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





                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    

                            CHAMBER ACTION
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11  Senator Bronson moved the following amendment:

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13         Senate Amendment (with title amendment) 

14         On page 27, between lines 26 and 27,

15

16  insert:

17         Section 14.  Section 373.4137, Florida Statutes, is

18  amended to read:

19         373.4137  Mitigation requirements.--

20         (1)  The Legislature finds that environmental

21  mitigation for the impact of transportation projects proposed

22  by the Department of Transportation can be more effectively

23  achieved by regional, long-range mitigation planning rather

24  than on a project-by-project basis.  It is the intent of the

25  Legislature that mitigation to offset the adverse effects of

26  these transportation projects be funded by the Department of

27  Transportation and be carried out by the Department of

28  Environmental Protection and the water management districts,

29  including the use of mitigation banks established pursuant to

30  this part.

31         (2)  Environmental impact inventories for

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  transportation projects proposed by the Department of

 2  Transportation shall be developed as follows:

 3         (a)  Each June 1 Beginning July 1996, the Department of

 4  Transportation shall submit annually to the Department of

 5  Environmental Protection and the water management districts a

 6  copy of its adopted work program and an inventory of habitats

 7  addressed in the rules adopted pursuant to this part and s.

 8  404 of the Clean Water Act, 33 U.S.C. s. 1344, which may be

 9  impacted by its plan of construction for transportation

10  projects in the next first 3 years of the adopted work

11  program. The Department of Transportation may also include in

12  its inventory the habitat impacts of any future transportation

13  project identified in the adopted work program. For the July

14  1996 submittal, The inventory may exclude those projects which

15  have received permits pursuant to this part and s. 404 of the

16  Clean Water Act, 33 U.S.C. s. 1344, projects for which

17  mitigation planning or design has commenced, or projects for

18  which mitigation has been implemented in anticipation of

19  future permitting needs.

20         (b)  The environmental impact inventory shall include a

21  description of these habitat impacts, including their

22  location, acreage, and type; state water quality

23  classification of impacted wetlands and other surface waters;

24  any other state or regional designations for these habitats;

25  and a survey of threatened species, endangered species, and

26  species of special concern affected by the proposed project.

27         (3)  To fund the mitigation plan for the projected

28  impacts identified in the inventory described in subsection

29  (2), beginning July 1, 1997, the Department of Transportation

30  shall identify funds quarterly in an escrow account within the

31  State Transportation Trust Fund established by the Department

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  of Transportation for the benefit of the Department of

 2  Environmental Protection.  Any interest earnings from the

 3  escrow account shall be returned to the Department of

 4  Transportation.  The Department of Environmental Protection

 5  shall request a transfer of funds from the escrow account to

 6  the Ecosystem Management and Restoration Trust Fund no sooner

 7  than 30 days prior to the date the funds are needed to pay for

 8  activities contained in the mitigation programs.  The amount

 9  transferred each year by the Department of Transportation

10  shall correspond to a cost per acre of $75,000 multiplied by

11  the projected acres of impact identified in the inventory

12  described in subsection (2) within the water management

13  district for that year.  The water management district may

14  draw from the trust fund no sooner than 30 days prior to the

15  date funds are needed to pay for activities associated with

16  development or implementation of the mitigation plan described

17  in subsection (4). Activities associated with the development

18  of the mitigation plan include, but are not limited to,

19  design, engineering, production, and staff support. Each July

20  1, beginning in 1998, the cost per acre shall be adjusted by

21  the percentage change in the average of the Consumer Price

22  Index issued by the United States Department of Labor for the

23  most recent 12-month period ending September 30, compared to

24  the base year average, which is the average for the 12-month

25  period ending September 30, 1996.  At the end of each year,

26  the projected acreage of impact shall be reconciled with the

27  acreage of impact of projects as permitted pursuant to this

28  part and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344, and

29  the following year's transfer of funds shall be adjusted

30  accordingly to reflect the overtransfer or undertransfer of

31  funds from the preceding year. The Department of Environmental

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  Protection is authorized to transfer such funds from the

 2  Ecosystem Management and Restoration Trust Fund to the water

 3  management districts to carry out the mitigation programs.

 4         (4)  Prior to December 1 of each year 31, 1996, each

 5  water management district, in consultation with the Department

 6  of Environmental Protection, the United States Army Corps of

 7  Engineers, and other appropriate federal, state, and local

 8  governments, and entities operating mitigation banks which

 9  have obtained a permit pursuant to s. 373.4136, shall develop

10  a plan for the primary purpose of complying with the

11  mitigation requirements adopted pursuant to this part and 33

12  U.S.C. s. 1344. This plan shall also address significant

13  aquatic and exotic plant problems within wetlands and other

14  surface waters. In developing such plans, the districts shall

15  utilize sound ecosystem management practices to address

16  significant water resource needs and shall focus on activities

17  of the department and the water management districts, such as

18  surface water improvement and management projects and lands

19  identified for potential acquisition or restoration, to the

20  extent such activities comply with the mitigation requirements

21  adopted under this part and 33 U.S.C. s. 1344.  In determining

22  the activities to be included in such plans, the districts

23  shall also consider the purchase of credits from public or

24  private mitigation banks permitted under this part and shall

25  include such purchase as a part of the mitigation plan when

26  such purchase would offset the impact of the transportation

27  project, provide equal benefits to the water resources than

28  other mitigation options being considered, and provide the

29  most cost-effective mitigation option.  The mitigation plan

30  shall be preliminarily approved by the water management

31  district governing board and shall be submitted to the

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  secretary of the Department of Environmental Protection for

 2  review and final approval. The preliminary approval by the

 3  water management district governing board does not constitute

 4  a decision that affects substantial interests as provided by

 5  s. 120.569. At least 30 days prior to preliminary approval,

 6  the water management district shall provide a copy of the

 7  draft mitigation plan to any person who has requested a copy.

 8         (a)  Each mitigation plan shall include a brief

 9  explanation of why a mitigation bank was or was not chosen as

10  a mitigation option for each transportation project addressed

11  in the plan, including an estimation and description of

12  identifiable costs of the mitigation bank and nonmitigation

13  bank option to the extent practicable.

14         (b)(a)  If the Department of Environmental Protection

15  and water management districts are unable to identify

16  mitigation that would offset the impacts of a project included

17  in the inventory, either due to the nature of the impact or

18  the amount of funds available, that project shall not be

19  addressed in the mitigation plan and the project shall not be

20  subject to the provisions of this section.

21         (c)(b)  Specific projects may be excluded from the

22  environmental impact inventory and the mitigation plan and

23  shall not be subject to this section upon the agreement of the

24  Department of Transportation, the Department of Environmental

25  Protection, and the appropriate water management district that

26  the inclusion of such projects would hamper the efficiency or

27  timeliness of the mitigation planning and permitting process.

28         (d)(c)  Those transportation projects that are proposed

29  to commence in fiscal year 1996-1997 shall not be addressed in

30  the mitigation plan, and the provisions of subsection (7)

31  shall not apply to these projects.  The Department of

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  Transportation may enter into interagency agreements with the

 2  Department of Environmental Protection or any water management

 3  district to perform mitigation planning and implementation for

 4  these projects.

 5         (e)  Surface water improvement and management or

 6  aquatic or exotic plant control projects undertaken using the

 7  $12 million advance transferred from the Department of

 8  Transportation to the Department of Environmental Protection

 9  in fiscal year 1996-1997 shall remain available for mitigation

10  until the $12 million is fully credited up to and including

11  fiscal year 2004-2005.  When these projects are used as

12  mitigation, the $12 million advance shall be reduced by

13  $75,000 per acre of impact mitigated.  For any fiscal year

14  through and including fiscal year 2004-2005, to the extent the

15  cost of developing and implementing the mitigation plans is

16  less than the amount transferred from the Department of

17  Transportation to the Department of Environmental Protection

18  pursuant to subsection (3), the difference shall be credited

19  towards the $12 million advance.

20         (d)  On July 1, 1996, the Department of Transportation

21  shall transfer to the Department of Environmental Protection

22  $12 million from the State Transportation Trust Fund for the

23  purposes of the surface water improvement management program

24  and to address statewide aquatic and exotic plant problems

25  within wetlands and other surface waters.  Such funds shall be

26  considered an advance upon funds that the Department of

27  Transportation would provide for statewide mitigation during

28  the 1997-1998, 1998-1999, and 1999-2000 fiscal years.  This

29  use of mitigation funds for surface water improvement

30  management projects or aquatic and exotic plant control may be

31  utilized as mitigation for transportation projects to the

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  extent that it complies with the mitigation requirements

 2  adopted pursuant to this part and 33 U.S.C. s. 1344.  To the

 3  extent that such activities result in mitigation credit for

 4  projects permitted in fiscal year 1996-1997, all or part of

 5  the $12 million funding for surface water improvement

 6  management projects or aquatic and exotic plant control in

 7  fiscal year 1996-1997 shall be drawn from Department of

 8  Transportation mitigation funding for fiscal year 1996-1997

 9  rather than from mitigation funding for fiscal years

10  1997-1998, 1998-1999, and 1999-2000, in an amount equal to the

11  cost per acre of impact described in subsection (3), times the

12  acreage of impact that is mitigated by such plant control

13  activities.  Any part of the $12 million that does not result

14  in mitigation credit for projects permitted in fiscal year

15  1996-1997 shall remain available for mitigation credit during

16  fiscal years 1997-1998, 1998-1999, or 1999-2000.

17         (5)  The water management district shall be responsible

18  for ensuring that mitigation requirements pursuant to 33

19  U.S.C. s. 1344 are met for the impacts identified in the

20  inventory described in subsection (2), by implementation of

21  the approved plan described in subsection (4) to the extent

22  funding is provided as funded by the Department of

23  Transportation.  During the federal permitting process, the

24  water management district may deviate from the approved

25  mitigation plan in order to comply with federal permitting

26  requirements.

27         (6)  The mitigation plan shall be updated annually to

28  reflect the most current Department of Transportation work

29  program, and may be amended throughout the year to anticipate

30  schedule changes or additional projects which may arise.  Each

31  update and amendment of the mitigation plan shall be submitted

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  to the secretary of the Department of Environmental Protection

 2  for approval as described in subsection (4). However, such

 3  approval shall not be applicable to a deviation as described

 4  in subsection (5).

 5         (7)  Upon approval by the secretary of the Department

 6  of Environmental Protection, the mitigation plan shall be

 7  deemed to satisfy the mitigation requirements under this part

 8  and any other mitigation requirements imposed by local,

 9  regional, and state agencies for impacts identified in the

10  inventory described in subsection (2).  The approval of the

11  secretary shall authorize the activities proposed in the

12  mitigation plan, and no other state, regional, or local permit

13  or approval shall be necessary.

14         (8)  This section shall not be construed to eliminate

15  the need for the Department of Transportation to comply with

16  the requirement to implement practicable design modifications,

17  including realignment of transportation projects, to reduce or

18  eliminate the impacts of its transportation projects on

19  wetlands and other surface waters as required by rules adopted

20  pursuant to this part, or to diminish the authority under this

21  part to regulate other impacts, including water quantity or

22  water quality impacts, or impacts regulated under this part

23  that are not identified in the inventory described in

24  subsection (2).

25         (9)  The recommended mitigation plan shall be annually

26  submitted to the Executive Office of the Governor and the

27  Legislature through the legislative budget request of the

28  Department of Environmental Protection in accordance with

29  chapter 216.  Any funds not directed to implement the

30  mitigation plan should, to the greatest extent possible, be

31  directed to fund aquatic and exotic plant problems within the

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  wetlands and other surface waters.

 2         (10)  By December 1, 1997, the Department of

 3  Environmental Protection, in consultation with the water

 4  management districts, shall submit a report to the Governor,

 5  the President of the Senate, and the Speaker of the House of

 6  Representatives describing the implementation of this section,

 7  including the use of public and private mitigation banks and

 8  other types of mitigation approved in the mitigation plan.

 9  The report shall also recommend any amendments to this section

10  necessary to improve the process for developing and

11  implementing mitigation plans for the Department of

12  Transportation.  The report shall also include a specific

13  section on how private and public mitigation banks are

14  utilized within the mitigation plans.

15         Section 15.  Section 86 of chapter 93-213, Laws of

16  Florida, is amended to read:

17         Section 86.  The Department of Environmental Regulation

18  is authorized 54 career service positions for administering

19  the state NPDES program. Twenty-five career service positions

20  are authorized for startup of the program beginning July 1,

21  1993, and the remaining 29 career service positions beginning

22  January 1, 1994.  The state NPDES program staffing shall start

23  July 1, 1993, with completion targeted for 6 months following

24  United States Environmental Protection Agency authorization to

25  administer the National Pollutant Discharge Elimination System

26  program.  Implementation of positions is subject to review and

27  final approval by the secretary of the Department of

28  Environmental Regulation.  The sum of $3.2 million is hereby

29  appropriated from the Pollution Recovery Trust Fund to cover

30  program startup costs.  Such funds are to be repaid from a

31  fund the Legislature deems appropriate, no later than July 1,

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  2000.

 2         Section 16.  Subsection (8) is added to section

 3  373.139, Florida Statutes, to read:

 4         (8)(a)  A district may not disburse district funds or

 5  assets to the federal government, or any department or agency

 6  thereof, in any agreement or other arrangement, to take

 7  property or any interest therein by eminent domain, pursuant

 8  to federal law, if such agreement or other arrangement

 9  diminishes or deprives a person or entity of any right,

10  privilege, or compensation that they would otherwise have if

11  the property or interest was taken by eminent domain under

12  Florida law. Any affected person or entity shall have standing

13  to enforce this prohibition by bringing an action in circuit

14  court in the county in which the affected property is located.

15         (b)  The Legislature declares that the Kissimmee River,

16  Florida Project as identified in the Project Cooperation

17  Agreement between the Department of the Army and the South

18  Florida Water Management District, dated March 22, 1994, is in

19  the public interest and for a public purpose. This project is

20  necessary for the public health and welfare. The acquisition

21  of real property, including by eminent domain, for this

22  objective constitutes a public purpose for which it is in the

23  public interest to expend public funds. The governing board of

24  the district is empowered and authorized to acquire fee title

25  or easements by eminent domain for the limited purpose of

26  implementing the Kissimmee River, Florida Project.

27         (c)  This subsection expires July 1, 2000.

28

29  (Redesignate subsequent sections.)

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1  ================ T I T L E   A M E N D M E N T ===============

 2  And the title is amended as follows:

 3         On page 2, line 19, after the semicolon,

 4

 5  insert:

 6         amending s. 373.4137, F.S.; requiring ongoing

 7         annual submissions, to the Department of

 8         Environmental Protection and water management

 9         districts, by the Department of Transportation

10         of its adopted work program and inventory of

11         impacted habitats; authorizing inclusion of

12         habitat impacts of future transportation

13         projects; providing activities associated with

14         development of mitigation plans; requiring

15         water management districts to consult with

16         entities operating mitigation banks when

17         developing mitigation plans; providing that a

18         water management district's preliminary

19         approval of a mitigation plan does not

20         constitute a decision affecting substantial

21         interests; requiring mitigation plans to

22         include certain information; authorizing

23         exclusion of certain projects from the

24         environmental impact inventory; extending

25         certain mitigation funding through fiscal year

26         2004-2005; authorizing amendment of annual

27         mitigation plans for certain purposes;

28         providing for uses of funds not directed to

29         implement mitigation plans; deleting obsolete

30         provisions relating to a report; amending s. 86

31         of ch. 93-213, Laws of Florida; deleting a

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 1456

    Amendment No.    





 1         scheduled repayment of funds previously

 2         appropriated for startup costs of the National

 3         Pollutant Discharge Elimination System program;

 4         amending s. 373.139, F.S.; prohibiting the

 5         disbursement of certain district funds or

 6         assets in eminent domain proceedings under

 7         certain circumstances; providing standing to

 8         sue for certain persons; providing a

 9         declaration that the Kissimmee River Project is

10         in the public interest and for a public

11         purpose; authorizing certain eminent domain

12         proceedings; providing for the future repeal of

13         such provisions;

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