Florida Senate - 2010                             CS for SB 1126
       
       
       
       By the Committee on Environmental Preservation and Conservation;
       and Senator Altman
       
       
       
       592-02517-10                                          20101126c1
    1                        A bill to be entitled                      
    2         An act relating to permitting; amending s. 403.973,
    3         F.S.; clarifying duties of the Office of Tourism,
    4         Trade, and Economic Development to approve expedited
    5         permitting and comprehensive plan amendments;
    6         providing additional authority to the Secretary of
    7         Environmental Protection; revising criteria for
    8         businesses submitting permit applications or local
    9         comprehensive plan amendments; providing that permit
   10         applications and local comprehensive plan amendments
   11         for specified biofuel and renewable energy projects
   12         are eligible for the expedited permitting process;
   13         providing for the establishment of regional permit
   14         action teams through the execution of memoranda of
   15         agreement developed by permit applicants and the
   16         secretary; providing for the appeal of a local
   17         government’s approval of an expedited permit or
   18         comprehensive plan amendment; requiring such appeals
   19         to be consolidated with challenges to state agency
   20         actions; specifying the form of the memoranda of
   21         agreement developed by the secretary; revising the
   22         deadline by which certain final orders must be issued;
   23         specifying additional requirements for recommended
   24         orders; providing for challenges to state agency
   25         action related to expedited permitting for specified
   26         renewable energy projects; revising provisions
   27         relating to the review of sites proposed for the
   28         location of facilities eligible for the Innovation
   29         Incentive Program; providing that electrical power
   30         projects using renewable fuels are eligible for
   31         expedited review; providing an effective date.
   32                                                                  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Section 403.973, Florida Statutes, is amended to
   36  read:
   37         403.973 Expedited permitting; amendments to comprehensive
   38  plans plan amendments.—
   39         (1) It is the intent of the Legislature to encourage and
   40  facilitate the location and expansion of those types of economic
   41  development projects which offer job creation and high wages,
   42  strengthen and diversify the state’s economy, and have been
   43  thoughtfully planned to take into consideration the protection
   44  of the state’s environment. It is also the intent of the
   45  Legislature to provide for an expedited permitting and
   46  comprehensive plan amendment process for such projects.
   47         (2) As used in this section, the term:
   48         (a) “Duly noticed” means publication in a newspaper of
   49  general circulation in the municipality or county with
   50  jurisdiction. The notice shall appear on at least 2 separate
   51  days, one of which shall be at least 7 days before the meeting.
   52  The notice shall state the date, time, and place of the meeting
   53  scheduled to discuss or enact the memorandum of agreement, and
   54  the places within the municipality or county where such proposed
   55  memorandum of agreement may be inspected by the public. The
   56  notice must be one-eighth of a page in size and must be
   57  published in a portion of the paper other than the legal notices
   58  section. The notice shall also advise that interested parties
   59  may appear at the meeting and be heard with respect to the
   60  memorandum of agreement.
   61         (b) “Jobs” means permanent, full-time equivalent positions
   62  not including construction jobs.
   63         (c) “Office” means the Office of Tourism, Trade, and
   64  Economic Development.
   65         (d) “Permit applications” means state permits and licenses,
   66  and at the option of a participating local government, local
   67  development permits or orders.
   68         (e) “Secretary” means the Secretary of Environmental
   69  Protection or his or her designee.
   70         (3)(a) The secretary Governor, through the office, shall
   71  direct the creation of regional permit action teams, for the
   72  purpose of expediting review of permit applications and local
   73  comprehensive plan amendments submitted by:
   74         1. Businesses creating at least 50 100 jobs;, or
   75         2. Businesses creating at least 25 50 jobs if the project
   76  is located in an enterprise zone, or in a county having a
   77  population of fewer less than 75,000 or in a county having a
   78  population of fewer less than 100,000 which is contiguous to a
   79  county having a population of fewer less than 75,000, as
   80  determined by the most recent decennial census, residing in
   81  incorporated and unincorporated areas of the county., or
   82         (b) On a case-by-case basis and at the request of a county
   83  or municipal government, the office may certify as eligible for
   84  expedited review a project not meeting the minimum job creation
   85  thresholds but creating a minimum of 10 jobs. The recommendation
   86  from the governing body of the county or municipality in which
   87  the project may be located is required in order for the office
   88  to certify that any project is eligible for expedited review
   89  under this paragraph. When considering projects that do not meet
   90  the minimum job creation thresholds but that are recommended by
   91  the governing body in which the project may be located, the
   92  office shall consider economic impact factors that include, but
   93  are not limited to:
   94         1. The proposed wage and skill levels relative to those
   95  existing in the area in which the project may be located;
   96         2. The project’s potential to diversify and strengthen the
   97  area’s economy;
   98         3. The amount of capital investment; and
   99         4. The number of jobs that will be made available for
  100  persons served by the welfare transition program.
  101         (c) At the request of a county or municipal government, the
  102  office or a Quick Permitting County may certify projects located
  103  in counties where the ratio of new jobs per participant in the
  104  welfare transition program, as determined by Workforce Florida,
  105  Inc., is less than one or otherwise critical, as eligible for
  106  the expedited permitting process. Such projects must meet the
  107  numerical job creation criteria of this subsection, but the jobs
  108  created by the project do not have to be high-wage jobs that
  109  diversify the state’s economy.
  110         (d) Projects located in a designated brownfield area are
  111  eligible for the expedited permitting process.
  112         (e) Projects that are part of the state-of-the-art
  113  biomedical research institution and campus to be established in
  114  this state by the grantee under s. 288.955 are eligible for the
  115  expedited permitting process, if the projects are designated as
  116  part of the institution or campus by the board of county
  117  commissioners of the county in which the institution and campus
  118  are established.
  119         (f) Projects resulting in the production of biofuels
  120  cultivated on lands that are 1,000 acres or more or the
  121  construction of a biofuel or biodiesel processing facility or a
  122  facility generating renewable energy as defined in s.
  123  366.91(2)(d) are eligible for the expedited permitting process.
  124         (4) The regional teams shall be established through the
  125  execution of memoranda of agreement developed by the applicant
  126  and secretary, with input solicited from between the office and
  127  the respective heads of the Department of Environmental
  128  Protection, the Department of Community Affairs, the Department
  129  of Transportation and its district offices, the Department of
  130  Agriculture and Consumer Services, the Fish and Wildlife
  131  Conservation Commission, appropriate regional planning councils,
  132  appropriate water management districts, and voluntarily
  133  participating municipalities and counties. The memoranda of
  134  agreement should also accommodate participation in this
  135  expedited process by other local governments and federal
  136  agencies as circumstances warrant.
  137         (5) In order to facilitate local government’s option to
  138  participate in this expedited review process, the secretary
  139  office shall, in cooperation with local governments and
  140  participating state agencies, create a standard form memorandum
  141  of agreement. A local government shall hold a duly noticed
  142  public workshop to review and explain to the public the
  143  expedited permitting process and the terms and conditions of the
  144  standard form memorandum of agreement.
  145         (6) The local government shall hold a duly noticed public
  146  hearing to execute a memorandum of agreement for each qualified
  147  project. Notwithstanding any other provision of law, and at the
  148  option of the local government, the workshop provided for in
  149  subsection (5) may be conducted on the same date as the public
  150  hearing held under this subsection. The memorandum of agreement
  151  that a local government signs shall include a provision
  152  identifying necessary local government procedures and time
  153  limits that will be modified to allow for the local government
  154  decision on the project within 90 days. The memorandum of
  155  agreement applies to projects, on a case-by-case basis, that
  156  qualify for special review and approval as specified in this
  157  section. The memorandum of agreement must make it clear that
  158  this expedited permitting and review process does not modify,
  159  qualify, or otherwise alter existing local government
  160  nonprocedural standards for permit applications, unless
  161  expressly authorized by law.
  162         (7) At the option of the participating local government,
  163  Appeals of local government comprehensive plan approvals its
  164  final approval for a project shall may be pursuant to the
  165  summary hearing provisions of s. 120.574, pursuant to subsection
  166  (14), and consolidated with the challenge of any applicable
  167  state agency actions or pursuant to other appellate processes
  168  available to the local government. The local government’s
  169  decision to enter into a summary hearing must be made as
  170  provided in s. 120.574 or in the memorandum of agreement.
  171         (8) Each memorandum of agreement shall include a process
  172  for final agency action on permit applications and local
  173  comprehensive plan amendment approvals within 90 days after
  174  receipt of a completed application, unless the applicant agrees
  175  to a longer time period or the secretary office determines that
  176  unforeseen or uncontrollable circumstances preclude final agency
  177  action within the 90-day timeframe. Permit applications governed
  178  by federally delegated or approved permitting programs whose
  179  requirements would prohibit or be inconsistent with the 90-day
  180  timeframe are exempt from this provision, but must be processed
  181  by the agency with federally delegated or approved program
  182  responsibility as expeditiously as possible.
  183         (9) The secretary office shall inform the Legislature by
  184  October 1 of each year which agencies have not entered into or
  185  implemented an agreement and identify any barriers to achieving
  186  success of the program.
  187         (10) The memoranda of agreement may provide for the waiver
  188  or modification of procedural rules prescribing forms, fees,
  189  procedures, or time limits for the review or processing of
  190  permit applications under the jurisdiction of those agencies
  191  that are party to the memoranda of agreement. Notwithstanding
  192  any other provision of law to the contrary, a memorandum of
  193  agreement must to the extent feasible provide for proceedings
  194  and hearings otherwise held separately by the parties to the
  195  memorandum of agreement to be combined into one proceeding or
  196  held jointly and at one location. Such waivers or modifications
  197  shall not be available for permit applications governed by
  198  federally delegated or approved permitting programs, the
  199  requirements of which would prohibit, or be inconsistent with,
  200  such a waiver or modification.
  201         (11) The standard form for memoranda of agreement shall
  202  include guidelines to be used in working with state, regional,
  203  and local permitting authorities. Guidelines may include, but
  204  are not limited to, the following:
  205         (a) A central contact point for filing permit applications
  206  and local comprehensive plan amendments and for obtaining
  207  information on permit and local comprehensive plan amendment
  208  requirements;
  209         (b) Identification of the individual or individuals within
  210  each respective agency who will be responsible for processing
  211  the expedited permit application or local comprehensive plan
  212  amendment for that agency;
  213         (c) A mandatory preapplication review process to reduce
  214  permitting conflicts by providing guidance to applicants
  215  regarding the permits needed from each agency and governmental
  216  entity, site planning and development, site suitability and
  217  limitations, facility design, and steps the applicant can take
  218  to ensure expeditious permit application and local comprehensive
  219  plan amendment review. As a part of this process, the first
  220  interagency meeting to discuss a project shall be held within 14
  221  days after the secretary’s office’s determination that the
  222  project is eligible for expedited review. Subsequent interagency
  223  meetings may be scheduled to accommodate the needs of
  224  participating local governments that are unable to meet public
  225  notice requirements for executing a memorandum of agreement
  226  within this timeframe. This accommodation may not exceed 45 days
  227  from the secretary’s office’s determination that the project is
  228  eligible for expedited review;
  229         (d) The preparation of a single coordinated project
  230  description form and checklist and an agreement by state and
  231  regional agencies to reduce the burden on an applicant to
  232  provide duplicate information to multiple agencies;
  233         (e) Establishment of a process for the adoption and review
  234  of any comprehensive plan amendment needed by any certified
  235  project within 90 days after the submission of an application
  236  for a comprehensive plan amendment. However, the memorandum of
  237  agreement may not prevent affected persons as defined in s.
  238  163.3184 from appealing or participating in this expedited plan
  239  amendment process and any review or appeals of decisions made
  240  under this paragraph; and
  241         (f) Additional incentives for an applicant who proposes a
  242  project that provides a net ecosystem benefit.
  243         (12) The applicant, the regional permit action team, and
  244  participating local governments may agree to incorporate into a
  245  single document the permits, licenses, and approvals that are
  246  obtained through the expedited permit process. This consolidated
  247  permit is subject to the summary hearing provisions set forth in
  248  subsection (14).
  249         (13) Notwithstanding any other provisions of law:
  250         (a) Local comprehensive plan amendments for projects
  251  qualified under this section are exempt from the twice-a-year
  252  limits provision in s. 163.3187; and
  253         (b) Projects qualified under this section are not subject
  254  to interstate highway level-of-service standards adopted by the
  255  Department of Transportation for concurrency purposes. The
  256  memorandum of agreement specified in subsection (5) must include
  257  a process by which the applicant will be assessed a fair share
  258  of the cost of mitigating the project’s significant traffic
  259  impacts, as defined in chapter 380 and related rules. The
  260  agreement must also specify whether the significant traffic
  261  impacts on the interstate system will be mitigated through the
  262  implementation of a project or payment of funds to the
  263  Department of Transportation. Where funds are paid, the
  264  Department of Transportation must include in the 5-year work
  265  program transportation projects or project phases, in an amount
  266  equal to the funds received, to mitigate the traffic impacts
  267  associated with the proposed project.
  268         (14)(a) Challenges to state agency action in the expedited
  269  permitting process for projects processed under this section are
  270  subject to the summary hearing provisions of s. 120.574, except
  271  that the administrative law judge’s decision, as provided in s.
  272  120.574(2)(f), shall be in the form of a recommended order and
  273  shall not constitute the final action of the state agency. In
  274  those proceedings where the action of only one agency of the
  275  state, other than the Department of Environmental Protection, is
  276  challenged, the agency of the state shall issue the final order
  277  within 45 10 working days after of receipt of the administrative
  278  law judge’s recommended order. The recommended order shall
  279  inform the parties of their right to file exceptions or
  280  responses to the recommended order in accordance with the Rules
  281  of Administrative Procedure. In those proceedings where the
  282  actions of more than one agency of the state are challenged, the
  283  Governor shall issue the final order within 45 10 working days
  284  after of receipt of the administrative law judge’s recommended
  285  order. The recommended order shall inform the parties of their
  286  right to file exceptions or responses to the recommended order
  287  in accordance with the Rules of Administrative Procedure. This
  288  paragraph does not apply to the issuance of department licenses
  289  required under any federally delegated or approved permit
  290  program. In such instances, the department shall enter the final
  291  order. The participating agencies of the state may opt at the
  292  preliminary hearing conference to allow the administrative law
  293  judge’s decision to constitute the final agency action. If a
  294  participating local government agrees to participate in the
  295  summary hearing provisions of s. 120.574 for purposes of review
  296  of local government comprehensive plan amendments, s.
  297  163.3184(9) and (10) apply.
  298         (b) Projects identified in paragraph (3)(f) or challenges
  299  to state agency action in the expedited permitting process for
  300  establishment of a state-of-the-art biomedical research
  301  institution and campus in this state by the grantee under s.
  302  288.955 are subject to the same requirements as challenges
  303  brought under paragraph (a), except that, notwithstanding s.
  304  120.574, summary proceedings must be conducted within 30 days
  305  after a party files the motion for summary hearing, regardless
  306  of whether the parties agree to the summary proceeding.
  307         (15) The office, working with the agencies providing
  308  cooperative assistance and input regarding participating in the
  309  memoranda of agreement, shall review sites proposed for the
  310  location of facilities eligible for the Innovation Incentive
  311  Program under s. 288.1089. Within 20 days after the request for
  312  the review by the office, the agencies shall provide to the
  313  office a statement as to each site’s necessary permits under
  314  local, state, and federal law and an identification of
  315  significant permitting issues, which if unresolved, may result
  316  in the denial of an agency permit or approval or any significant
  317  delay caused by the permitting process.
  318         (16) This expedited permitting process shall not modify,
  319  qualify, or otherwise alter existing agency nonprocedural
  320  standards for permit applications or local comprehensive plan
  321  amendments, unless expressly authorized by law. If it is
  322  determined that the applicant is not eligible to use this
  323  process, the applicant may apply for permitting of the project
  324  through the normal permitting processes.
  325         (17) The office shall be responsible for certifying a
  326  business as eligible for undergoing expedited review under this
  327  section. Enterprise Florida, Inc., a county or municipal
  328  government, or the Rural Economic Development Initiative may
  329  recommend to the Office of Tourism, Trade, and Economic
  330  Development that a project meeting the minimum job creation
  331  threshold undergo expedited review.
  332         (18) The office, working with the Rural Economic
  333  Development Initiative and the agencies participating in the
  334  memoranda of agreement, shall provide technical assistance in
  335  preparing permit applications and local comprehensive plan
  336  amendments for counties having a population of less than 75,000
  337  residents, or counties having fewer than 100,000 residents which
  338  are contiguous to counties having fewer than 75,000 residents.
  339  Additional assistance may include, but not be limited to,
  340  guidance in land development regulations and permitting
  341  processes, working cooperatively with state, regional, and local
  342  entities to identify areas within these counties which may be
  343  suitable or adaptable for preclearance review of specified types
  344  of land uses and other activities requiring permits.
  345         (19) The following projects are ineligible for review under
  346  this part:
  347         (a) A project funded and operated by a local government, as
  348  defined in s. 377.709, and located within that government’s
  349  jurisdiction.
  350         (b) A project, the primary purpose of which is to:
  351         1. Effect the final disposal of solid waste, biomedical
  352  waste, or hazardous waste in this state.
  353         2. Produce electrical power, unless the production of
  354  electricity is incidental and not the primary function of the
  355  project or the electrical power is derived from a fuel source
  356  for renewable energy as defined in s. 366.91(2)(d).
  357         3. Extract natural resources.
  358         4. Produce oil.
  359         5. Construct, maintain, or operate an oil, petroleum,
  360  natural gas, or sewage pipeline.
  361         Section 2. This act shall take effect upon becoming a law.


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