Bill Text: FL H0963 | 2010 | Regular Session | Engrossed

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Bill Title: Seaports [WPSC]

Spectrum: Partisan Bill (Republican 22-1)

Status: (Passed) 2010-06-03 - Approved by Governor; Chapter No. 2010-201 [H0963 Detail]

Download: Florida-2010-H0963-Engrossed.html

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CS/CS/CS/HB 963

1	A bill to be entitled
2	An act relating to seaports; creating s. 373.4133, F.S.;
3	providing legislative findings; providing for port
4	conceptual permits; providing which ports may apply for a
5	port conceptual permit; authorizing a private entity that
6	has adjacent property to apply for a permit; specifying
7	the length of time for which permit may be issued;
8	providing that a permit is a conceptual certification of
9	compliance with state water quality standards and a
10	conceptual determination of consistency with the state
11	coastal zone management program; providing for permit
12	applications and application requirements; requiring the
13	Department of Environmental Protection to effect a certain
14	balance between the benefits of the facility and the
15	environment; providing that a permit provides certain
16	assurances with respect to construction permits if certain
17	requirements are met; providing for advance mitigation;
18	providing that approval of certain submerged lands
19	authorization by the Board of Trustees of the Internal
20	Improvement Trust Fund constitutes the delegation of
21	authority to the department for final agency action;
22	providing an exception; providing procedures for the
23	approval or denial of an application; providing for
24	administrative challenges; authorizing the department and
25	the board to issue certain permits and authorizations
26	before certain actions are taken under the Endangered
27	Species Act; authorizing certain alternative stormwater
28	treatment and design criteria; providing requirements for
29	proposing such criteria; authorizing the department and
30	the board to adopt rules; providing for implementation;
31	amending s. 311.07, F.S.; revising matching-fund
32	requirements for projects to rehabilitate wharves, docks,
33	berths, bulkheads, or similar structures; amending s.
34	311.09, F.S.; requiring the Department of Transportation
35	to include certain projects' funding allocations in its
36	legislative budget request and to submit specified work
37	program amendments within a certain timeframe; providing
38	for the transfer of unexpended budget between seaport
39	projects; amending s. 403.061, F.S.; removing the
40	requirement to enter into a memorandum of agreement with
41	the Florida Ports Council from the authority granted to
42	the Department of Environmental Protection to provide
43	supplemental permitting processes for the issuance of
44	certain permits; amending s. 403.813, F.S.; revising
45	requirements relating to maintenance dredging at seaports;
46	expanding the parameters for mixing zones and return-water
47	discharges; prohibiting mixing zones from entering wetland
48	communities; increasing the time allowance for maintenance
49	dredging following a storm event; amending ss. 161.055 and
50	253.002, F.S.; conforming provisions to changes made by
51	the act; authorizing seaports to enter into public-private
52	agreements for port-related public infrastructure
53	projects; providing effective dates.
54
55	Be It Enacted by the Legislature of the State of Florida:
56
57	Section 1. Section 373.4133, Florida Statutes, is created
58	to read:
59	373.4133 Port conceptual permits.-
60	(1) The Legislature finds that seaport facilities are
61	critical infrastructure facilities that significantly support
62	the economic development of the state. The Legislature further
63	finds that it is necessary to provide a method of priority
64	permit review that allows seaports in this state to become
65	internationally competitive.
66	(2) Any port listed in s. 311.09(1) may apply to the
67	department for a port conceptual permit, including any
68	applicable authorization under chapter 253 to use sovereignty
69	submerged lands under a joint coastal permit pursuant to s.
70	161.055 or an environmental resource permit issued pursuant to
71	this part, for all or a portion of the area within the
72	geographic boundaries of the port. A private entity with a
73	controlling interest in property used for private industrial
74	marine activities in the immediate vicinity of a port listed in
75	s. 311.09(1) may also apply for a port conceptual permit under
76	this section. A port conceptual permit may be issued for a
77	period of up to 20 years and extended one time for an additional
78	10 years. A port conceptual permit constitutes the state's
79	conceptual certification of compliance with state water quality
80	standards for purposes of s. 401 of the Clean Water Act and the
81	state's conceptual determination that the activities contained
82	in the port conceptual permit are consistent with the state
83	coastal zone management program.
84	(3) A port conceptual permit application must contain
85	sufficient information to provide reasonable assurance that the
86	engineering and environmental concepts upon which the designs
87	are based are likely to meet applicable rule criteria for
88	issuance of construction permits for subsequent phases of the
89	project. At a minimum, a port conceptual permit application must
90	include the identification of proposed construction areas and
91	areas where construction will not occur; the estimated or
92	maximum anticipated impacts to wetlands and other surface waters
93	and any proposed mitigation for those impacts; the estimated or
94	maximum amount of anticipated impervious surface and the nature
95	of the stormwater treatment system for those areas; and the
96	general location and types of activities on sovereignty
97	submerged lands. Except where construction approval is requested
98	as part of a port conceptual permit application, the application
99	is not required to include final design specifications and
100	drawings. The department shall include conditions in the port
101	conceptual permit specifying the additional information that
102	must be submitted as part of any request for a subsequent
103	construction permit or authorization.
104	(4) In determining whether a port conceptual permit
105	application shall be approved in whole, approved with
106	modifications or conditions, or denied, the department shall
107	effect a reasonable balance between the potential benefits of
108	the facility and the impacts upon water quality, fish and
109	wildlife, water resources, and other natural resources of the
110	state resulting from the construction and operation of the
111	facility.
112	(5) A port conceptual permit provides the permitholder
113	with assurance, during the duration of the permit, that the
114	engineering and environmental concepts upon which the designs of
115	the port conceptual permit are based are likely to meet
116	applicable rule criteria for the issuance of construction
117	permits for subsequent phases of the project, if:
118	(a) There are no changes in the rules governing the
119	conditions of issuance of permits for future phases of the
120	project and the port conceptual permit is not inconsistent with
121	any total maximum daily load or basin management action plan
122	adopted for the waterbody into which the system discharges or is
123	located pursuant to s. 403.067(7) and department rules regarding
124	total maximum daily loads; and
125	(b) Applications for proposed future phase activities
126	under the port conceptual permit are consistent with the design
127	and conditions of the issued port conceptual permit. Primary
128	areas for consistency comparisons include the size, location,
129	and extent of the system; type of activity; percent of
130	imperviousness; allowable discharge and points of discharge;
131	location and extent of wetland and other surface water impacts
132	and, if required, a proposed mitigation plan; control
133	elevations; extent of stormwater reuse; and detention or
134	retention volumes. If an application for any subsequent phase
135	activity is made that is not consistent with the terms and
136	conditions of the port conceptual permit, the applicant may
137	request a modification of the port conceptual permit to resolve
138	the inconsistency or that the application be processed
139	independent of the port conceptual permit.
140	(6) Notwithstanding any other provision of law, a port
141	conceptual permit or associated construction permit, including
142	any applicable sovereignty submerged lands authorization, may
143	authorize advance mitigation for impacts expected as a result of
144	the activities described in the port conceptual permit. Such
145	advance mitigation shall be credited to offset the impacts of
146	such activities when undertaken, to the extent that the advance
147	mitigation is successful.
148	(7) Final agency action on a port conceptual sovereignty
149	submerged lands authorization associated with a port conceptual
150	permit may not be delegated by the Board of Trustees of the
151	Internal Improvement Trust Fund. However, approval of such an
152	authorization by the board shall constitute a delegation of
153	authority to the department to take final agency action on
154	behalf of the board on any sovereignty submerged lands
155	authorization necessary to construct facilities included in the
156	port conceptual sovereignty submerged lands authorization,
157	unless a member of the board specifically requests that final
158	agency action be brought before the board. Any delegation of
159	authority to the department concerning a private project does
160	not exempt the private project from applicable rules of the
161	board, including lease and easement fees.
162	(8) Except as otherwise provided in this section, the
163	following procedures apply to the approval or denial of an
164	application for a port conceptual permit or a final permit or
165	authorization:
166	(a) Applications for a port conceptual permit, including
167	any request for the conceptual approval of the use of
168	sovereignty submerged lands, shall be processed in accordance
169	with the provisions of ss. 373.427 and 120.60. However, if the
170	applicant believes that any request for additional information
171	is not authorized by law or agency rule, the applicant may
172	request an informal hearing pursuant to s. 120.57(2) before the
173	Secretary of Environmental Protection to determine whether the
174	application is complete.
175	(b) Upon issuance of the department's notice of intent to
176	issue or deny a port conceptual permit, the applicant shall
177	publish a one-time notice of such intent, prepared by the
178	department, in the newspaper with the largest general
179	circulation in the county or counties where the port is located.
180	(c) Final agency action on a port conceptual permit is
181	subject to challenge pursuant to ss. 120.569 and 120.57.
182	However, final agency action to authorize subsequent
183	construction of facilities contained in a port conceptual permit
184	may only be challenged by a third party for consistency with the
185	port conceptual permit.
186	(d) A person who will be substantially affected by a final
187	agency action described in paragraph (c) must initiate
188	administrative proceedings pursuant to ss. 120.569 and 120.57
189	within 21 days after the publication of the notice of the
190	proposed action. If administrative proceedings are requested,
191	the proceedings are subject to the summary hearing provisions of
192	s. 120.574. However, if the decision of the administrative law
193	judge will be a recommended order rather than a final order, a
194	summary proceeding must be conducted within 90 days after a
195	party files a motion for summary hearing, regardless of whether
196	the parties agree to the summary proceeding.
197	(9) Notwithstanding any other provision of law, the
198	department and the board are authorized to issue permits and
199	authorizations pursuant to this section in advance of the
200	issuance of any take authorization as provided for in the
201	Endangered Species Act and its implementing regulations if the
202	permits and authorizations include a condition requiring that
203	authorized activities shall not commence until such take
204	authorization is issued and shall be consistent with such
205	authorization. The department shall unilaterally modify any
206	permit or authorization issued pursuant to this section to make
207	the permit or authorization consistent with any subsequently
208	issued incidental take authorization. Such a unilateral
209	modification does not create a point of entry for any
210	substantially affected person to request administrative
211	proceedings under ss. 120.569 and 120.57.
212	(10) In lieu of meeting the generally applicable
213	stormwater design standards in rules adopted under this part,
214	which create a presumption that stormwater discharged from the
215	system will meet the applicable state water quality standards in
216	the receiving waters, any port listed in s. 311.09(1) may
217	propose alternative stormwater treatment and design criteria for
218	the construction, operation, and maintenance of stormwater
219	management systems serving overwater piers. The proposal shall
220	include such structural components or best management practices
221	to address the stormwater discharge from the pier, including
222	consideration of activities conducted on the pier, as are
223	necessary to provide reasonable assurance that stormwater
224	discharged from the system will meet the applicable state water
225	quality standards in the receiving waters.
226	(11) The department and the board may adopt rules to
227	implement the provisions of this section under the joint coastal
228	permit provisions of chapter 161, the sovereignty submerged
229	lands provisions of chapter 253, and the environmental resource
230	permit provisions of this part. The adoption of such rules is
231	not subject to any special rulemaking requirements related to
232	small business.
233	(12) This section shall take effect upon this act becoming
234	a law and its implementation may not be delayed by any
235	rulemaking under this section.
236	Section 2. Paragraph (a) of subsection (3) of section
237	311.07, Florida Statutes, is amended to read:
238	311.07 Florida seaport transportation and economic
239	development funding.-
240	(3)(a) Program funds shall be used to fund approved
241	projects on a 50-50 matching basis with any of the deepwater
242	ports, as listed in s. 403.021(9)(b), which is governed by a
243	public body or any other deepwater port which is governed by a
244	public body and which complies with the water quality provisions
245	of s. 403.061, the comprehensive master plan requirements of s.
246	163.3178(2)(k), and the local financial management and reporting
247	provisions of part III of chapter 218. However, program funds
248	used to fund projects that involve the rehabilitation of
249	wharves, docks, berths, bulkheads, or similar structures shall
250	require a 25-percent match of funds. Program funds also may be
251	used by the Seaport Transportation and Economic Development
252	Council to develop with the Florida Trade Data Center such trade
253	data information products which will assist Florida's seaports
254	and international trade.
255	Section 3. Subsection (10) of section 311.09, Florida
256	Statutes, is amended to read:
257	311.09 Florida Seaport Transportation and Economic
258	Development Council.-
259	(10) The Department of Transportation shall include in its
260	annual legislative budget request a Florida Seaport
261	Transportation and Economic Development grant program for
262	expenditure of funds of not less than $8 million per year. Such
263	budget shall include funding for projects approved by the
264	council which have been determined by each agency to be
265	consistent and which have been determined by the Office of
266	Tourism, Trade, and Economic Development to be economically
267	beneficial. The department shall include the specific approved
268	seaport projects to be funded under this section during the
269	ensuing fiscal year in the tentative work program developed
270	pursuant to s. 339.135(4). The total amount of funding to be
271	allocated to seaport projects under s. 311.07 during the
272	successive 4 fiscal years shall also be included in the
273	tentative work program developed pursuant to s. 339.135(4). The
274	council may submit to the department a list of approved projects
275	that could be made production-ready within the next 2 years. The
276	list shall be submitted by the department as part of the needs
277	and project list prepared pursuant to s. 339.135(2)(b) s.
278	339.135. However, the department shall, upon written request of
279	the Florida Seaport Transportation and Economic Development
280	Council, submit work program amendments pursuant to s.
281	339.135(7) to the Governor within 10 days after the later of the
282	date the request is received by the department or the effective
283	date of the amendment, termination, or closure of the applicable
284	funding agreement between the department and the affected
285	seaport, as required to release the funds from the existing
286	commitment. Notwithstanding s. 339.135(7)(c), any work program
287	amendment to transfer prior year funds from one approved seaport
288	project to another seaport project is subject to the procedures
289	in s. 339.135(7)(d). Notwithstanding any provision of law to the
290	contrary, the department may transfer unexpended budget between
291	the seaport projects as identified in the approved work program
292	amendments.
293	Section 4. Subsections (37) and (38) of section 403.061,
294	Florida Statutes, are amended to read:
295	403.061 Department; powers and duties.-The department
296	shall have the power and the duty to control and prohibit
297	pollution of air and water in accordance with the law and rules
298	adopted and promulgated by it and, for this purpose, to:
299	(37) Provide Enter into a memorandum of agreement with the
300	Florida Ports Council which provides a supplemental permitting
301	process for the issuance of a joint coastal permit pursuant to
302	s. 161.055 or environmental resource permit pursuant to part IV
303	of chapter 373, to a port listed in s. 311.09(1), for
304	maintenance dredging and the management of dredged materials
305	from maintenance dredging of all navigation channels, port
306	harbors, turning basins, and harbor berths. Such permit shall be
307	issued for a period of 5 years and shall be annually extended
308	for an additional year if the port is in compliance with all
309	permit conditions at the time of extension. The department is
310	authorized to adopt rules to implement this subsection.
311	(38) Provide Enter into a memorandum of agreement with the
312	Florida Ports Council which provides a supplemental permitting
313	process for the issuance of a conceptual joint coastal permit
314	pursuant to s. 161.055 or environmental resource permit pursuant
315	to part IV of chapter 373, to a port listed in s. 311.09(1), for
316	dredging and the management of materials from dredging and for
317	other related activities necessary for development, including
318	the expansion of navigation channels, port harbors, turning
319	basins, harbor berths, and associated facilities. Such permit
320	shall be issued for a period of up to 15 years. The department
321	is authorized to adopt rules to implement this subsection.
322	The department shall implement such programs in conjunction with
323	its other powers and duties and shall place special emphasis on
324	reducing and eliminating contamination that presents a threat to
325	humans, animals or plants, or to the environment.
326	Section 5. Subsection (3) of section 403.813, Florida
327	Statutes, is amended to read:
328	403.813 Permits issued at district centers; exceptions.-
329	(3) For maintenance dredging conducted under this section
330	by the seaports of Jacksonville, Port Canaveral, Fort Pierce,
331	Palm Beach, Port Everglades, Miami, Port Manatee, St.
332	Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key
333	West, and Fernandina or by inland navigation districts:
334	(a) A mixing zone for turbidity is granted within a 150-
335	meter 100-meter radius from the point of dredging while dredging
336	is ongoing, except that the mixing zone may does not extend into
337	areas supporting wetland communities, submerged aquatic
338	vegetation, or hardbottom communities.
339	(b) The discharge of the return water from the site used
340	for the disposal of dredged material shall be allowed only if
341	such discharge does not result in a violation of water quality
342	standards in the receiving waters. The However, any such return-
343	water discharge into receiving manmade waters shall be that are
344	not in Monroe County is granted a mixing zone for turbidity
345	within a 150-meter radius from the point of discharge during and
346	immediately after the discharge while dredging is ongoing,
347	except that the mixing zone may does not extend into areas
348	supporting wetland communities, submerged aquatic vegetation, or
349	hardbottom communities outside the manmade waters. As used in
350	this paragraph, the term "manmade waters" means surface waters
351	that were wholly excavated from lands other than wetlands and
352	other surface waters or semienclosed port berths.
353	(c) The state may not exact a charge for material that
354	this subsection allows a public port or an inland navigation
355	district to remove.
356	(d) The use of flocculants at the site used for disposal
357	of the dredged material is allowed if the use, including
358	supporting documentation, is coordinated in advance with the
359	department and the department has determined that the use is not
360	harmful to water resources.
361	(e) This subsection does not prohibit maintenance dredging
362	of areas where the loss of original design function and
363	constructed configuration has been caused by a storm event,
364	provided that the dredging is performed as soon as practical
365	after the storm event. Maintenance dredging that commences
366	within 3 2 years after the storm event shall be presumed to
367	satisfy this provision. If more than 3 2 years are needed to
368	commence the maintenance dredging after the storm event, a
369	request for a specific time extension to perform the maintenance
370	dredging shall be submitted to the department, prior to the end
371	of the 3-year 2-year period, accompanied by a statement,
372	including supporting documentation, demonstrating that
373	contractors are not available or that additional time is needed
374	to obtain authorization for the maintenance dredging from the
375	United States Army Corps of Engineers.
376	Section 6. Subsection (1) of section 161.055, Florida
377	Statutes, is amended to read:
378	161.055 Concurrent processing of permits.-
379	(1) When an activity for which a permit is required under
380	this chapter also requires a permit, authorization, or approval
381	described in paragraph (2)(b), including a port conceptual
382	permit pursuant to s. 373.4133, the department may, by rule,
383	provide that the activity may be undertaken only upon receipt of
384	a single permit from the department called a "joint coastal
385	permit," as provided in this section.
386	Section 7. Subsection (2) of section 253.002, Florida
387	Statutes, is amended to read:
388	253.002 Department of Environmental Protection, water
389	management districts, Fish and Wildlife Conservation Commission,
390	and Department of Agriculture and Consumer Services; duties with
391	respect to state lands.-
392	(2) Delegations to the department, or a water management
393	district, or the Department of Agriculture and Consumer Services
394	of authority to take final agency action on applications for
395	authorization to use submerged lands owned by the board of
396	trustees, without any action on behalf of the board of trustees,
397	shall be by rule, provided that delegations related to port
398	conceptual permits shall be in accordance with s. 373.4133.
399	Until rules adopted pursuant to this subsection become
400	effective, existing delegations by the board of trustees shall
401	remain in full force and effect. However, the board of trustees
402	is not limited or prohibited from amending these delegations.
403	The board of trustees shall adopt by rule any delegations of its
404	authority to take final agency action without action by the
405	board of trustees on applications for authorization to use board
406	of trustees-owned submerged lands. Any final agency action,
407	without action by the board of trustees, taken by the
408	department, or a water management district, or the Department of
409	Agriculture and Consumer Services on applications to use board
410	of trustees-owned submerged lands shall be subject to the
411	provisions of s. 373.4275. Notwithstanding any other provision
412	of this subsection, the board of trustees, the Department of
413	Legal Affairs, and the department retain the concurrent
414	authority to assert or defend title to submerged lands owned by
415	the board of trustees.
416	Section 8. A seaport listed in s. 311.09(1), Florida
417	Statutes, may receive or solicit proposals from and enter into a
418	public-private infrastructure project agreement with a private
419	entity, or a consortium of private entities, to build, operate,
420	manage, maintain, or finance a port-related public
421	infrastructure project.
422	Section 9. Except as otherwise expressly provided in this
423	act, this act shall take effect July 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.