Senate Bill 0986
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Florida Senate - 1998 SB 986
By Senator Bronson
18-732-98
1 A bill to be entitled
2 An act relating to environmental mitigation;
3 amending s. 373.4137, F.S.; authorizing the
4 Department of Transportation to include an
5 inventory of habitats impacted by projects in
6 the adopted work program; providing uses for
7 specified funding; providing that preliminary
8 approval of a mitigation plan is not a decision
9 affecting substantial interests; revising
10 funding provisions through future fiscal years;
11 authorizing the amendment of mitigation plans;
12 deleting obsolete provisions; providing an
13 effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
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17 Section 1. 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.
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Florida Senate - 1998 SB 986
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1 (2) Environmental impact inventories for
2 transportation projects proposed by the Department of
3 Transportation shall be developed as follows:
4 (a) Beginning July 1996, The Department of
5 Transportation shall submit annually to the Department of
6 Environmental Protection and the water management districts a
7 copy of its adopted work program and an inventory of habitats
8 addressed in the rules adopted pursuant to this part and s.
9 404 of the Clean Water Act, 33 U.S.C. s. 1344, which may be
10 affected impacted by its plan of construction for
11 transportation projects in the next first 3 years of the
12 adopted work program. The Department of Transportation may
13 also include an inventory of habitats that may be affected by
14 any future transportation project identified in the adopted
15 work program. For the July 1996 submittal, the inventory may
16 exclude those projects which have received permits pursuant to
17 this part and s. 404 of the Clean Water Act, 33 U.S.C. s.
18 1344, projects for which mitigation planning or design has
19 commenced, or projects for which mitigation has been
20 implemented in anticipation of future permitting needs.
21 (b) The environmental impact inventory shall include a
22 description of these habitat impacts, including their
23 location, acreage, and type; state water quality
24 classification of impacted wetlands and other surface waters;
25 any other state or regional designations for these habitats;
26 and a survey of threatened species, endangered species, and
27 species of special concern affected by the proposed project.
28 (3) To fund the mitigation plan for the projected
29 impacts identified in the inventory described in subsection
30 (2), beginning July 1, 1997, the Department of Transportation
31 shall identify funds quarterly in an escrow account within the
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Florida Senate - 1998 SB 986
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1 State Transportation Trust Fund established by the Department
2 of Transportation for the benefit of the Department of
3 Environmental Protection. Any interest earnings from the
4 escrow account shall be returned to the Department of
5 Transportation. The Department of Environmental Protection
6 shall request a transfer of funds from the escrow account to
7 the Ecosystem Management and Restoration Trust Fund no sooner
8 than 30 days prior to the date the funds are needed to pay for
9 activities contained in the mitigation programs. The amount
10 transferred each year by the Department of Transportation
11 shall correspond to a cost per acre of $75,000 multiplied by
12 the projected acres of impact identified in the inventory
13 described in subsection (2) within the water management
14 district for that year. The water management district may
15 draw from the trust fund no sooner than 30 days prior to the
16 date funds are needed to pay for activities associated with
17 development or implementation of the mitigation plan described
18 in subsection (4). A portion of the per-acre funding may be
19 used for support and development of these plans including
20 design, engineering, production, and staff support. Each July
21 1, beginning in 1998, the cost per acre shall be adjusted by
22 the percentage change in the average of the Consumer Price
23 Index issued by the United States Department of Labor for the
24 most recent 12-month period ending September 30, compared to
25 the base year average, which is the average for the 12-month
26 period ending September 30, 1996. At the end of each year,
27 the projected acreage of impact shall be reconciled with the
28 acreage of impact of projects as permitted pursuant to this
29 part and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344, and
30 the following year's transfer of funds shall be adjusted
31 accordingly to reflect the overtransfer or undertransfer of
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1 funds from the preceding year. The Department of Environmental
2 Protection is authorized to transfer such funds from the
3 Ecosystem Management and Restoration Trust Fund to the water
4 management districts to carry out the mitigation programs.
5 (4) Prior to December 31, 1996, each water management
6 district, in consultation with the Department of Environmental
7 Protection, the United States Army Corps of Engineers, and
8 other appropriate federal, state, and local governments, shall
9 develop a plan for the primary purpose of complying with the
10 mitigation requirements adopted pursuant to this part and 33
11 U.S.C. s. 1344. This plan shall also address significant
12 aquatic and exotic plant problems within wetlands and other
13 surface waters. In developing such plans, the districts shall
14 utilize sound ecosystem management practices to address
15 significant water resource needs. In determining the
16 activities to be included in such plans, the districts shall
17 also consider the purchase of credits from public or private
18 mitigation banks permitted under this part and shall include
19 such purchase as a part of the mitigation plan when such
20 purchase would offset the impact of the transportation
21 project, provide equal benefits to the water resources than
22 other mitigation options being considered, and provide the
23 most cost-effective mitigation option. The mitigation plan
24 shall be preliminarily approved by the water management
25 district governing board and shall be submitted to the
26 secretary of the Department of Environmental Protection for
27 review and final approval. The preliminary approval by the
28 water management district governing board does not constitute
29 a decision that affects substantial interests as provided by
30 s. 120.569. At least 30 days prior to preliminary approval,
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1 the water management district shall provide a copy of the
2 draft mitigation plan to any person who has requested a copy.
3 (a) If the Department of Environmental Protection and
4 water management districts are unable to identify mitigation
5 that would offset the impacts of a project included in the
6 inventory, either due to the nature of the impact or the
7 amount of funds available, that project shall not be addressed
8 in the mitigation plan and the project shall not be subject to
9 the provisions of this section.
10 (b) Specific projects may be excluded from the
11 mitigation plan and shall not be subject to this section upon
12 the agreement of the Department of Transportation, the
13 Department of Environmental Protection, and the appropriate
14 water management district that the inclusion of such projects
15 would hamper the efficiency or timeliness of the mitigation
16 planning and permitting process.
17 (c) Those transportation projects that are proposed to
18 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 (d) On July 1, 1996, the Department of Transportation
26 shall transfer to the Department of Environmental Protection
27 $12 million from the State Transportation Trust Fund for the
28 purposes of the surface water improvement management program
29 and to address statewide aquatic and exotic plant problems
30 within wetlands and other surface waters. Such funds shall be
31 considered an advance upon funds that the Department of
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1 Transportation would provide for statewide mitigation during
2 the 1997-1998 through 2004-2005, 1998-1999, and 1999-2000
3 fiscal years. This use of mitigation funds for surface water
4 improvement management projects or aquatic and exotic plant
5 control may be utilized as mitigation for transportation
6 projects to the extent that it complies with the mitigation
7 requirements adopted pursuant to this part and 33 U.S.C. s.
8 1344. To the extent that such activities result in mitigation
9 credit for projects permitted in fiscal year 1996-1997, all or
10 part of the $12 million funding for surface water improvement
11 management projects or aquatic and exotic plant control in
12 fiscal year 1996-1997 shall be drawn from Department of
13 Transportation mitigation funding for fiscal year 1996-1997
14 rather than from mitigation funding for fiscal years 1997-1998
15 through 2004-2005, 1998-1999, and 1999-2000, in an amount
16 equal to the cost per acre of impact described in subsection
17 (3), times the acreage of impact that is mitigated by such
18 plant control activities. Any part of the $12 million that
19 does not result in mitigation credit for projects permitted in
20 fiscal year 1996-1997 shall remain available for mitigation
21 credit during subsequent fiscal years, but no later than the
22 2004-2005 fiscal year 1997-1998, 1998-1999, or 1999-2000.
23 (5) The water management district shall be responsible
24 for ensuring that mitigation requirements pursuant to 33
25 U.S.C. s. 1344 are met for the impacts identified in the
26 inventory described in subsection (2), by implementation of
27 the approved plan described in subsection (4) to the extent
28 funding is provided as funded by the Department of
29 Transportation. During the federal permitting process, the
30 water management district may deviate from the approved
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1 mitigation plan in order to comply with federal permitting
2 requirements.
3 (6) The mitigation plan shall be updated annually to
4 reflect the most current Department of Transportation work
5 program. Each update of the mitigation plan shall be
6 submitted to the secretary of the Department of Environmental
7 Protection for approval as described in subsection (4).
8 However, such approval shall not be applicable to a deviation
9 as described in subsection (5) or subsection (7).
10 (7) In order to anticipate schedule changes or minor
11 projects that may arise, the department and water management
12 district staff may amend the mitigation plans throughout the
13 year and may establish a process for these modifications.
14 Department staff may request legislative funding in
15 anticipation of these changes.
16 (8)(7) Upon approval by the secretary of the
17 Department of Environmental Protection, the mitigation plan
18 shall be deemed to satisfy the mitigation requirements under
19 this part and any other mitigation requirements imposed by
20 local, regional, and state agencies for impacts identified in
21 the inventory described in subsection (2). The approval of
22 the secretary shall authorize the activities proposed in the
23 mitigation plan, and no other state, regional, or local permit
24 or approval shall be necessary.
25 (9)(8) This section shall not be construed to
26 eliminate the need for the Department of Transportation to
27 comply with the requirement to implement practicable design
28 modifications, including realignment of transportation
29 projects, to reduce or eliminate the impacts of its
30 transportation projects on wetlands and other surface waters
31 as required by rules adopted pursuant to this part, or to
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Florida Senate - 1998 SB 986
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1 diminish the authority under this part to regulate other
2 impacts, including water quantity or water quality impacts, or
3 impacts regulated under this part that are not identified in
4 the inventory described in subsection (2).
5 (10)(9) The recommended mitigation plan shall be
6 annually submitted to the Executive Office of the Governor and
7 the Legislature through the legislative budget request of the
8 Department of Environmental Protection in accordance with
9 chapter 216. Any funds not directed to implement the
10 mitigation plan should, to the greatest extent possible, be
11 directed to fund aquatic and exotic plant problems within the
12 wetlands and other surface waters.
13 (10) By December 1, 1997, the Department of
14 Environmental Protection, in consultation with the water
15 management districts, shall submit a report to the Governor,
16 the President of the Senate, and the Speaker of the House of
17 Representatives describing the implementation of this section,
18 including the use of public and private mitigation banks and
19 other types of mitigation approved in the mitigation plan.
20 The report shall also recommend any amendments to this section
21 necessary to improve the process for developing and
22 implementing mitigation plans for the Department of
23 Transportation. The report shall also include a specific
24 section on how private and public mitigation banks are
25 utilized within the mitigation plans.
26 Section 2. This act shall take effect upon becoming a
27 law.
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30 SENATE SUMMARY
31 Authorizes the Department of Transportation to provide the
Department of Environmental Protection and the water
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Florida Senate - 1998 SB 986
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1 management districts with an inventory of environmental
habitats that may be impacted by future transportation
2 projects identified in the adopted work program. Revises
funding requirements for environmental mitigation projects
3 through additional fiscal years. Authorizes the amendment of
environmental mitigation plans.
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