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       Florida Senate - 2010               CS for CS for CS for SB 2000
       By the Committees on Transportation and Economic Development
       Appropriations; Environmental Preservation and Conservation; and
       Commerce; and Senator Ring
       606-04860-10                                          20102000c3
    1                        A bill to be entitled                      
    2         An act relating to seaports; creating s. 373.4133,
    3         F.S.; providing legislative findings; providing for
    4         port conceptual permits; providing which ports may
    5         apply for a port conceptual permit; authorizing a
    6         private entity that has adjacent property to apply for
    7         a permit; specifying the length of time for which
    8         permit may be issued; providing that a permit is a
    9         conceptual certification of compliance with state
   10         water quality standards and a conceptual determination
   11         of consistency with the state coastal zone management
   12         program; providing for permit applications and
   13         application requirements; requiring the Department of
   14         Environmental Protection to effect a certain balance
   15         between the benefits of the facility and the
   16         environment; providing that a permit provides certain
   17         assurances with respect to construction permits if
   18         certain requirements are met; providing for advance
   19         mitigation; providing that approval of certain
   20         submerged lands authorization by the Board of Trustees
   21         of the Internal Improvement Trust Fund constitutes the
   22         delegation of authority to the department for final
   23         agency action; providing an exception; providing
   24         procedures for the approval or denial of an
   25         application; providing for administrative challenges;
   26         authorizing the department and the board to issue
   27         certain permits and authorizations before certain
   28         actions are taken under the Endangered Species Act;
   29         authorizing certain alternative stormwater treatment
   30         and design criteria; providing requirements for
   31         proposing such criteria; authorizing the department
   32         and the board to adopt rules; providing for
   33         implementation; amending s. 311.07, F.S.; revising
   34         matching-fund requirements for projects to
   35         rehabilitate wharves, docks, berths, bulkheads, or
   36         similar structures; amending s. 311.09, F.S.;
   37         requiring the Department of Transportation to include
   38         certain projects’ funding allocations in its
   39         legislative budget request and to submit specified
   40         work program amendments within a certain timeframe;
   41         providing for the transfer of unexpended balances
   42         between seaport projects; amending s. 403.061, F.S.;
   43         removing the requirement to enter into a memorandum of
   44         agreement with the Florida Ports Council from the
   45         authority granted to the Department of Environmental
   46         Protection to provide supplemental permitting
   47         processes for the issuance of certain permits;
   48         amending s. 403.813, F.S.; revising requirements
   49         relating to maintenance dredging at seaports;
   50         expanding the parameters for mixing zones and return
   51         water discharges; prohibiting mixing zones from
   52         entering wetland communities; increasing the time
   53         allowance for maintenance dredging following a storm
   54         event; amending ss. 161.055 and 253.002, F.S.;
   55         conforming provisions to changes made by the act;
   56         authorizing seaports to enter into public-private
   57         agreements for port-related public infrastructure
   58         projects; providing effective dates.
   60  Be It Enacted by the Legislature of the State of Florida:
   62         Section 1. Section 373.4133, Florida Statutes, is created
   63  to read:
   64         373.4133 Port conceptual permits.—
   65         (1) The Legislature finds that seaport facilities are
   66  critical infrastructure facilities that significantly support
   67  the economic development of the state. The Legislature further
   68  finds that it is necessary to provide a method of priority
   69  permit review that allows seaports in this state to become
   70  internationally competitive.
   71         (2) Any port listed in s. 311.09(1) may apply to the
   72  department for a port conceptual permit, including any
   73  applicable authorization under chapter 253 to use sovereignty
   74  submerged lands under a joint coastal permit pursuant to s.
   75  161.055 or an environmental resource permit issued pursuant to
   76  this part, for all or a portion of the area within the
   77  geographic boundaries of the port. A private entity that has a
   78  controlling interest in property used for private industrial
   79  marine activities in the immediate vicinity of a port listed in
   80  s. 311.09(1) may also apply for a port conceptual permit under
   81  this section. A port conceptual permit may be issued for up to
   82  20 years and extended one time for an additional 10 years. A
   83  port conceptual permit constitutes the state’s conceptual
   84  certification of compliance with state water quality standards
   85  for purposes of s. 401 of the Clean Water Act and the state’s
   86  conceptual determination that the activities contained in the
   87  port conceptual permit are consistent with the state coastal
   88  zone management program.
   89         (3) A port conceptual permit application must contain
   90  sufficient information to provide reasonable assurance that the
   91  engineering and environmental concepts upon which the designs
   92  are based are likely to meet applicable rule criteria for
   93  issuance of construction permits for subsequent phases of the
   94  project. At a minimum, the application must include the
   95  identification of proposed construction areas and areas where
   96  construction will not occur; the estimated or maximum
   97  anticipated impacts to wetlands and other surface waters and any
   98  proposed mitigation for those impacts; the estimated or maximum
   99  amount of anticipated impervious surface and the nature of the
  100  stormwater treatment system for those areas; and the general
  101  location and types of activities on sovereignty submerged lands.
  102  Except where construction approval is requested as part of a
  103  port conceptual permit application, the application is not
  104  required to include final design specifications and drawings.
  105  The department shall include conditions in the port conceptual
  106  permit specifying the additional information that must be
  107  submitted as part of any request for a subsequent construction
  108  permit or authorization.
  109         (4) In determining whether a port conceptual permit
  110  application is approved in whole, approved with modifications or
  111  conditions, or denied, the department shall effect a reasonable
  112  balance between the potential benefits of the facility and the
  113  impacts upon water quality, fish and wildlife, water resources,
  114  and other natural resources of the state resulting from the
  115  construction and operation of the facility.
  116         (5) A port conceptual permit provides the permitholder with
  117  assurance, during the duration of the permit, that the
  118  engineering and environmental concepts upon which the designs of
  119  the port conceptual permit are based are likely to meet
  120  applicable rule criteria for the issuance of construction
  121  permits for subsequent phases of the project if:
  122         (a) There are no changes in the rules governing the
  123  conditions of issuance of permits for future phases of the
  124  project and the port conceptual permit is not inconsistent with
  125  any total maximum daily load or basin management action plan
  126  adopted for the waterbody into which the system discharges or is
  127  located pursuant to s. 403.067(7) and chapter 62-304, Florida
  128  Administrative Code; and
  129         (b) Applications for proposed future phase activities under
  130  the port conceptual permit are consistent with the design and
  131  conditions of the issued port conceptual permit. Primary areas
  132  for consistency comparisons include the size, location, and
  133  extent of the system; type of activity; percent of
  134  imperviousness; allowable discharge and points of discharge;
  135  location and extent of wetland and other surface water impacts
  136  and, if required, a proposed mitigation plan; control
  137  elevations; extent of stormwater reuse; and detention or
  138  retention volumes. If an application for any subsequent phase
  139  activity is made that is not consistent with the terms and
  140  conditions of the port conceptual permit, the applicant may
  141  request a modification of the port conceptual permit to resolve
  142  the inconsistency or that the application be processed
  143  independent of the permit.
  144         (6) Notwithstanding any other provision of law, a port
  145  conceptual permit or associated construction permit, including
  146  any applicable sovereignty submerged lands authorization, may
  147  authorize advance mitigation for impacts expected as a result of
  148  the activities described in the port conceptual permit. Such
  149  advance mitigation shall be credited to offset the impacts of
  150  such activities when undertaken, to the extent that the advance
  151  mitigation is successful.
  152         (7) Final agency action on a port conceptual sovereignty
  153  submerged lands authorization associated with a port conceptual
  154  permit may not be delegated by the Board of Trustees of the
  155  Internal Improvement Trust Fund. However, approval of such an
  156  authorization by the board constitutes a delegation of authority
  157  to the department to take final agency action on behalf of the
  158  board on any sovereignty submerged lands authorization necessary
  159  to construct facilities included in the port conceptual
  160  sovereignty submerged lands authorization, unless a member of
  161  the board specifically requests that final agency action be
  162  brought before the board. Any delegation of authority to the
  163  department concerning a private project does not exempt the
  164  private project from applicable rules of the board, including
  165  lease and easement fees.
  166         (8) Except as otherwise provided in this section, the
  167  following procedures apply to the approval or denial of an
  168  application for a port conceptual permit or a final permit or
  169  authorization:
  170         (a) Applications for a port conceptual permit, including
  171  any request for the conceptual approval of the use of
  172  sovereignty submerged lands, shall be processed in accordance
  173  with ss. 373.427 and 120.60. However, if the applicant believes
  174  that any request for additional information is not authorized by
  175  law or agency rule, the applicant may request an informal
  176  hearing pursuant to s. 120.57(2) before the Secretary of
  177  Environmental Protection to determine whether the application is
  178  complete.
  179         (b) Upon issuance of the department’s notice of intent to
  180  issue or deny a port conceptual permit, the applicant shall
  181  publish a one-time notice of such intent, prepared by the
  182  department, in the newspaper with the largest general
  183  circulation in the county or counties where the port is located.
  184         (c) Final agency action on a port conceptual permit is
  185  subject to challenge pursuant to ss. 120.569 and 120.57.
  186  However, final agency action to authorize subsequent
  187  construction of facilities contained in a port conceptual permit
  188  may only be challenged by a third party for consistency with the
  189  port conceptual permit.
  190         (d) A person who will be substantially affected by a final
  191  agency action described in paragraph (c) must initiate
  192  administrative proceedings pursuant to ss. 120.569 and 120.57
  193  within 21 days after the publication of the notice of the
  194  proposed action. If administrative proceedings are requested,
  195  the proceedings are subject to the summary hearing provisions of
  196  s. 120.574. However, if the decision of the administrative law
  197  judge will be a recommended order rather than a final order, a
  198  summary proceeding must be conducted within 90 days after a
  199  party files a motion for summary hearing, regardless of whether
  200  the parties agree to the summary proceeding.
  201         (9) Notwithstanding any other provision of law, the
  202  department and the board may issue permits and authorizations
  203  pursuant to this section in advance of the issuance of any take
  204  authorization as provided for in the Endangered Species Act and
  205  its implementing regulations if the permits and authorizations
  206  include a condition requiring that authorized activities may not
  207  commence until such take authorization is issued and must be
  208  consistent with such authorization. The department shall
  209  unilaterally modify any permit or authorization issued pursuant
  210  to this section to make the permit or authorization consistent
  211  with any subsequently issued incidental take authorization. Such
  212  unilateral modification does not create a point of entry for any
  213  substantially affected person to request administrative
  214  proceedings under ss. 120.569 and 120.57.
  215         (10) In lieu of meeting the generally applicable stormwater
  216  design standards in rules adopted under this part, which create
  217  a presumption that stormwater discharged from the system will
  218  meet the applicable state water quality standards in the
  219  receiving waters, any port listed in s. 311.09(1) may propose
  220  alternative stormwater treatment and design criteria for the
  221  construction, operation, and maintenance of stormwater
  222  management systems serving overwater piers. The proposal shall
  223  include structural components or best management practices to
  224  address the stormwater discharge from the pier, including
  225  consideration of activities conducted on the pier, as are
  226  necessary to provide reasonable assurance that stormwater
  227  discharged from the system will meet the applicable state water
  228  quality standards in the receiving waters.
  229         (11) The department and the board may adopt rules to
  230  implement the provisions of this section under the joint coastal
  231  permit provisions of chapter 161, the sovereignty submerged
  232  lands provisions of chapter 253, and the environmental resource
  233  permit provisions of this part. The adoption of such rules is
  234  not subject to any special rulemaking requirements related to
  235  small business.
  236         (12) This section shall take effect July 1, 2010, and its
  237  implementation may not be delayed pending the adoption of rules.
  238         Section 2. Paragraph (a) of subsection (3) of section
  239  311.07, Florida Statutes, is amended to read:
  240         311.07 Florida seaport transportation and economic
  241  development funding.—
  242         (3)(a) Program funds shall be used to fund approved
  243  projects on a 50-50 matching basis with any of the deepwater
  244  ports, as listed in s. 403.021(9)(b), which is governed by a
  245  public body or any other deepwater port which is governed by a
  246  public body and which complies with the water quality provisions
  247  of s. 403.061, the comprehensive master plan requirements of s.
  248  163.3178(2)(k), and the local financial management and reporting
  249  provisions of part III of chapter 218. However, program funds
  250  used to fund projects that involve the rehabilitation of
  251  wharves, docks, berths, bulkheads, or similar structures shall
  252  require a 25 percent match of funds. Program funds also may be
  253  used by the Seaport Transportation and Economic Development
  254  Council to develop with the Florida Trade Data Center such trade
  255  data information products which will assist Florida’s seaports
  256  and international trade.
  257         Section 3. Subsection (10) of section 311.09, Florida
  258  Statutes, is amended to read:
  259         311.09 Florida Seaport Transportation and Economic
  260  Development Council.—
  261         (10) The Department of Transportation shall include in its
  262  annual legislative budget request a Florida Seaport
  263  Transportation and Economic Development grant program for
  264  expenditure of funds of not less than $8 million per year. Such
  265  budget shall include funding for projects approved by the
  266  council which have been determined by each agency to be
  267  consistent and which have been determined by the Office of
  268  Tourism, Trade, and Economic Development to be economically
  269  beneficial. The department shall include the specific approved
  270  seaport projects to be funded under this section during the
  271  ensuing fiscal year in the tentative work program developed
  272  pursuant to s. 339.135(4). The total amount of funding to be
  273  allocated to seaport projects under s. 311.07 during the
  274  successive 4 fiscal years shall also be included in the
  275  tentative work program developed pursuant to s. 339.135(4). The
  276  council may submit to the department a list of approved projects
  277  that could be made production-ready within the next 2 years. The
  278  list shall be submitted by the department as part of the needs
  279  and project list prepared pursuant to s. 339.135(2)(b) s.
  280  339.135. However, the department shall, upon written request of
  281  the Florida Seaport Transportation and Economic Development
  282  Council, submit work program amendments pursuant to s.
  283  339.135(7) to the Governor within 10 days after the later of the
  284  date the request is received by the department or the effective
  285  date of the amendment, termination, or closure of the applicable
  286  funding agreement between the department and the affected
  287  seaport, as required to release the funds from the existing
  288  commitment. Notwithstanding s. 339.135(7)(c), any work program
  289  amendment to transfer prior year funds from one approved seaport
  290  project to another seaport project is subject to the procedures
  291  in s. 339.135(7)(d)2. Notwithstanding any provision of law to
  292  the contrary, the department may transfer unexpended balances
  293  between the seaport projects as identified in the approved work
  294  program amendments.
  295         Section 4. Subsections (37) and (38) of section 403.061,
  296  Florida Statutes, are amended to read:
  297         403.061 Department; powers and duties.—The department shall
  298  have the power and the duty to control and prohibit pollution of
  299  air and water in accordance with the law and rules adopted and
  300  promulgated by it and, for this purpose, to:
  301         (37) Provide Enter into a memorandum of agreement with the
  302  Florida Ports Council which provides a supplemental permitting
  303  process for the issuance of a joint coastal permit pursuant to
  304  s. 161.055 or environmental resource permit pursuant to part IV
  305  of chapter 373, to a port listed in s. 311.09(1), for
  306  maintenance dredging and the management of dredged materials
  307  from maintenance dredging of all navigation channels, port
  308  harbors, turning basins, and harbor berths. Such permit shall be
  309  issued for a period of 5 years and shall be annually extended
  310  for an additional year if the port is in compliance with all
  311  permit conditions at the time of extension. The department may
  312  is authorized to adopt rules to administer implement this
  313  subsection.
  314         (38) Provide Enter into a memorandum of agreement with the
  315  Florida Ports Council which provides a supplemental permitting
  316  process for the issuance of a conceptual joint coastal permit
  317  pursuant to s. 161.055 or environmental resource permit pursuant
  318  to part IV of chapter 373, to a port listed in s. 311.09(1), for
  319  dredging and the management of materials from dredging and for
  320  other related activities necessary for development, including
  321  the expansion of navigation channels, port harbors, turning
  322  basins, harbor berths, and associated facilities. Such permit
  323  shall be issued for a period of up to 15 years. The department
  324  may is authorized to adopt rules to administer implement this
  325  subsection.
  327  The department shall implement such programs in conjunction with
  328  its other powers and duties and shall place special emphasis on
  329  reducing and eliminating contamination that presents a threat to
  330  humans, animals or plants, or to the environment.
  331         Section 5. Subsection (3) of section 403.813, Florida
  332  Statutes, is amended to read:
  333         403.813 Permits issued at district centers; exceptions.—
  334         (3) For maintenance dredging conducted under this section
  335  by the seaports of Jacksonville, Port Canaveral, Fort Pierce,
  336  Palm Beach, Port Everglades, Miami, Port Manatee, St.
  337  Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
  338  West, and Fernandina or by inland navigation districts:
  339         (a) A mixing zone for turbidity is granted within a 150
  340  meter 100-meter radius from the point of dredging while dredging
  341  is ongoing, except that the mixing zone may does not extend into
  342  areas supporting wetland communities, submerged aquatic
  343  vegetation, or hardbottom communities.
  344         (b) The discharge of the return water from the site used
  345  for the disposal of dredged material shall be allowed only if
  346  such discharge does not result in a violation of water quality
  347  standards in the receiving waters. The However, any such return
  348  water discharge into receiving manmade waters shall be that are
  349  not in Monroe County is granted a mixing zone for turbidity
  350  within a 150-meter radius from the point of discharge during and
  351  immediately after the discharge while dredging is ongoing,
  352  except that the mixing zone may does not extend into areas
  353  supporting wetland communities, submerged aquatic vegetation, or
  354  hardbottom communities outside the manmade waters. As used in
  355  this paragraph, the term “manmade waters” means surface waters
  356  that were wholly excavated from lands other than wetlands and
  357  other surface waters or semienclosed port berths.
  358         (c) The state may not exact a charge for material that this
  359  subsection allows a public port or an inland navigation district
  360  to remove.
  361         (d) The use of flocculants at the site used for disposal of
  362  the dredged material is allowed if the use, including supporting
  363  documentation, is coordinated in advance with the department and
  364  the department has determined that the use is not harmful to
  365  water resources.
  366         (e) This subsection does not prohibit maintenance dredging
  367  of areas where the loss of original design function and
  368  constructed configuration has been caused by a storm event if,
  369  provided that the dredging is performed as soon as practical
  370  after the storm event. Maintenance dredging that commences
  371  within 3 2 years after the storm event is shall be presumed to
  372  satisfy this provision. If more than 3 2 years are needed to
  373  commence the maintenance dredging after the storm event, a
  374  request for a specific time extension to perform the maintenance
  375  dredging shall be submitted to the department, before prior to
  376  the end of the 3-year 2-year period, accompanied by a statement,
  377  including supporting documentation, demonstrating that
  378  contractors are not available or that additional time is needed
  379  to obtain authorization for the maintenance dredging from the
  380  United States Army Corps of Engineers.
  381         Section 6. Subsection (1) of section 161.055, Florida
  382  Statutes, is amended to read:
  383         161.055 Concurrent processing of permits.—
  384         (1) If When an activity for which a permit is required
  385  under this chapter also requires a permit, authorization, or
  386  approval described in paragraph (2)(b), including a port
  387  conceptual permit pursuant to s. 373.4133, the department may,
  388  by rule, provide that the activity may be undertaken only upon
  389  receipt of a single permit from the department called a “joint
  390  coastal permit,” as provided in this section.
  391         Section 7. Subsection (2) of section 253.002, Florida
  392  Statutes, is amended to read:
  393         253.002 Department of Environmental Protection, water
  394  management districts, Fish and Wildlife Conservation Commission,
  395  and Department of Agriculture and Consumer Services; duties with
  396  respect to state lands.—
  397         (2) Delegations to the department, or a water management
  398  district, or the Department of Agriculture and Consumer Services
  399  of authority to take final agency action on applications for
  400  authorization to use submerged lands owned by the board of
  401  trustees, without any action on behalf of the board of trustees,
  402  shall be by rule if delegations related to conceptual permits
  403  are in accordance with s. 373.4133. Until rules adopted pursuant
  404  to this subsection become effective, existing delegations by the
  405  board of trustees shall remain in full force and effect.
  406  However, the board of trustees is not limited or prohibited from
  407  amending these delegations. The board of trustees shall adopt by
  408  rule any delegations of its authority to take final agency
  409  action without action by the board of trustees on applications
  410  for authorization to use board of trustees-owned submerged
  411  lands. Any final agency action, without action by the board of
  412  trustees, taken by the department, or a water management
  413  district, or the Department of Agriculture and Consumer Services
  414  on applications to use board of trustees-owned submerged lands
  415  are shall be subject to the provisions of s. 373.4275.
  416  Notwithstanding any other provision of this subsection, the
  417  board of trustees, the Department of Legal Affairs, and the
  418  department retain the concurrent authority to assert or defend
  419  title to submerged lands owned by the board of trustees.
  420         Section 8. A seaport listed in s. 311.09(1), Florida
  421  Statutes, may receive or solicit proposals from and enter into a
  422  public-private infrastructure project agreement with a private
  423  entity, or a consortium of private entities, to build, operate,
  424  manage, maintain, or finance a port-related public
  425  infrastructure project.
  426         Section 9. Except as otherwise expressly provided in this
  427  act, this act shall take effect July 1, 2010.

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