Florida Senate - 2011                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for HB 399
       
       
       
       
       
       
                                Barcode 631296                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             05/02/2011 03:47 PM       .                                
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       Senator Ring moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 273 - 280
    4  and insert:
    5         Section 8. Subsection (18) of section 373.414, Florida
    6  Statutes, is amended to read:
    7         373.414 Additional criteria for activities in surface
    8  waters and wetlands.—
    9         (18) The department, in coordination with and each water
   10  management district responsible for implementation of the
   11  environmental resource permitting program, shall develop a
   12  uniform mitigation assessment method for wetlands and other
   13  surface waters. The department shall adopt the uniform
   14  mitigation assessment method by rule no later than July 31,
   15  2002. The rule shall provide an exclusive, uniform, and
   16  consistent process for determining the amount of mitigation
   17  required to offset impacts to wetlands and other surface waters,
   18  and, once effective, shall supersede all rules, ordinances, and
   19  variance procedures from ordinances that determine the amount of
   20  mitigation needed to offset such impacts. Except when evaluating
   21  mitigation bank applications, which must meet the criteria of s.
   22  373.4136(1), the rule shall be applied only after determining
   23  that the mitigation is appropriate to offset the values and
   24  functions of wetlands and surface waters to be adversely
   25  impacted by the proposed activity. Once the department adopts
   26  the uniform mitigation assessment method by rule, the uniform
   27  mitigation assessment method shall be binding on the department,
   28  the water management districts, local governments, and any other
   29  governmental agencies and shall be the sole means to determine
   30  the amount of mitigation needed to offset adverse impacts to
   31  wetlands and other surface waters and to award and deduct
   32  mitigation bank credits. A water management district and any
   33  other governmental agency subject to chapter 120 may apply the
   34  uniform mitigation assessment method without the need to adopt
   35  it pursuant to s. 120.54. It shall be a goal of the department
   36  and water management districts that the uniform mitigation
   37  assessment method developed be practicable for use within the
   38  timeframes provided in the permitting process and result in a
   39  consistent process for determining mitigation requirements. It
   40  shall be recognized that any such method shall require the
   41  application of reasonable scientific judgment. The uniform
   42  mitigation assessment method must determine the value of
   43  functions provided by wetlands and other surface waters
   44  considering the current conditions of these areas, utilization
   45  by fish and wildlife, location, uniqueness, and hydrologic
   46  connection, and, when applied to mitigation banks, the factors
   47  listed in s. 373.4136(4). The uniform mitigation assessment
   48  method shall also account for the expected time-lag associated
   49  with offsetting impacts and the degree of risk associated with
   50  the proposed mitigation. The uniform mitigation assessment
   51  method shall account for different ecological communities in
   52  different areas of the state. In developing the uniform
   53  mitigation assessment method, the department and water
   54  management districts shall consult with approved local programs
   55  under s. 403.182 which have an established mitigation program
   56  for wetlands or other surface waters. The department and water
   57  management districts shall consider the recommendations
   58  submitted by such approved local programs, including any
   59  recommendations relating to the adoption by the department and
   60  water management districts of any uniform mitigation methodology
   61  that has been adopted and used by an approved local program in
   62  its established mitigation program for wetlands or other surface
   63  waters. Environmental resource permitting rules may establish
   64  categories of permits or thresholds for minor impacts under
   65  which the use of the uniform mitigation assessment method will
   66  not be required. The application of the uniform mitigation
   67  assessment method is not subject to s. 70.001. In the event the
   68  rule establishing the uniform mitigation assessment method is
   69  deemed to be invalid, the applicable rules related to
   70  establishing needed mitigation in existence prior to the
   71  adoption of the uniform mitigation assessment method, including
   72  those adopted by a county which is an approved local program
   73  under s. 403.182, and the method described in paragraph (b) for
   74  existing mitigation banks, shall be authorized for use by the
   75  department, water management districts, local governments, and
   76  other state agencies.
   77         (a) In developing the uniform mitigation assessment method,
   78  the department shall seek input from the United States Army
   79  Corps of Engineers in order to promote consistency in the
   80  mitigation assessment methods used by the state and federal
   81  permitting programs.
   82         (b) An entity which has received a mitigation bank permit
   83  prior to the adoption of the uniform mitigation assessment
   84  method shall have impact sites assessed, for the purpose of
   85  deducting bank credits, using the credit assessment method,
   86  including any functional assessment methodology, which was in
   87  place when the bank was permitted; unless the entity elects to
   88  have its credits redetermined, and thereafter have its credits
   89  deducted, using the uniform mitigation assessment method.
   90         (c) The department shall ensure statewide coordination and
   91  consistency in the interpretation and application of the uniform
   92  mitigation assessment method rule by providing programmatic
   93  training and guidance to staff of the department, water
   94  management districts, and local governments. To ensure that the
   95  uniform mitigation assessment method rule is interpreted and
   96  applied uniformly, the department’s interpretation, guidance,
   97  and approach to applying the uniform mitigation assessment
   98  method rule shall govern.
   99         (d) Applicants shall submit the information needed to
  100  perform the assessment required under the uniform mitigation
  101  assessment method rule, and may submit the qualitative
  102  characterization and quantitative assessment for each assessment
  103  area specified by the rule. The reviewing agency shall review
  104  that information and notify the applicant of any inadequacy in
  105  the information or application of the assessment method.
  106         (e) When conducting qualitative characterization of
  107  artificial wetlands and other surface waters, such as borrow
  108  pits, ditches, and canals, under the uniform mitigation
  109  assessment method rule, the native community type to which it is
  110  most analogous in function shall be used as a reference. For
  111  wetlands or other surface waters that have been altered from
  112  their native community type, the historic community type at that
  113  location shall be used as a reference, unless the alteration has
  114  been of such a degree and extent that a different native
  115  community type is now present and self-sustaining.
  116         (f) When conducting qualitative characterization of upland
  117  mitigation assessment areas, the characterization shall include
  118  functions that the upland assessment area provides to the fish
  119  and wildlife of the associated wetland or other surface waters.
  120  These functions shall be considered when scoring the upland
  121  assessment area for preservation, enhancement, or restoration.
  122  Any increase in these functions resulting from activities in an
  123  upland mitigation assessment area shall be accounted for in the
  124  upland assessment area scoring.
  125         (g) The term “preservation mitigation,” as used in the
  126  uniform mitigation assessment method, means the protection of
  127  important wetland, other surface water, or upland ecosystems
  128  predominantly in their existing condition and absent
  129  restoration, creation, or enhancement from adverse impacts by
  130  placing a conservation easement or other comparable land use
  131  restriction over the property or by donation of fee simple
  132  interest in the property. Preservation may include a management
  133  plan for perpetual protection of the area. The preservation
  134  adjustment factor set forth in rule 62-345.500(3), Florida
  135  Administrative Code, shall apply only to preservation
  136  mitigation.
  137         (h) When assessing a preservation mitigation assessment
  138  area under the uniform mitigation assessment method, the
  139  following shall apply:
  140         1. “Without preservation” shall consider the reasonably
  141  anticipated loss of functions and values provided by the
  142  assessment area, assuming the area is not preserved.
  143         2. Each of the considerations of the preservation
  144  adjustment factor specified in rule 62-345.500(3)(a), Florida
  145  Administrative Code, shall be equally weighted and scored on a
  146  scale from 0, no value, to 0.2, optimal value. In addition, the
  147  minimum preservation adjustment factor shall be 0.2.
  148         (i) The location and landscape support scores, pursuant to
  149  rule 62-345.500, Florida Administrative Code, may change in the
  150  “with mitigation” or “with impact” condition in both upland and
  151  wetland assessment areas, regardless of the initial community
  152  structure or water environment scores.
  153         (j) When a mitigation plan for creation, restoration, or
  154  enhancement includes a preservation mechanism, such as a
  155  conservation easement, the “with mitigation” assessment of that
  156  creation, restoration, or enhancement shall consider, and the
  157  scores shall reflect, the benefits of that preservation
  158  mechanism, and the benefits of that preservation mechanism may
  159  not be scored separately.
  160         (k) Any entity holding a mitigation bank permit that was
  161  evaluated under the uniform mitigation assessment rule before
  162  the effective date of paragraphs (c)-(j) may submit a permit
  163  modification request to the relevant permitting agency to have
  164  such mitigation bank reassessed pursuant to the provisions set
  165  forth in this section, and the relevant permitting agency shall
  166  reassess such mitigation bank, if such request is filed with
  167  that agency no later than September 30, 2011.
  168         Section 9. Subsection (3) of section 403.813, Florida
  169  Statutes, is amended to read:
  170         403.813 Permits issued at district centers; exceptions.—
  171         (3) A permit is not required under this chapter, chapter
  172  373, chapter 61-691, Laws of Florida, or chapter 25214 or
  173  chapter 25270, 1949, Laws of Florida, for maintenance dredging
  174  conducted under this section by the seaports of Jacksonville,
  175  Port Canaveral, Port Citrus, Fort Pierce, Palm Beach, Port
  176  Everglades, Miami,
  177  
  178  ================= T I T L E  A M E N D M E N T ================
  179         And the title is amended as follows:
  180         Between lines 38 and 39
  181  insert:
  182         amending s. 373.414, F.S.; revising provisions for the
  183         uniform mitigation assessment method rule for wetlands
  184         and other surface waters; providing requirements for
  185         the interpretation and application of the uniform
  186         mitigation assessment method rule; providing an
  187         exception; providing for “preservation mitigation” and
  188         “without preservation” for the purposes of certain
  189         assessments pursuant to the rule; providing for
  190         reassessment of mitigation banks under certain
  191         conditions;