Bill Text: FL S2000 | 2010 | Regular Session | Comm Sub

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Bill Title: Seaports [WPSC]

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2010-04-28 - Placed on Special Order Calendar; Read 2nd time -SJ 00933; Amendment(s) adopted (800090, 594120, 312540) -SJ 00933; Substituted CS/CS/CS/HB 963 -SJ 00933; Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 963 (Ch. 2010-201) -SJ 00933 [S2000 Detail]

Download: Florida-2010-S2000-Comm_Sub.html

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Florida Senate - 2010        CS for CS for CS for CS for SB 2000 
 
By the Policy and Steering Committee on Ways and Means; the 
Committees on Transportation and Economic Development 
Appropriations; Environmental Preservation and Conservation; and 
Commerce; and Senator Ring 
576-05327-10                                          20102000c4 
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 budget 
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. 
59 
60  Be It Enacted by the Legislature of the State of Florida: 
61 
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). Notwithstanding any other provision of law, 
292  the department may transfer unexpended budget between the 
293  seaport projects as identified in the approved work program 
294  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. 
326 
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.