House Bill 4071c1

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    Florida House of Representatives - 1998             CS/HB 4071

        By the Committee on Transportation and Representative
    Betancourt





  1                      A bill to be entitled

  2         An act relating to environmental protection;

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

  4         annual submissions, to the Department of

  5         Environmental Protection and water management

  6         districts, by the Department of Transportation

  7         of its adopted work program and inventory of

  8         impacted habitats; authorizing inclusion of

  9         habitat impacts of future transportation

10         projects; providing activities associated with

11         development of mitigation plans; requiring

12         water management districts to consult with

13         entities operating mitigation banks when

14         developing mitigation plans; providing that a

15         water management district's preliminary

16         approval of a mitigation plan does not

17         constitute a decision affecting substantial

18         interests; requiring mitigation plans to

19         include certain information; authorizing

20         exclusion of certain projects from the

21         environmental impact inventory; extending

22         certain mitigation funding through fiscal year

23         2004-2005; authorizing amendment of annual

24         mitigation plans for certain purposes;

25         providing for uses of funds not directed to

26         implement mitigation plans; deleting obsolete

27         language relating to a report; amending s.

28         373.421, F.S.; providing for surveys of wetland

29         boundaries; providing for such surveys to be

30         performed using a global positioning system;

31         providing additional requirements for such

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  1         surveys; providing for the effect of such

  2         surveys; amending s. 338.223, F.S.; requiring

  3         environmental feasibility review prior to

  4         advance right-of-way purchases for a proposed

  5         turnpike project; providing exceptions for

  6         hardship and protective purchases; providing an

  7         effective date.

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  9  Be It Enacted by the Legislature of the State of Florida:

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11         Section 1.  Section 373.4137, Florida Statutes, is

12  amended to read:

13         373.4137  Mitigation requirements.--

14         (1)  The Legislature finds that environmental

15  mitigation for the impact of transportation projects proposed

16  by the Department of Transportation can be more effectively

17  achieved by regional, long-range mitigation planning rather

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

19  Legislature that mitigation to offset the adverse effects of

20  these transportation projects be funded by the Department of

21  Transportation and be carried out by the Department of

22  Environmental Protection and the water management districts,

23  including the use of mitigation banks established pursuant to

24  this part.

25         (2)  Environmental impact inventories for

26  transportation projects proposed by the Department of

27  Transportation shall be developed as follows:

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

29  Transportation shall submit annually to the Department of

30  Environmental Protection and the water management districts a

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

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

  2  404 of the Clean Water Act, 33 U.S.C. s. 1344, which may be

  3  impacted by its plan of construction for transportation

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

  5  program. The Department of Transportation may also include in

  6  its inventory the habitat impacts of any future transportation

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

  8  1996 submittal, The inventory may exclude those projects which

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

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

11  mitigation planning or design has commenced, or projects for

12  which mitigation has been implemented in anticipation of

13  future permitting needs.

14         (b)  The environmental impact inventory shall include a

15  description of these habitat impacts, including their

16  location, acreage, and type; state water quality

17  classification of impacted wetlands and other surface waters;

18  any other state or regional designations for these habitats;

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

20  species of special concern affected by the proposed project.

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

22  impacts identified in the inventory described in subsection

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

24  shall identify funds quarterly in an escrow account within the

25  State Transportation Trust Fund established by the Department

26  of Transportation for the benefit of the Department of

27  Environmental Protection.  Any interest earnings from the

28  escrow account shall be returned to the Department of

29  Transportation.  The Department of Environmental Protection

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

31  the Ecosystem Management and Restoration Trust Fund no sooner

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

  2  activities contained in the mitigation programs.  The amount

  3  transferred each year by the Department of Transportation

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

  5  the projected acres of impact identified in the inventory

  6  described in subsection (2) within the water management

  7  district for that year.  The water management district may

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

  9  date funds are needed to pay for activities associated with

10  development or implementation of the mitigation plan described

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

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

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

14  1, beginning in 1998, the cost per acre shall be adjusted by

15  the percentage change in the average of the Consumer Price

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

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

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

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

20  the projected acreage of impact shall be reconciled with the

21  acreage of impact of projects as permitted pursuant to this

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

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

24  accordingly to reflect the overtransfer or undertransfer of

25  funds from the preceding year. The Department of Environmental

26  Protection is authorized to transfer such funds from the

27  Ecosystem Management and Restoration Trust Fund to the water

28  management districts to carry out the mitigation programs.

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

30  water management district, in consultation with the Department

31  of Environmental Protection, the United States Army Corps of

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

  2  governments, and entities operating mitigation banks which

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

  4  a plan for the primary purpose of complying with the

  5  mitigation requirements adopted pursuant to this part and 33

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

  7  aquatic and exotic plant problems within wetlands and other

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

  9  utilize sound ecosystem management practices to address

10  significant water resource needs.  In determining the

11  activities to be included in such plans, the districts shall

12  also consider the purchase of credits from public or private

13  mitigation banks permitted under this part and shall include

14  such purchase as a part of the mitigation plan when such

15  purchase would offset the impact of the transportation

16  project, provide equal benefits to the water resources than

17  other mitigation options being considered, and provide the

18  most cost-effective mitigation option.  The mitigation plan

19  shall be preliminarily approved by the water management

20  district governing board and shall be submitted to the

21  secretary of the Department of Environmental Protection for

22  review and final approval. The preliminary approval by the

23  water management district governing board does not constitute

24  a decision that affects substantial interests as provided by

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

26  the water management district shall provide a copy of the

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

28         (a)  Each mitigation plan shall include a brief

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

30  a mitigation option for each transportation project addressed

31  in the plan, including an estimation and description of

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  1  identifiable costs of the mitigation bank and nonmitigation

  2  bank option to the extent practicable.

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

  4  and water management districts are unable to identify

  5  mitigation that would offset the impacts of a project included

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

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

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

  9  subject to the provisions of this section.

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

11  environmental impact inventory and the mitigation plan and

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

13  Department of Transportation, the Department of Environmental

14  Protection, and the appropriate water management district that

15  the inclusion of such projects would hamper the efficiency or

16  timeliness of the mitigation planning and permitting process.

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

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

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

20  shall not apply to these projects.  The Department of

21  Transportation may enter into interagency agreements with the

22  Department of Environmental Protection or any water management

23  district to perform mitigation planning and implementation for

24  these projects.

25         (e)  Surface water improvement and management or

26  aquatic or exotic plant control projects undertaken using the

27  $12 million advance transferred from the Department of

28  Transportation to the Department of Environmental Protection

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

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

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

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

  2  $75,000 per acre of impact mitigated.  For any fiscal year

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

  4  cost of developing and implementing the mitigation plans is

  5  less than the amount transferred from the Department of

  6  Transportation to the Department of Environmental Protection

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

  8  towards the $12 million advance.

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

10  shall transfer to the Department of Environmental Protection

11  $12 million from the State Transportation Trust Fund for the

12  purposes of the surface water improvement management program

13  and to address statewide aquatic and exotic plant problems

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

15  considered an advance upon funds that the Department of

16  Transportation would provide for statewide mitigation during

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

18  use of mitigation funds for surface water improvement

19  management projects or aquatic and exotic plant control may be

20  utilized as mitigation for transportation projects to the

21  extent that it complies with the mitigation requirements

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

23  extent that such activities result in mitigation credit for

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

25  the $12 million funding for surface water improvement

26  management projects or aquatic and exotic plant control in

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

28  Transportation mitigation funding for fiscal year 1996-1997

29  rather than from mitigation funding for fiscal years

30  1997-1998, 1998-1999, and 1999-2000, in an amount equal to the

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

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  1  acreage of impact that is mitigated by such plant control

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

  3  in mitigation credit for projects permitted in fiscal year

  4  1996-1997 shall remain available for mitigation credit during

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

  6         (5)  The water management district shall be responsible

  7  for ensuring that mitigation requirements pursuant to 33

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

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

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

11  funding is provided as funded by the Department of

12  Transportation.  During the federal permitting process, the

13  water management district may deviate from the approved

14  mitigation plan in order to comply with federal permitting

15  requirements.

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

17  reflect the most current Department of Transportation work

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

19  schedule changes or additional projects which may arise.  Each

20  update and amendment of the mitigation plan shall be submitted

21  to the secretary of the Department of Environmental Protection

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

23  approval shall not be applicable to a deviation as described

24  in subsection (5).

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

26  of Environmental Protection, the mitigation plan shall be

27  deemed to satisfy the mitigation requirements under this part

28  and any other mitigation requirements imposed by local,

29  regional, and state agencies for impacts identified in the

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

31  secretary shall authorize the activities proposed in the

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

  2  or approval shall be necessary.

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

  4  the need for the Department of Transportation to comply with

  5  the requirement to implement practicable design modifications,

  6  including realignment of transportation projects, to reduce or

  7  eliminate the impacts of its transportation projects on

  8  wetlands and other surface waters as required by rules adopted

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

10  part to regulate other impacts, including water quantity or

11  water quality impacts, or impacts regulated under this part

12  that are not identified in the inventory described in

13  subsection (2).

14         (9)  The recommended mitigation plan shall be annually

15  submitted to the Executive Office of the Governor and the

16  Legislature through the legislative budget request of the

17  Department of Environmental Protection in accordance with

18  chapter 216.  Any funds not directed to implement the

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

20  directed to fund department or water management district

21  activities such as surface water improvement and management

22  projects and lands identified for potential acquisition or

23  restoration aquatic and exotic plant problems within the

24  wetlands and other surface waters.

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

26  Environmental Protection, in consultation with the water

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

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

29  Representatives describing the implementation of this section,

30  including the use of public and private mitigation banks and

31  other types of mitigation approved in the mitigation plan.

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  1  The report shall also recommend any amendments to this section

  2  necessary to improve the process for developing and

  3  implementing mitigation plans for the Department of

  4  Transportation.  The report shall also include a specific

  5  section on how private and public mitigation banks are

  6  utilized within the mitigation plans.

  7         Section 2.  Subsection (8) is added to section 373.421,

  8  Florida Statutes, to read:

  9         373.421  Delineation methods; formal determinations.--

10         (8)  Whenever a survey or certified survey of

11  delineated wetland boundaries is required for any purpose

12  pursuant to this chapter, the survey may be performed by

13  conventional methods of land surveying or by use of a global

14  positioning system. When a global positioning system is used

15  in the survey, the equipment must provide for submeter or

16  better accuracy and be operated by or under the supervision of

17  a registered land surveyor licensed in the state, or by an

18  individual specifically trained in the use of the make, type,

19  and model of global positioning system equipment being

20  employed. Presence of the registered surveyor's seal and

21  signature shall constitute proof that the survey was conducted

22  by or under the supervision of a registered land surveyor

23  licensed in the tate. Specific proof of training shall be

24  required by the regulatory agency for any individual who is

25  not a registered land surveyor licensed in the state or who

26  does not work under the supervision of a registered land

27  surveyor licensed in the state. A global positioning system

28  survey of wetland boundaries which has been conducted in

29  accordance with this subsection shall not be considered an

30  approximate wetland delineated under rules adopted pursuant to

31  subsection (2).

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  1         Section 3.  Paragraph (b) of subsection (2) of section

  2  338.223, Florida Statutes, is amended to read:

  3         338.223  Proposed turnpike projects.--

  4         (2)

  5         (b)  In accordance with the legislative intent

  6  expressed in s. 337.273, and after the requirements of

  7  paragraph (1)(c) have been met, the department may acquire

  8  lands and property before making a final determination of the

  9  economic feasibility of a project. The requirements of

10  paragraph (1)(c) shall not apply to hardship and protective

11  purchases of advance right-of-way by the department. The cost

12  of advance acquisition of right-of-way may be paid from bonds

13  issued under s. 337.276 or from turnpike revenues.  For

14  purposes of this paragraph, "hardship purchase" means purchase

15  from a property owner of a residential dwelling of not more

16  than four units who is at a disadvantage due to health

17  impairment, job loss, or significant loss of rental income.

18  For purposes of this subsection, "protective purchase" means a

19  purchase to limit development, building, or other

20  intensification of land uses within the area right-of-way

21  needed for transportation facilities.  The department shall

22  give written notice to the Department of Environmental

23  Protection 30 days prior to final agency acceptance as set

24  forth in s. 119.07(3)(n), which notice shall allow the

25  Department of Environmental Protection to comment.  Hardship

26  and protective purchases of right-of-way shall not influence

27  the environmental feasibility of the project, including the

28  decision relative to the need to construct the project or the

29  selection of a specific location.  Costs to acquire and

30  dispose of property acquired as hardship and protective

31  purchases are considered costs of doing business for the

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  1  department and shall not be considered in the determination of

  2  environmental feasibility for the project.

  3         Section 4.  This act shall take effect upon becoming a

  4  law.

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