers

31  and duties granted to administrative law judges by chapter 120

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  and by the laws and rules of the department, including the

  2  authority to resolve disputes over the completeness or

  3  sufficiency of an application for certification.

  4         (7)  The order of presentation at the certification

  5  hearing, if one is conducted, unless otherwise changed by the

  6  administrative law judge to ensure the orderly presentation of

  7  witnesses and evidence, shall be:

  8         (a)  The applicant.

  9         (b)  The department.

10         (c)  Other state agencies.

11         (d)  The water management district.

12         (e)  Local governments.

13         (f)  Other parties.

14         (8)  The applicant shall pay those expenses and costs

15  associated with the conduct of the hearings and the recording

16  and transcription of the proceedings.

17         403.5472  Local governments; informational public

18  meetings.--

19         (1)  Local governments may hold informational public

20  meetings in addition to the hearings specifically authorized

21  by this part on any matter associated with the desalination

22  facility proceeding. Such informational public meetings should

23  be held no later than 60 days after the application is filed.

24  The purpose of an informational public meeting is for the

25  local government to further inform the general public about

26  the proposed desalination facility, obtain comments from the

27  public, and formulate its recommendation with respect to the

28  proposed desalination facility.

29         (2)  Informational public meetings shall be held solely

30  at the option of the local government. Parties to the

31  proceedings under this part shall be encouraged to attend.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  However, no party shall be required to attend such

  2  informational public meetings.

  3         (3)  The failure to hold an informational public

  4  meeting or the procedure used for the informational public

  5  meeting shall not be grounds for the alteration of any time

  6  limitation in this part pursuant to s. 403.548 or grounds to

  7  deny or condition certification.

  8         403.5475  Amendment to the application.--

  9         (1)  Any amendment made to the application shall be

10  sent by the applicant to the administrative law judge and to

11  all parties to the proceeding.

12         (2)  Any amendment to the application made prior to

13  certification shall be disposed of as part of the original

14  certification proceeding. Amendment of the application may be

15  considered good cause for alteration of time limitations

16  pursuant to s. 403.548.

17         403.548  Alteration of time limitations.--Any time

18  limitation in this part may be altered by the administrative

19  law judge upon stipulation between the department and the

20  applicant, unless objected to by any party within 5 days after

21  notice or for good cause shown by any party.

22         403.549  Final disposition of application.--

23         (1)  If a certification hearing is conducted following

24  the timely request by a party, at its next regularly scheduled

25  meeting for which notice may be properly given occurring after

26  the receipt of the administrative law judge's recommended

27  order, the siting board shall act upon the application by

28  written order, approving in whole, approving with such

29  conditions as the board deems appropriate, or denying the

30  certification and stating the reasons for issuance or denial.

31  If no certification hearing is requested, the recommendation

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  of the department contained in the department's written

  2  analysis issued pursuant to s. 403.546(3) shall be issued by

  3  the department as the final order within 30 days after

  4  issuance of the department's written analysis.

  5         (2)  The issues that may be raised in any hearing

  6  before the board shall be limited to matters raised in the

  7  certification proceeding before the administrative law judge.

  8  The provisions of s. 120.57 shall apply to consideration of

  9  the recommended orders under this part. All parties, or their

10  representatives, or persons who appear before the board shall

11  be subject to the provisions of s. 120.66.

12         (3)  If certification is denied, the board or the

13  department, whichever issues the final order, shall set forth

14  in writing the action the applicant would have to take to

15  secure the approval of the application by the board.

16         (4)  In determining whether an application should be

17  approved in whole, approved with modifications or conditions,

18  or denied, consideration shall be given to whether, and the

19  extent to which, the proposed desalination facility will:

20         (a)  Provide a cost-effective, drought-resistant

21  alternative water supply.

22         (b)  Comply with the nonprocedural requirements of

23  agencies.

24         (c)  Effect a reasonable balance between the need for

25  the facility as a means of providing low-cost water and the

26  impact on the public and the environment.

27         (5)  The issuance or denial of the certification

28  pursuant to this section shall be the final administrative

29  action required as to an application for certification.

30         (6)  Upon approval of an application for certification,

31  it is in the public interest for the certified desalination

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  facility to be constructed in a timely manner to facilitate

  2  the provision of cost-effective, drought-resistant alternative

  3  water supplies in the state. Accordingly, in the event an

  4  appeal of such approval is timely filed by any public officer

  5  in an official capacity or by any board, commission, or other

  6  public body and a motion is filed with the board to condition

  7  or vacate the automatic stay effected upon appeal by such

  8  public officer or public body, the board shall exercise its

  9  discretion in acting on the motion, upon consideration of the

10  following:

11         (a)  If it is determined that the public interest or

12  the applicant will suffer irreparable harm due to the delay in

13  the construction of the desalination facility affected by the

14  appeal, the stay shall be vacated; or

15         (b)  If it is determined that any harm suffered by the

16  public interest or the applicant due to the delay in the

17  construction of the desalination facility affected by the

18  appeal can be remedied by money damages, the stay shall be

19  conditioned upon the posting of a good and sufficient bond or

20  other acceptable security in the amount of either $2 million,

21  the value of the increased cost to the applicant of providing

22  a drought-resistant alternative water supply, or an amount

23  sufficient to cover the potential damage to be suffered by the

24  applicant and the public interest as a result of the delay in

25  construction of the desalination facility during the pendency

26  of the appeal, whichever is greater.

27         403.551  Effect of certification.--

28         (1)  Subject to the conditions set forth therein,

29  certification shall constitute the sole license of the state

30  and any agency as to the approval of the location,

31  construction, maintenance, and operation of the desalination

                                  23

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  facility. The certification shall be valid for the life of the

  2  desalination facility, provided that construction is commenced

  3  within 5 years after the date of certification or such later

  4  date as may be authorized by the siting board.

  5         (2)(a)  The certification shall authorize the applicant

  6  to locate, construct, maintain, and operate the desalination

  7  facility subject only to the conditions of certification set

  8  forth in such certification.

  9         (b)  The certification may include conditions that

10  constitute variances, waivers, or exemptions from

11  nonprocedural standards, rules, or regulations of the

12  department or any other agency, which were expressly

13  considered during the proceeding, unless waived by the agency

14  as provided in this paragraph and which otherwise would be

15  applicable to the location, construction, maintenance, or

16  operation of the proposed desalination facility. Each party

17  shall notify the applicant and other parties at the time

18  scheduled for the filing of the agency reports of any

19  nonprocedural requirements not specifically listed in the

20  application from which a variance, waiver, exemption, or other

21  relief is necessary in order for the siting board to certify

22  the proposed desalination facility. Failure of such

23  notification shall be treated as a waiver from the

24  nonprocedural requirements of that agency.

25         (3)  The certification shall be in lieu of any license,

26  permit, certificate, or similar document required by any

27  agency pursuant to any other provision of state law. On

28  certification, any license, easement, or other interest in

29  state lands, except those the title of which is vested in the

30  Board of Trustees of the Internal Improvement Trust Fund,

31  shall be issued by the appropriate agency as a ministerial

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  act. The applicant shall be required to seek any necessary

  2  interest in state lands the title to which is vested in the

  3  Board of Trustees of the Internal Improvement Trust Fund from

  4  the board of trustees before, during, or after the

  5  certification proceeding, and certification may be made

  6  contingent upon issuance of the appropriate interest in

  7  realty. However, neither the applicant nor any party to the

  8  certification proceeding may directly or indirectly raise or

  9  relitigate any matter that was or could have been an issue in

10  the certification proceeding in any proceeding before the

11  Board of Trustees of the Internal Improvement Trust Fund

12  wherein the applicant is seeking a necessary interest in state

13  lands, but the information presented in the certification

14  proceeding shall be available for review by the board of

15  trustees and its staff.

16         (4)  No term or condition of certification shall be

17  interpreted to preclude the postcertification exercise by any

18  party of whatever procedural rights it may have under chapter

19  120, including those related to rulemaking proceedings.

20         403.5515  Modification of certification.--A

21  certification may be modified after issuance in any one of the

22  following ways:

23         (1)  The board may delegate to the department the

24  authority to modify specific conditions in the certification.

25         (2)  The department may modify the terms and conditions

26  of the certification if no party objects in writing to such

27  modification within 45 days after notice by mail to the last

28  address of record in the certification proceeding, and if no

29  other person whose substantial interests will be affected by

30  the modification objects in writing within 30 days after

31  issuance of the proposed order of modification. If objections

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  are raised, the applicant may file a petition for modification

  2  pursuant to subsection (3).

  3         (3)  The applicant or the department may file a

  4  petition for modification with the department and the Division

  5  of Administrative Hearings setting forth:

  6         (a)  The proposed modification.

  7         (b)  The factual reasons asserted for the modification.

  8         (c)  The anticipated additional environmental effects

  9  of the proposed modification.

10

11  Petitions for modification shall be disposed of in the same

12  manner as an application but with time periods established by

13  the administrative law judge commensurate with the

14  significance of the modification requested.

15         403.552  Suspension or revocation of

16  certification.--Any certification may be suspended or revoked

17  for:

18         (1)  Any material false statement in the application or

19  in the supplemental or additional statements of fact or

20  studies required of the applicant when a true answer would

21  have warranted the board's refusal to recommend a

22  certification in the first instance.

23         (2)  Failure to comply with the terms or conditions of

24  the certification.

25         (3)  Violation of the provisions of this part or rules

26  or orders issued under this part.

27         403.553  Enforcement of compliance.--Failure to comply

28  with the conditions of a certification or to comply with this

29  part shall constitute a violation of this chapter.

30         403.556  Superseded laws, regulations, and

31  certification power.--

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         (1)  If any provision of this part is in conflict with

  2  any other provision, limitation, or restriction under any law,

  3  rule, regulation, or ordinance of this state or any political

  4  subdivision, municipality, or agency, this part shall control

  5  and such law, rule, regulation, or ordinance shall be deemed

  6  superseded for the purposes of this part.

  7         (2)  The state hereby preempts the certification of

  8  desalination facilities for which application is made under

  9  this part.

10         (3)  The board shall have the power to adopt reasonable

11  procedural rules to carry out its duties under this part and

12  to give effect to the legislative intent that this part

13  provide an expedited, efficient, centrally coordinated,

14  one-stop licensing process.

15         403.5565  Fees; disposition.--The department shall

16  charge the applicant the following fees, as appropriate, which

17  shall be paid into the Florida Permit Fee Trust Fund:

18         (1)  An application fee of $25,000.

19         (a)  Sixty percent of the application fee shall go to

20  the department to cover any costs associated with reviewing

21  and acting upon the application and any costs for field

22  services associated with monitoring construction, maintenance,

23  and operation of the desalination facility.

24         (b)  Twenty percent of the application fee shall be

25  transferred to the Administrative Trust Fund of the Division

26  of Administrative Hearings of the Department of Management

27  Services.

28         (c)  Upon written request with proper itemized

29  accounting within 90 days after final agency action by the

30  siting board or withdrawal of the application, the department

31  shall reimburse the expenses and costs of the Department of

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  Community Affairs, the Fish and Wildlife Conservation

  2  Commission, the water management district, and the local

  3  government in the jurisdiction of which the desalination

  4  facility is to be located. Such reimbursement shall be

  5  authorized for the preparation of any studies required of the

  6  agencies by this part, for agency travel and per diem to

  7  attend any hearing held pursuant to this part, and for the

  8  local government to participate in the proceedings. In the

  9  event the amount available for allocation is insufficient to

10  provide for complete reimbursement to the agencies,

11  reimbursement shall be on a prorated basis.

12         (d)  If any sums are remaining, the department shall

13  retain them for its use in the same manner as is otherwise

14  authorized by this section. However, if the certification

15  application is withdrawn, the remaining sums shall be refunded

16  to the applicant within 90 days after withdrawal.

17         (2)  A certification modification fee of $3,500.

18         403.559  Certification admissible in eminent domain

19  proceedings; attorney's fees and costs.--

20         (1)  Certification pursuant to this part shall be

21  admissible as evidence of public need and necessity in

22  proceedings under chapter 73 or chapter 74.

23         (2)  No party may rely on this section or any provision

24  of chapter 73 or chapter 74 to request the award of attorney's

25  fees or costs incurred as a result of participation in the

26  certification proceeding.

27         Section 3.  Subsection (2) of section 367.111, Florida

28  Statutes, is amended to read:

29         367.111  Service.--

30         (2)  Each utility shall provide to each person

31  reasonably entitled thereto such safe, efficient, and

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  sufficient service as is prescribed by part VII VI of chapter

  2  403 and parts I and II of chapter 373, or rules adopted

  3  pursuant thereto; but such service shall not be less safe,

  4  less efficient, or less sufficient than is consistent with the

  5  approved engineering design of the system and the reasonable

  6  and proper operation of the utility in the public interest. If

  7  the commission finds that a utility has failed to provide its

  8  customers with water or wastewater service that meets the

  9  standards promulgated by the Department of Environmental

10  Protection or the water management districts, the commission

11  may reduce the utility's return on equity until the standards

12  are met.

13         Section 4.  Paragraph (c) of subsection (2) and

14  subsection (3) of section 381.0062, Florida Statutes, are

15  amended to read:

16         381.0062  Supervision; private and certain public water

17  systems.--

18         (2)  DEFINITIONS.--As used in this section:

19         (c)  "Florida Safe Drinking Water Act" means part VII

20  VI of chapter 403.

21         (3)  SUPERVISION.--The department and its agents shall

22  have general supervision and control over all private water

23  systems, multifamily water systems, and public water systems

24  not covered or included in the Florida Safe Drinking Water Act

25  (part VII VI of chapter 403), and over those aspects of the

26  public water supply program for which it has the duties and

27  responsibilities provided for in part VII VI of chapter 403.

28  The department shall:

29         (a)  Administer and enforce the provisions of this

30  section and all rules and orders adopted or issued under this

31  section, including water quality and monitoring standards.

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1         (b)  Require any person wishing to construct, modify,

  2  or operate a limited use community or limited use commercial

  3  public water system or a multifamily water system to first

  4  make application to and obtain approval from the department on

  5  forms adopted by rule of the department.

  6         (c)  Review and act upon any application for the

  7  construction, modification, operation, or change of ownership

  8  of, and conduct surveillance, enforcement, and compliance

  9  investigations of, limited use community and limited use

10  commercial public water systems, and multifamily water

11  systems.

12         (d)  Require a fee from the supplier of water in an

13  amount sufficient to cover the costs of reviewing and acting

14  upon any application for the construction, modification, or

15  operation of a limited use community and limited use

16  commercial public water system, of not less than $10 or more

17  than $90 annually.

18         (e)  Require a fee from the supplier of water in an

19  amount sufficient to cover the costs of reviewing and acting

20  upon any application for the construction or change of

21  ownership of a multifamily water system, of not less than $10

22  or more than $90.

23         (f)  Require a fee from the supplier of water in an

24  amount sufficient to cover the costs of sample collection,

25  review of analytical results, health-risk interpretations, and

26  coordination with other agencies when such work is not

27  included in paragraphs (b) and (c) and is requested by the

28  supplier of water, of not less than $10 or more than $90.

29         (g)  Require suppliers of water to collect samples of

30  water, to submit such samples to a department-certified

31

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1  drinking water laboratory for contaminant analysis, and to

  2  keep sampling records as required by rule of the department.

  3         (h)  Require all fees collected by the department in

  4  accordance with the provisions of this section to be deposited

  5  in an appropriate trust fund of the department, and used

  6  exclusively for the payment of costs incurred in the

  7  administration of this section.

  8         (i)  Prohibit any supplier of water from, intentionally

  9  or otherwise, introducing any contaminant which poses a health

10  hazard into a drinking water system.

11         (j)  Require suppliers of water to give public notice

12  of water problems and corrective measures under the conditions

13  specified by rule of the department.

14         (k)  Require a fee to cover the cost of reinspection of

15  any system regulated under this section, which may not be less

16  than $25 or more than $40.

17         Section 5.  Section 381.0067, Florida Statutes, is

18  amended to read:

19         381.0067  Corrective orders; private and certain public

20  water systems and onsite sewage treatment and disposal

21  systems.--When the department or its agents, through

22  investigation, find that any private water system, public

23  water system not covered or included in the Florida Safe

24  Drinking Water Act (part VII VI of chapter 403) or onsite

25  sewage treatment and disposal system constitutes a nuisance or

26  menace to the public health, it may issue an order requiring

27  the owner to correct the improper condition.

28         Section 6.  This act shall take effect upon becoming a

29  law.

30

31

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    Florida Senate - 2002                                  SB 1678
    33-1393-02                                              See HB




  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3    Provides additional conditions for the location of simple
      cycle turbine electric power plants. Provides eligibility
  4    for cooperative funding assistance for plants designed to
      promote alternative water supplies. Creates the
  5    "Desalination Facility Siting Act." Provides requirements
      and procedures for certification of desalination
  6    facilities. Provides powers and duties of the Department
      of Environmental Protection, administrative law judges
  7    appointed by the department to conduct certification
      application hearings, and the Governor and Cabinet
  8    sitting as the Desalination Facility Siting Board.
      Provides for notice, scheduling, and participation in
  9    proceedings, payment of expenses and costs, informational
      public meetings, amendments to certification
10    applications, modification of a certification after
      issuance, fees and the uses thereof, suspension or
11    revocation of a certification, and enforcement of the
      provisions of the act. Authorizes the department and the
12    siting board to adopt certain rules. Provides that a
      desalination facility certification is admissible as
13    evidence of public need in eminent domain proceedings.
      (See bill for details.)
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