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       Florida Senate - 2010                      CS for CS for SB 2000
       By the Committees on Environmental Preservation and
       Conservation; and Commerce; and Senator Ring
       592-03552-10                                          20102000c2
    1                        A bill to be entitled                      
    2         An act relating to ports; amending ss. 161.055 and
    3         253.002, F.S.; conforming provisions to changes made
    4         by the act; amending s. 311.09, F.S.; requiring the
    5         Department of Transportation to include certain
    6         seaport projects and funding related to the Florida
    7         Seaport Transportation and Economic Development grant
    8         program in its legislative budget request; requiring
    9         the department to submit work program amendments
   10         requested by the Florida Seaport Transportation and
   11         Economic Development Council within a certain
   12         timeframe; amending s. 373.403, F.S.; revising the
   13         definition for “stormwater management system” to
   14         exempt certain structures from regulation; creating s.
   15         373.4133, F.S.; providing legislative findings;
   16         providing for port conceptual permits; providing which
   17         ports may apply for a port conceptual permit;
   18         authorizing a private entity that has adjacent
   19         property to apply for a permit; specifying the length
   20         of time for which a permit may be issued; providing
   21         that a conceptual permit is the state’s water quality
   22         compliance certification and conceptual determination
   23         of consistency with the state’s coastal zone
   24         management program; providing for permit applications
   25         and application requirements; requiring the department
   26         to effect a certain balance between the benefits of
   27         the facility and the environment; providing that a
   28         permit provides certain assurances with respect to
   29         construction permits if certain requirements are met;
   30         providing for advance mitigation; providing that
   31         certain actions may not be delegated by the Board of
   32         Trustees of the Internal Improvement Trust Fund;
   33         providing an exception for sovereignty submerged
   34         lands; providing procedures for the approval or denial
   35         of an application; providing for administrative
   36         challenges; authorizing the department and the board
   37         to issue certain permits and authorizations before
   38         certain actions are taken under the Endangered Species
   39         Act; authorizing the department and the board to adopt
   40         rules; amending s. 403.061, F.S.; removing the
   41         requirement for the Department of Environmental
   42         Protection to enter into memoranda of agreement
   43         relating to the issuance of certain joint coastal
   44         permits or other permits with the Florida Ports
   45         Council; amending s. 403.813, F.S.; revising
   46         requirements relating to maintenance dredging at
   47         seaports; revising the mixing zone and a requirement
   48         relating to the discharge of return water; increasing
   49         the time allowance for maintenance dredging after a
   50         storm event; providing an effective date.
   52  Be It Enacted by the Legislature of the State of Florida:
   54         Section 1. Subsection (1) of section 161.055, Florida
   55  Statutes, is amended to read:
   56         161.055 Concurrent processing of permits.—
   57         (1) If When an activity for which a permit is required
   58  under this chapter also requires a permit, authorization, or
   59  approval described in paragraph (2)(b), or a port conceptual
   60  permit under s. 373.4133, the department may, by rule, provide
   61  that the activity may be undertaken only upon receipt of a
   62  single permit from the department called a “joint coastal
   63  permit,” as provided in this section.
   64         Section 2. Subsection (2) of section 253.002, Florida
   65  Statutes, is amended to read:
   66         253.002 Department of Environmental Protection, water
   67  management districts, Fish and Wildlife Conservation Commission,
   68  and Department of Agriculture and Consumer Services; duties with
   69  respect to state lands.—
   70         (2) Delegations to the department, or a water management
   71  district, or the Department of Agriculture and Consumer Services
   72  of authority to take final agency action on applications for
   73  authorization to use submerged lands owned by the Board of
   74  Trustees of the Internal Improvement Trust Fund, without any
   75  action on behalf of the board of trustees, shall be by rule;
   76  however, delegations related to conceptual permits must be in
   77  accordance with s. 373.4133. Until rules adopted pursuant to
   78  this subsection become effective, existing delegations by the
   79  board of trustees shall remain in full force and effect.
   80  However, the board of trustees is not limited or prohibited from
   81  amending these delegations. The board of trustees shall adopt by
   82  rule any delegations of its authority to take final agency
   83  action without action by the board of trustees on applications
   84  for authorization to use board of trustees-owned submerged
   85  lands. Any final agency action, without action by the board of
   86  trustees, taken by the department, or a water management
   87  district, or the Department of Agriculture and Consumer Services
   88  on applications to use board of trustees-owned submerged lands
   89  is shall be subject to the provisions of s. 373.4275.
   90  Notwithstanding any other provision of this subsection, the
   91  board of trustees, the Department of Legal Affairs, and the
   92  department retain the concurrent authority to assert or defend
   93  title to submerged lands owned by the board of trustees.
   94         Section 3. Subsection (10) of section 311.09, Florida
   95  Statutes, is amended to read:
   96         311.09 Florida Seaport Transportation and Economic
   97  Development Council.—
   98         (10) The Department of Transportation shall include in its
   99  annual legislative budget request a Florida Seaport
  100  Transportation and Economic Development grant program for
  101  expenditure of funds of not less than $8 million per year. The
  102  Such budget request must shall include funding for projects
  103  approved by the council which have been determined by each
  104  agency to be consistent and which have been determined by the
  105  Office of Tourism, Trade, and Economic Development to be
  106  economically beneficial.
  107         (a) The department shall include a list of the approved
  108  seaport projects from the tentative work program developed
  109  pursuant to s. 339.135(4) which are to be funded during the next
  110  fiscal year. The department shall also include the total amount
  111  of funding under s. 311.07 to be allocated to seaport projects
  112  during the successive 4 fiscal years of the tentative work
  113  program.
  114         (b) The council may submit to the department a list of
  115  approved projects that could be made production-ready within the
  116  next 2 years. The list shall be submitted as part of the needs
  117  and project list prepared pursuant to s. 339.135(2)(b) 339.135.
  118  Upon the written request of the council, the department shall
  119  submit work program amendments pursuant to s. 339.135(7) to the
  120  Governor within 10 days after the date the request is received
  121  by the department, or the effective date of the amendment,
  122  termination, or closure of the applicable funding agreement
  123  between the department and the seaport required to release the
  124  funds from the existing commitment, whichever occurs later.
  125         Section 4. Subsection (10) of section 373.403, Florida
  126  Statutes, is amended to read:
  127         373.403 Definitions.—When appearing in this part or in any
  128  rule, regulation, or order adopted pursuant thereto, the
  129  following terms mean:
  130         (10) “Stormwater management system” means a system that
  131  which is designed and constructed or implemented to control
  132  discharges that which are caused necessitated by rainfall
  133  events, incorporating methods to collect, convey, store, absorb,
  134  inhibit, treat, use, or reuse water to prevent or reduce
  135  flooding, overdrainage, environmental degradation, and water
  136  pollution or otherwise affect the quantity and quality of
  137  discharges from the system. Overwater piers, docks, and similar
  138  structures located in a port listed in s. 311.09(1) are not part
  139  of a stormwater management system and are not considered
  140  impervious surfaces under this chapter or chapter 403 if the
  141  port has a stormwater pollution prevention plan developed
  142  pursuant to the National Pollution Discharge Elimination System.
  143         Section 5. Section 373.4133, Florida Statutes, is created
  144  to read:
  145         373.4133Port conceptual permits.—
  146         (1) The Legislature finds that seaport facilities are
  147  critical infrastructure facilities that significantly support
  148  the economic development of the state. The Legislature further
  149  finds that it is necessary to provide a method of permit review
  150  that allows seaports in this state to become internationally
  151  competitive.
  152         (2) Any port listed in s. 311.09(1) may apply to the
  153  department for a port conceptual permit, which may include
  154  authorization to use sovereignty submerged lands under chapter
  155  253 under a joint coastal permit issued pursuant to s. 161.055
  156  or an environmental resource permit issued pursuant to this part
  157  for all or a portion of the area within the geographic
  158  boundaries of the port. A private entity that has a controlling
  159  interest in property used for private industrial marine
  160  activities in the immediate vicinity of such port may also apply
  161  under this section. A port conceptual permit may be issued for
  162  up to 20 years and extended once for 10 additional years. A port
  163  conceptual permit constitutes the state’s conceptual water
  164  quality compliance certification for purposes of s. 401 of the
  165  Clean Water Act, and the state’s conceptual determination that
  166  the activities contained in the permit are consistent with the
  167  state’s federally approved coastal zone management program.
  168         (3) A port conceptual permit application must include
  169  sufficient information to provide reasonable assurance that the
  170  engineering and environmental concepts upon which the designs
  171  are based are likely to meet applicable rule criteria for the
  172  issuance of construction permits for subsequent phases of the
  173  project. At a minimum, the application should include
  174  projections of costs, revenue, and job creation for proposed
  175  development; proposed construction areas and areas where
  176  construction will not occur; estimated or maximum anticipated
  177  impacts to wetlands and other surface waters, and any proposed
  178  mitigation for those impacts; estimated or maximum amount of
  179  anticipated impervious surface and the nature of the stormwater
  180  treatment system for those areas; and the general location and
  181  types of activities on sovereignty submerged lands. Except where
  182  construction approval is requested as part of the application,
  183  the application is not expected to include final design
  184  specifications and drawings. The department shall specify any
  185  additional information that must be submitted as part of a
  186  request for a subsequent construction permit or authorization in
  187  the port conceptual permit.
  188         (4) In determining whether a port conceptual permit
  189  application should be approved in whole, with modifications or
  190  conditions, or denied, the department shall effect a reasonable
  191  balance between the potential benefits of the facility and the
  192  impacts upon water quality, fish and wildlife, water resources,
  193  and other natural resources of the state resulting from the
  194  construction and operation of the facility.
  195         (5) A port conceptual approval permit provides the
  196  permitholder with assurance during the duration of the permit
  197  that the engineering and environmental concepts upon which the
  198  designs are based are likely to meet applicable rule criteria
  199  for the issuance of construction permits for subsequent phases
  200  of the project if:
  201         (a) There are no changes in the rules governing the
  202  conditions of issuance of permits for future phases of the
  203  project and the conceptual approval permit is not inconsistent
  204  with any total maximum daily load or basin management action
  205  plan adopted for the water body into which the system discharges
  206  or is located pursuant to s. 403.067(7) and rule 62-304, Florida
  207  Administrative Code; and
  208         (b) Applications for proposed future phase activities under
  209  the permit are consistent with the design and conditions of the
  210  permit. Primary areas for consistency comparisons include the
  211  size, location, and extent of the system; type of activity;
  212  percent imperviousness; allowable discharge and points of
  213  discharge; location and extent of wetland and other surface
  214  water impacts and proposed mitigation plan, if required; control
  215  elevations; extent of stormwater reuse; and detention-retention
  216  volumes. If an application for subsequent phase activity is not
  217  consistent with the terms and conditions of the approved permit,
  218  the applicant may request a modification of the permit to
  219  resolve the inconsistency or may request that the application be
  220  processed independently of the permit.
  221         (6) Notwithstanding any other provision of law, a port
  222  conceptual permit or associated construction permit, including
  223  any applicable sovereignty submerged lands authorization, may
  224  authorize advance mitigation for impacts expected as a result of
  225  the activities described in the port conceptual permit. Such
  226  advance mitigation shall be credited to offset the impacts of
  227  the activities when undertaken to the extent that the advance
  228  mitigation is successful.
  229         (7) Final agency action on a port conceptual sovereignty
  230  submerged lands authorization associated with a port conceptual
  231  permit may not be delegated by the Board of Trustees of the
  232  Internal Improvement Trust Fund. However, approval of the
  233  authorization by the board delegates to the department authority
  234  to take final agency action on behalf of the board on any
  235  sovereignty submerged lands authorization necessary to construct
  236  facilities included in the authorization, unless a member of the
  237  board specifically requests that final agency action be brought
  238  before the board. Any delegation to the department concerning a
  239  private project does not exempt the private project from
  240  applicable board rules, including lease and easement fees.
  241         (8) Except as otherwise provided in this subsection, the
  242  following procedures apply to the approval or denial of an
  243  application for a port conceptual permit, or a final permit or
  244  authorization:
  245         (a) Applications for a port conceptual permit, including
  246  any request for the conceptual approval of the use of sovereign
  247  submerged lands, must be processed in accordance with ss.
  248  373.427 and 120.60. However, if the applicant believes a request
  249  for additional information is not authorized by law or agency
  250  rule, the applicant may request an informal hearing pursuant to
  251  s. 120.57(2) before the secretary of the department to determine
  252  whether the application is complete.
  253         (b) Upon issuance of the department’s notice of intent to
  254  issue or deny a port conceptual permit, the applicant shall
  255  publish a one-time notice of such intent, prepared by the
  256  department, in the newspaper having the largest general
  257  circulation in the county or counties where the port is located.
  258         (c) Final agency action on a port conceptual permit is
  259  subject to challenge under ss. 120.569 and 120.57. However,
  260  final agency action to authorize subsequent construction of
  261  facilities contained in a port conceptual permit may be
  262  challenged only by a third party for consistency with the port
  263  conceptual permit.
  264         (d)A person who will be substantially affected by a final
  265  agency action described in paragraph (c) must initiate
  266  administrative proceedings pursuant to ss. 120.569 and 120.57
  267  within 21 days after the publication of the notice of the
  268  proposed action. If administrative proceedings are requested,
  269  the proceedings are subject to the summary hearing provisions of
  270  s. 120.574. However, if the decision of the administrative law
  271  judge will be a recommended order, rather than a final order, a
  272  summary proceeding must be conducted within 90 days after a
  273  party files a motion for summary hearing regardless of whether
  274  the parties agree to the summary proceeding.
  275         (9) Notwithstanding any other provision of law, the
  276  department and the Board of Trustees of the Internal Improvement
  277  Trust Fund may issue permits and authorizations pursuant to this
  278  section in advance of the issuance of a take authorization as
  279  provided in the federal Endangered Species Act and its
  280  implementing regulations. However, the permits and
  281  authorizations must include a condition requiring that
  282  authorized activities may not commence until such take
  283  authorization is issued and such activities must be consistent
  284  with such authorization. The department shall unilaterally
  285  modify any permit or authorization issued pursuant to this
  286  section to make the permit or authorization consistent with any
  287  subsequently issued incidental take authorization. Such
  288  unilateral modification does not create a point of entry for any
  289  substantially affected person to request administrative
  290  proceedings under ss. 120.569 and 120.57.
  291         (10) The department and the Board of Trustees of the
  292  Internal Improvement Trust Fund may adopt rules to administer
  293  this section under the joint coastal permit provisions of
  294  chapter 161, the sovereign lands provisions of chapter 253, and
  295  the environmental resource permit provisions of this part.
  296  Adoption of such rules is not subject to any special rulemaking
  297  requirements related to small businesses. Notwithstanding this
  298  grant of rulemaking authority, this section is intended to be
  299  available effective July 1, 2010, and its implementation may not
  300  be delayed pending the adoption of rules.
  301         Section 6. Subsections (37) and (38) of section 403.061,
  302  Florida Statutes, are amended to read:
  303         403.061 Department; powers and duties.—The department shall
  304  have the power and the duty to control and prohibit pollution of
  305  air and water in accordance with the law and rules adopted and
  306  promulgated by it and, for this purpose, to:
  307         (37) Provide Enter into a memorandum of agreement with the
  308  Florida Ports Council which provides a supplemental permitting
  309  process for the issuance of a joint coastal permit pursuant to
  310  s. 161.055 or environmental resource permit pursuant to part IV
  311  of chapter 373, to a port listed in s. 311.09(1), for
  312  maintenance dredging and the management of dredged materials
  313  from maintenance dredging of all navigation channels, port
  314  harbors, turning basins, and harbor berths. Such permit shall be
  315  issued for a period of 5 years and shall be annually extended
  316  for an additional year if the port is in compliance with all
  317  permit conditions at the time of extension. The department may
  318  is authorized to adopt rules to administer implement this
  319  subsection.
  320         (38) Provide Enter into a memorandum of agreement with the
  321  Florida Ports Council which provides a supplemental permitting
  322  process for the issuance of a conceptual joint coastal permit
  323  pursuant to s. 161.055 or environmental resource permit pursuant
  324  to part IV of chapter 373, to a port listed in s. 311.09(1), for
  325  dredging and the management of materials from dredging and for
  326  other related activities necessary for development, including
  327  the expansion of navigation channels, port harbors, turning
  328  basins, harbor berths, and associated facilities. Such permit
  329  shall be issued for a period of up to 15 years. The department
  330  may is authorized to adopt rules to administer implement this
  331  subsection.
  333  The department shall implement such programs in conjunction with
  334  its other powers and duties and shall place special emphasis on
  335  reducing and eliminating contamination that presents a threat to
  336  humans, animals or plants, or to the environment.
  337         Section 7. Subsection (3) of section 403.813, Florida
  338  Statutes, is amended to read:
  339         403.813 Permits issued at district centers; exceptions.—
  340         (3) For maintenance dredging conducted under this section
  341  by the seaports of Jacksonville, Port Canaveral, Fort Pierce,
  342  Palm Beach, Port Everglades, Miami, Port Manatee, St.
  343  Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
  344  West, and Fernandina or by inland navigation districts:
  345         (a) A mixing zone for turbidity is granted within a 100
  346  meter radius from the point of dredging while dredging is
  347  ongoing, except that the mixing zone may does not extend into
  348  areas supporting wetland communities, submerged aquatic
  349  vegetation, or hardbottom communities.
  350         (b) The discharge of the return water from the site used
  351  for the disposal of dredged material shall be allowed only if
  352  such discharge does not result in a violation of water quality
  353  standards in the receiving waters. The However, any such return
  354  water discharge into receiving manmade waters shall be that are
  355  not in Monroe County is granted a mixing zone for turbidity
  356  within a 150-meter radius from the point of discharge during and
  357  immediately after the discharge while dredging is ongoing,
  358  except that the mixing zone may does not extend into areas
  359  supporting wetland communities, submerged aquatic vegetation, or
  360  hardbottom communities outside the manmade waters. As used in
  361  this paragraph, the term “manmade waters” means surface waters
  362  that were wholly excavated from lands other than wetlands and
  363  other surface waters or semienclosed port berths.
  364         (c) The state may not exact a charge for material that this
  365  subsection allows a public port or an inland navigation district
  366  to remove.
  367         (d) The use of flocculants at the site used for disposal of
  368  the dredged material is allowed if the use, including supporting
  369  documentation, is coordinated in advance with the department and
  370  the department has determined that the use is not harmful to
  371  water resources.
  372         (e) This subsection does not prohibit maintenance dredging
  373  of areas where the loss of original design function and
  374  constructed configuration has been caused by a storm event if,
  375  provided that the dredging is performed as soon as practical
  376  after the storm event. Maintenance dredging that commences
  377  within 3 2 years after the storm event is shall be presumed to
  378  satisfy this provision. If more than 3 2 years are needed to
  379  commence the maintenance dredging after the storm event, a
  380  request for a specific time extension to perform the maintenance
  381  dredging must shall be submitted to the department before, prior
  382  to the end of the 3-year 2-year period, accompanied by a
  383  statement, including supporting documentation, demonstrating
  384  that contractors are not available or that additional time is
  385  needed to obtain authorization for the maintenance dredging from
  386  the United States Army Corps of Engineers.
  387         Section 8. This act shall take effect July 1, 2010.

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