Section 380.23, Florida Statutes 2007
380.23 Federal consistency.--
(1) When a federally licensed or permitted activity subject to federal consistency review requires a state license, the issuance or renewal of a state license shall automatically constitute the state's concurrence that the licensed activity or use, as licensed, is consistent with the federally approved program. When a federally licensed or permitted activity subject to federal consistency review requires a state license, the denial of a state license shall automatically constitute the state's finding that the proposed activity or use is not consistent with the state's federally approved program, unless the United States Secretary of Commerce determines that such activity or use is in the national interest as provided in the Coastal Zone Management Act.
(2)(a) Where federal licenses, permits, activities, and projects listed in subsection (3) are subject to federal consistency review and are seaward of the jurisdiction of the state, or there is no state agency with sole jurisdiction, the department shall be responsible for the consistency review and determination; however, the department shall not make a determination that the license, permit, activity, or project is consistent if any other state agency with significant analogous responsibility makes a determination of inconsistency. All decisions and determinations under this subsection shall be appealable to the Governor and Cabinet.
(b) However, effective October 1, 1992, if a finding or recommendation of inconsistency has been made by a state agency with regard to federal activities and projects listed under paragraphs (3)(a) and (b) and the inconsistency cannot be resolved by the department, the department shall refer such finding or recommendation to the Governor for final determination. The Governor shall review the comments, findings, or recommendations of all participating agencies and shall affirm the finding or recommendation of inconsistency unless the Governor determines that the federal activity or project is consistent with the enforceable social, economic, and environmental policies of the coastal management program. Any permitting, licensing, or proprietary authority of an agency shall not be preempted or otherwise limited by any provision of this paragraph. Consistency determinations made pursuant to this paragraph shall not be appealable to the Governor or Cabinet.
(3) Consistency review shall be limited to review of the following activities, uses, and projects to ensure that such activities, uses, and projects are conducted in accordance with the state's coastal management program:
(a) Federal development projects and activities of federal agencies which significantly affect coastal waters and the adjacent shorelands of the state.
(b) Federal assistance projects that significantly affect coastal waters and the adjacent shorelands of the state and that are reviewed as part of the review process developed pursuant to Presidential Executive Order 12372.
(c) Federally licensed or permitted activities affecting land or water uses when such activities are in or seaward of the jurisdiction of local governments required to develop a coastal zone protection element as provided in s. 380.24 and when such activities involve:
1. Permits and licenses required under the Rivers and Harbors Act of 1899, 33 U.S.C. ss. 401 et seq., as amended.
2. Permits and licenses required under the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. ss. 1401-1445 and 16 U.S.C. ss. 1431-1445, as amended.
3. Permits and licenses required under the Federal Water Pollution Control Act of 1972, 33 U.S.C. ss. 1251 et seq., as amended, unless such permitting activities have been delegated to the state pursuant to said act.
4. Permits and licenses relating to the transportation of hazardous substance materials or transportation and dumping which are issued pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1501 et seq., as amended, or 33 U.S.C. s. 1321, as amended.
5. Permits and licenses required under 15 U.S.C. ss. 717-717w, 3301-3432, 42 U.S.C. ss. 7101-7352, and 43 U.S.C. ss. 1331-1356 for construction and operation of interstate gas pipelines and storage facilities.
6. Permits and licenses required for the siting and construction of any new electrical power plants as defined in s. 403.503(13), as amended, and the licensing and relicensing of hydroelectric power plants under the Federal Power Act, 16 U.S.C. ss. 791a et seq., as amended.
7. Permits and licenses required under the Mining Law of 1872, 30 U.S.C. ss. 21 et seq., as amended; the Mineral Lands Leasing Act, 30 U.S.C. ss. 181 et seq., as amended; the Mineral Leasing Act for Acquired Lands, 30 U.S.C. ss. 351 et seq., as amended; the Federal Land Policy and Management Act, 43 U.S.C. ss. 1701 et seq., as amended; the Mining in the Parks Act, 16 U.S.C. ss. 1901 et seq., as amended; and the OCS Lands Act, 43 U.S.C. ss. 1331 et seq., as amended, for drilling, mining, pipelines, geological and geophysical activities, or rights-of-way on public lands and permits and licenses required under the Indian Mineral Development Act, 25 U.S.C. ss. 2101 et seq., as amended.
8. Permits and licenses for areas leased under the OCS Lands Act, 43 U.S.C. ss. 1331 et seq., as amended, including leases and approvals of exploration, development, and production plans.
9. Permits and licenses required under the Deepwater Port Act of 1974, 33 U.S.C. ss. 1501 et seq., as amended.
10. Permits required for the taking of marine mammals under the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. s. 1374.
(d) Federal activities within the territorial limits of neighboring states when the Governor and the department determine that significant individual or cumulative impact to the land or water resources of the state would result from the activities.
(4) The department may adopt rules establishing procedures for conducting consistency reviews of activities, uses, and projects for which consistency review is required pursuant to subsections (1), (2), and (3). Such rules shall include procedures for the expeditious handling of emergency repairs to existing facilities for which consistency review is required. The department may also adopt rules prescribing the data and information needed for the review of consistency certifications and determinations. When an environmental impact statement or environmental assessment required by the National Environmental Policy Act has been prepared for a specific activity, use, or project subject to federal consistency review under this section, the environmental impact statement or environmental assessment shall be data and information necessary for the state's consistency review of that federal activity, use, or project under this section.
(5) In any coastal management program submitted to the appropriate federal agency for its approval pursuant to this act, the department shall specifically waive its right to determine the consistency with the coastal management program of all federally licensed or permitted activities not specifically listed in subsection (3).
(6) Agencies authorized to review and comment on the consistency of federal activities subject to state review under the Florida Coastal Management Program are those agencies charged with the implementation of the statutes and rules included in the federally approved program. Each agency shall be afforded an opportunity to provide the department or the state licensing agency with its comments and determination regarding the consistency of the federal activity with the statutes and rules included in the federally approved program implemented by the agency. An agency that submits a determination of inconsistency to the department or a state licensing agency shall be an indispensable party to any administrative or judicial proceeding in which such determination is an issue, shall be responsible for defending its determination in such proceedings, and shall be liable for any damages, costs, and attorney's fees awarded in the action as a consequence of such determination.
(7) Agencies shall not review for federal consistency purposes an application for a federally licensed or permitted activity if the activity is vested, exempted, or excepted under its own regulatory authority.
(8) The department shall review the items listed in subsection (3) to determine if in certain circumstances such items would constitute minor permit activities. If the department determines that the list contains minor permit activities, it may by rule establish a program of general concurrence pursuant to federal regulation which shall allow similar minor activities, in the same geographic area, to proceed without prior department review for federal consistency.
History.--s. 8, ch. 78-287; s. 1, ch. 90-220; s. 53, ch. 90-331; s. 5, ch. 92-276; s. 61, ch. 93-206; s. 29, ch. 98-176; s. 5, ch. 2002-275; s. 5, ch. 2005-166; s. 74, ch. 2007-5.