CS/HB 963

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

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