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       Florida Senate - 2010                             CS for SB 2000
       By the Committee on Commerce; and Senator Ring
       577-02767-10                                          20102000c1
    1                        A bill to be entitled                      
    2         An act relating to seaports; creating s. 311.06, F.S.;
    3         providing legislative intent; authorizing certain
    4         ports to submit a port master plan to the Department
    5         of Environmental Protection entitling a port to the
    6         summary issuance of certain final permits; defining
    7         terms; specifying the required contents of a port
    8         master plan; specifying methods by which an applicant
    9         port may demonstrate compliance with the regulatory
   10         requirements of the Department of Environmental
   11         Protection; specifying interests that the Department
   12         of Environmental Protection must balance in approving
   13         or denying a port master plan authorization;
   14         specifying the requirements for a final permit or
   15         authorization for an activity in a port master plan
   16         authorization; specifying procedures for the approval
   17         or denial of a port master plan or final permit or
   18         authorization; amending s. 311.09, F.S.; requiring the
   19         Florida Seaport Transportation and Economic
   20         Development Council to submit certain information to
   21         the Department of Transportation for inclusion in its
   22         annual legislative budget request; requiring the
   23         council to allocate funds to seaports for specified
   24         projects contingent upon appropriation; amending s.
   25         403.061, F.S.; removing the requirement to enter into
   26         memoranda of agreement with the Florida Ports Council
   27         from the authority granted to the Department of
   28         Environmental Protection to provide supplemental
   29         permitting processes for the issuance of certain
   30         permits; providing an effective date.
   32  Be It Enacted by the Legislature of the State of Florida:
   34         Section 1. Section 311.106, Florida Statutes, is created to
   35  read:
   36         311.106Port master plan authorization.—
   37         (1) The Legislature finds that seaport facilities are
   38  critical infrastructure facilities that significantly support
   39  the economic development of this state. The Legislature further
   40  finds that it is a necessity to provide a method of priority
   41  permit review which allows seaports in this state to become
   42  internationally competitive.
   43         (2) For the purposes of this section, the term:
   44         (a) “Department” means the Department of Environmental
   45  Protection.
   46         (b) “Port master plan authorization” means an entitlement
   47  of a port to the summary issuance of a final permit or
   48  authorization to conduct activities or construct facilities or
   49  developments described in the port master plan authorization.
   50  The authorization is valid for as long as the authorized
   51  activities occur or the facilities or developments exist. A port
   52  master plan authorization is final, but does not authorize any
   53  development to occur. A port master plan authorization
   54  constitutes compliance with the state’s water quality
   55  certification for purposes of s. 401 of the Clean Water Act, and
   56  the state’s determination that the activities contained in the
   57  authorized port master plan are consistent with this state’s
   58  federally approved coastal zone management program.
   59         (3)A port authority having jurisdiction over any port
   60  listed in s. 403.021(9)(b), or any other person or legal entity
   61  having a controlling interest in property that is or will be
   62  used predominantly for purposes directly related to deepwater
   63  commercial navigation at any port listed in s. 403.021(9)(b),
   64  may submit by application a port master plan to the department
   65  in order to receive a port master plan authorization. A port
   66  master plan may, but need not be, a port master plan that has
   67  been incorporated into the appropriate local government
   68  comprehensive plan pursuant to s. 163.3178(2)(k).
   69         (a) The port master plan must include projections of costs,
   70  revenue, and job creation for any proposed development.
   71         (b) When the port master plan is submitted to the
   72  department, the plan must include all available information,
   73  except for final design specifications and drawings, required by
   74  other applicable laws for the department to issue the permit or
   75  authorization requested.
   76         (c) When the port master plan is submitted to the
   77  department, the plan must include all available information
   78  necessary for the department to determine whether the plan is
   79  consistent with this state’s federally approved coastal zone
   80  management program.
   81         (4) The information required by paragraphs (3)(a)-(c) must
   82  include:
   83         (a) The size of proposed impervious surfaces;
   84         (b) A description of the design approach for storm water
   85  treatment facilities;
   86         (c) An explanation of how the proposed future activities
   87  will be constructed and operated so as to not cause or
   88  contribute to any violations of any applicable water quality
   89  standards;
   90         (d) An explanation of how, by balancing the factors in s.
   91  373.414(1)(a), the proposed future activity is:
   92         1. Not contrary to the public interest; or
   93         2. Clearly in the public interest if the proposed future
   94  activity is located within an Outstanding Florida Water;
   95         (e) The overall size of the future facilities;
   96         (f) The acreage and type of jurisdictional wetlands to be
   97  impacted by the proposed future facilities;
   98         (g) The uniform mitigation assessment method scores for all
   99  wetlands to be disturbed which are under the jurisdiction of the
  100  United States Army Corps of Engineers;
  101         (h) A qualitative mitigation approach to offset any loss of
  102  wetland function resulting from the construction of the future
  103  facilities;
  104         (i) To the extent required by the department’s substantive
  105  standards, a qualitative characterization of the proposed
  106  approach to treatment methods for a discharge of wastewater from
  107  a point source or emissions of pollutants from a stationary
  108  source;
  109         (j) The size, location, and description of any waters
  110  proposed to be filled, including qualitative benthic surveys,
  111  the source or type of fill, and methods to be used to control
  112  turbidity;
  113         (k) The size, location, and descriptions of any areas to be
  114  dredged, including qualitative benthic surveys, dredging methods
  115  to be used, methods to be used to control turbidity, and
  116  location and a description of the spoil disposal site and return
  117  water discharge;
  118         (l) A qualitative characterization of, a description of the
  119  management of, and a description of methods available for the
  120  disposal of solid wastes expected to be generated at the
  121  proposed future facilities;
  122         (m) The potential adverse effect, if any, of the proposed
  123  future facilities on animal species listed on the federal list
  124  of endangered and threatened wildlife and plants and a
  125  description of management or mitigation techniques to minimize
  126  or eliminate any such effects;
  127         (n) A description of why and how the proposed future
  128  activities will not result in any unacceptable secondary or
  129  cumulative impacts;
  130         (o) An explanation of how the proposed future activity will
  131  comply with the standards contained in s. 161.053 to the extent
  132  applicable; and
  133         (p) An explanation of the form of an authorization to use
  134  sovereign submerged lands which will be required for the
  135  proposed facilities and, to the extent required by chapter 253,
  136  an explanation of how the future activity qualifies for the
  137  authorizations.
  138         (5) An applicant for a port master plan authorization must
  139  demonstrate compliance with the department’s regulatory
  140  requirements by:
  141         (a) Including all information required to demonstrate
  142  compliance with the department’s regulatory requirements as part
  143  of the port master plan authorization application before the
  144  approval of the port master plan.
  145         (b) Submitting all of the information required to
  146  demonstrate compliance with the department’s regulatory
  147  requirements for a port master plan authorization as a part of a
  148  request for a final permit or authorization and before any
  149  construction activities. If an applicant chooses this method of
  150  demonstrating compliance with the department’s regulatory
  151  requirements, the department must include conditions in the port
  152  master plan authorization specifying the additional information
  153  that must be submitted as part of a request for a final permit
  154  or authorization.
  155         (6) In determining whether to issue a port master plan
  156  authorization, the department shall review the port master plan
  157  submitted by a port for compliance with the standards of a joint
  158  coastal permit pursuant to s. 161.055, an environmental resource
  159  permit pursuant to part IV of chapter 373, a sovereign submerged
  160  lands authorization pursuant to chapter 253, or any combination
  161  of these permits and authorizations, as applicable. A port
  162  master plan submitted to the department for review must specify
  163  which of these permits or authorizations apply to the port
  164  master plan.
  165         (7)(a) In determining whether a port master plan
  166  authorization shall be approved in whole, approved with
  167  modifications or conditions, or denied, the department shall
  168  effect a reasonable balance between:
  169         1. The need for the facility and its potential benefits;
  170  and
  171         2. The impacts upon air and water quality, fish and
  172  wildlife, water resources, and other natural resources of the
  173  state resulting from the construction and operation of the
  174  facility.
  175         (b) In effecting such a balance, the department must
  176  consider whether, and the extent to which, the location,
  177  construction, and operation of the proposed future port
  178  facilities will, after any final permits or authorizations are
  179  issued:
  180         1. Provide operational safeguards that are technically
  181  sufficient for the public welfare and protection;
  182         2. Meet the seaport infrastructure needs of the state in an
  183  orderly, reliable, and timely fashion;
  184         3. Minimize, through the use of reasonable and available
  185  methods, the adverse effects on human health, the environment,
  186  and wildlife, including aquatic life;
  187         4. Serve and protect the broad interests of the public; and
  188         5. Comply with the department’s regulatory requirements
  189  established by statute or rule, excluding any provisions
  190  prescribing forms, fees, procedures, or time limits for the
  191  review or processing of information submitted to demonstrate
  192  compliance with such regulatory requirements.
  193         (8) After a port master plan authorization is issued, a
  194  permit or authorization for activities approved in the port
  195  master plan authorization may be requested. The request must
  196  provide final construction plans and details about the
  197  activities actually proposed.
  198         (9) Except as otherwise provided in this subsection, the
  199  following procedures apply to the approval or denial of an
  200  application for a port master plan authorization or a final
  201  permit or authorization:
  202         (a) The department shall issue or deny an application for a
  203  port master plan authorization or final permit or authorization
  204  pursuant to s. 120.60. However, if the department determines
  205  that an application or request is incomplete, it may request
  206  additional information only twice, except as provided in this
  207  paragraph. An application or request is deemed complete upon the
  208  earlier of: the receipt of all the information necessary to
  209  process the application or the request; or the receipt of a
  210  response to the department’s second request for additional
  211  information. The department may request additional information
  212  more than two times only if the department first demonstrates by
  213  clear and convincing evidence to an administrative law judge,
  214  appointed by the Director of the Division of Administrative
  215  Hearings, that the applicant has failed to fully respond to its
  216  second request for additional information. Unless waived by the
  217  applicant, an administrative law judge appointed to make such a
  218  determination shall issue a final order determining whether the
  219  application for a port master plan authorization is complete
  220  within 45 days after the department requests such a
  221  determination.
  222         (b) Upon the issuance of the department’s notice of intent
  223  to issue or deny a port master plan authorization, the applicant
  224  shall publish a notice of such intent, prepared by the
  225  department, one time only in the largest newspaper of general
  226  circulation in the county or counties where the port is located.
  227         (c) A person who will be substantially affected by the
  228  proposed action must initiate administrative proceedings,
  229  pursuant to ss. 120.569 and 120.57, within 14 days after the
  230  publication of the notice of the proposed action.
  231         (d) If administrative proceedings are requested, the
  232  approval or denial of any port master plan authorization is
  233  subject to the summary hearing provisions of s. 120.574.
  234  However, if the decision of an administrative law judge will be
  235  a recommended order, rather than a final order, a summary
  236  proceeding must be conducted within 90 days after a party files
  237  a motion for a summary hearing, regardless of whether the
  238  parties agree to the summary proceeding.
  239         (e) Upon request, the department shall issue a final permit
  240  or authorization if the proposed activities and facilities are
  241  consistent with the activities and facilities described in an
  242  approved port master plan authorization and upon the receipt of
  243  all information required by any conditions in the approved port
  244  master plan authorization. The purpose of a request for final
  245  permit or authorization is solely for the department to monitor
  246  compliance with the approved port master plan authorization.
  247  Consequently, a final permit or authorization issued following
  248  the approval of a port master plan authorization does not
  249  constitute agency action as defined in s. 120.52 and is not
  250  subject to ss. 120.569 and 120.57, and paragraphs (b)-(d) do not
  251  apply to a request for final permit or authorization.
  252         (f) If the activities or facilities proposed in a request
  253  for a final permit or authorization are inconsistent with the
  254  activities and facilities described in an approved port master
  255  plan authorization, the procedures to process an application
  256  prescribed by other law apply, unless the inconsistency is
  257  deemed by the department to be de minimis.
  258         Section 2. Subsection (10) of section 311.09, Florida
  259  Statutes, is amended to read:
  260         311.09 Florida Seaport Transportation and Economic
  261  Development Council.—
  262         (10) The Department of Transportation shall include in its
  263  annual legislative budget request a Florida Seaport
  264  Transportation and Economic Development grant program for
  265  expenditure of funds of not less than $8 million per year. Such
  266  budget shall include funding for projects approved by the
  267  council which have been determined by each agency to be
  268  consistent and which have been determined by the Office of
  269  Tourism, Trade, and Economic Development to be economically
  270  beneficial. The council shall may submit to the department a
  271  list of approved projects that could be made production-ready
  272  within the next 5 2 years following the end of the current
  273  fiscal year. The list shall be submitted by the department as
  274  part of its annual legislative budget request for seaport
  275  economic development projects submitted the needs and project
  276  list prepared pursuant to s. 339.135(2) 339.135. However, the
  277  department may not require the identification or funding of a
  278  specific project as part of its legislative budget request.
  279  Contingent upon legislative appropriation each year, the council
  280  shall allocate funds to seaports for approved projects that
  281  improve the movement and intermodal transportation of cargo or
  282  passengers in commerce and trade and that support the interests,
  283  purposes, and requirements of ports located in this state.
  284         Section 3. Subsections (37) and (38) of section 403.061,
  285  Florida Statutes, are amended to read:
  286         403.061 Department; powers and duties.—The department shall
  287  have the power and the duty to control and prohibit pollution of
  288  air and water in accordance with the law and rules adopted and
  289  promulgated by it and, for this purpose, to:
  290         (37) Provide Enter into a memorandum of agreement with the
  291  Florida Ports Council which provides a supplemental permitting
  292  process for the issuance of a joint coastal permit pursuant to
  293  s. 161.055 or environmental resource permit pursuant to part IV
  294  of chapter 373, to a port listed in s. 311.09(1), for
  295  maintenance dredging and the management of dredged materials
  296  from maintenance dredging of all navigation channels, port
  297  harbors, turning basins, and harbor berths. Such permit shall be
  298  issued for a period of 5 years and shall be annually extended
  299  for an additional year if the port is in compliance with all
  300  permit conditions at the time of extension. The department is
  301  authorized to adopt rules to implement this subsection.
  302         (38) Provide Enter into a memorandum of agreement with the
  303  Florida Ports Council which provides a supplemental permitting
  304  process for the issuance of a conceptual joint coastal permit
  305  pursuant to s. 161.055 or environmental resource permit pursuant
  306  to part IV of chapter 373, to a port listed in s. 311.09(1), for
  307  dredging and the management of materials from dredging and for
  308  other related activities necessary for development, including
  309  the expansion of navigation channels, port harbors, turning
  310  basins, harbor berths, and associated facilities. Such permit
  311  shall be issued for a period of up to 15 years. The department
  312  is authorized to adopt rules to implement this subsection.
  313  The department shall implement such programs in conjunction with
  314  its other powers and duties and shall place special emphasis on
  315  reducing and eliminating contamination that presents a threat to
  316  humans, animals or plants, or to the environment.
  317         Section 4. This act shall take effect July 1, 2010.

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