Senate Bill 0986c1

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    Florida Senate - 1998                            CS for SB 986

    By the Committee on Natural Resources and Senator Bronson





    312-1767-98

  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         providing that the modification process does

13         not constitute an agency rule; deleting

14         obsolete provisions; providing legislative

15         findings and intent with respect to a

16         mitigation plan for the Dade County Lake Belt

17         Area to offset the impact of mining activities;

18         imposing a fee on the commercial extraction of

19         limerock and sand from the Dade County Lake

20         Belt Area; requiring the proceeds of the fee to

21         be paid to the Department of Revenue; providing

22         for transfer of the fee to the South Florida

23         Water Management District and deposit in a

24         separate interest-bearing account; providing

25         for the Department of Revenue to administer the

26         collection of the fee; authorizing the

27         department to adopt rules; providing for an

28         annual adjustment of the fee rate after a

29         specified date; specifying purposes for which

30         the proceeds of the fee may be used; requiring

31         that expenditures from the trust fund be

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    Florida Senate - 1998                            CS for SB 986
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  1         approved by an interagency committee; providing

  2         for membership of the committee; providing that

  3         payment of the fee satisfies certain

  4         requirements for mitigation; providing for

  5         suspension of imposition of the fee under

  6         certain circumstances; providing an effective

  7         date.

  8

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

10

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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    Florida Senate - 1998                            CS for SB 986
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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 an

  6  inventory of habitats that may be impacted by any future

  7  transportation project identified in the adopted work program.

  8  For the July 1996 submittal, The inventory may exclude those

  9  projects which have received permits pursuant to this part and

10  s. 404 of the Clean Water Act, 33 U.S.C. s. 1344, projects for

11  which mitigation planning or design has commenced, or projects

12  for 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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    Florida Senate - 1998                            CS for SB 986
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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 December 31,

30  1996, each water management district, in consultation with the

31  Department of Environmental Protection, the United States Army

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    Florida Senate - 1998                            CS for SB 986
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  1  Corps of Engineers, and other appropriate federal, state, and

  2  local governments, shall develop a plan for the primary

  3  purpose of complying with the mitigation requirements adopted

  4  pursuant to this part and 33 U.S.C. s. 1344.  This plan shall

  5  also address significant aquatic and exotic plant problems

  6  within wetlands and other surface waters.  In developing such

  7  plans, the districts shall utilize sound ecosystem management

  8  practices to address significant water resource needs.  In

  9  determining the activities to be included in such plans, the

10  districts shall also consider the purchase of credits from

11  public or private mitigation banks permitted under this part

12  and shall include such purchase as a part of the mitigation

13  plan when such purchase would offset the impact of the

14  transportation project, provide equal benefits to the water

15  resources than other mitigation options being considered, and

16  provide the most cost-effective mitigation option.  The

17  mitigation plan shall be preliminarily approved by the water

18  management district governing board and shall be submitted to

19  the secretary of the Department of Environmental Protection

20  for review and final approval. The preliminary approval by the

21  water management district governing board does not constitute

22  a decision that affects substantial interests as provided by

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

24  the water management district shall provide a copy of the

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

26         (a)  If the Department of Environmental Protection and

27  water management districts are unable to identify mitigation

28  that would offset the impacts of a project included in the

29  inventory, either due to the nature of the impact or the

30  amount of funds available, that project shall not be addressed

31

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    Florida Senate - 1998                            CS for SB 986
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  1  in the mitigation plan and the project shall not be subject to

  2  the provisions of this section.

  3         (b)  Specific projects may be excluded from the

  4  environmental impact inventory and the mitigation plan and

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

  6  Department of Transportation, the Department of Environmental

  7  Protection, and the appropriate water management district that

  8  the inclusion of such projects would hamper the efficiency or

  9  timeliness of the mitigation planning and permitting process.

10         (c)  Those transportation projects that are proposed to

11  commence in fiscal year 1996-1997 shall not be addressed in

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

13  shall not apply to these projects.  The Department of

14  Transportation may enter into interagency agreements with the

15  Department of Environmental Protection or any water management

16  district to perform mitigation planning and implementation for

17  these projects.

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

19  transferred shall transfer to the Department of Environmental

20  Protection $12 million from the State Transportation Trust

21  Fund for the purposes of the surface water improvement

22  management program and to address statewide aquatic and exotic

23  plant problems within wetlands and other surface waters.  Such

24  funds shall be considered an advance upon funds that the

25  Department of Transportation would provide for statewide

26  mitigation during the 1997-1998 through 2004-2005, 1998-1999,

27  and 1999-2000 fiscal years.  This use of mitigation funds for

28  surface water improvement management projects or aquatic and

29  exotic plant control may be utilized as mitigation for

30  transportation projects to the extent that it complies with

31  the mitigation requirements adopted pursuant to this part and

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    Florida Senate - 1998                            CS for SB 986
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  1  33 U.S.C. s. 1344. Any surface water improvement and

  2  management or aquatic or exotic plant control projects

  3  undertaken using the $12-million advance which do not result

  4  in mitigation credit for impacts addressed in the mitigation

  5  plan for fiscal year 1996-1997 shall remain available for

  6  mitigation credit during subsequent fiscal years up to and

  7  including fiscal year 2004-2005, and, when used as mitigation,

  8  the $12-million advance shall be reduced by $75,000 per acre

  9  of impact mitigated. For any fiscal year through and including

10  fiscal year 2004-2005, after reducing the $12-million advance

11  pursuant to the preceding sentence, then to the extent that

12  the costs of developing and implementing the mitigation plans

13  developed by the water management districts is less than the

14  amount transferred from the Department of Transportation to

15  the Department of Environmental Protection pursuant to

16  subsection (3), the difference for that fiscal year shall be

17  credited towards the $12-million advance.  To the extent that

18  such activities result in mitigation credit for projects

19  permitted in fiscal year 1996-1997, all or part of the $12

20  million funding for surface water improvement management

21  projects or aquatic and exotic plant control in fiscal year

22  1996-1997 shall be drawn from Department of Transportation

23  mitigation funding for fiscal year 1996-1997 rather than from

24  mitigation funding for fiscal years 1997-1998, 1998-1999, and

25  1999-2000, in an amount equal to the cost per acre of impact

26  described in subsection (3), times the acreage of impact that

27  is mitigated by such plant control activities.  Any part of

28  the $12 million that does not result in mitigation credit for

29  projects permitted in fiscal year 1996-1997 shall remain

30  available for mitigation credit during fiscal years 1997-1998,

31  1998-1999, or 1999-2000.

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  1         (5)  The water management district shall be responsible

  2  for ensuring that mitigation requirements pursuant to 33

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

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

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

  6  funding is provided as funded by the Department of

  7  Transportation.  During the federal permitting process, the

  8  water management district may deviate from the approved

  9  mitigation plan in order to comply with federal permitting

10  requirements.

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

12  reflect the most current Department of Transportation work

13  program.  Each update of the mitigation plan shall be

14  submitted to the secretary of the Department of Environmental

15  Protection for approval as described in subsection (4).

16  However, such approval shall not be applicable to a deviation

17  as described in subsection (5) or subsection (7).

18         (7)  In order to anticipate schedule changes or

19  additional projects that may arise, the department and water

20  management district staff may amend the mitigation plans

21  throughout the year and may establish a process for these

22  modifications. The process for these modifications does not

23  constitute a rule within the meaning of s. 120.52. Department

24  staff may request legislative funding in anticipation of these

25  changes.

26         (8)(7)  Upon approval by the secretary of the

27  Department of Environmental Protection, the mitigation plan

28  shall be deemed to satisfy the mitigation requirements under

29  this part and any other mitigation requirements imposed by

30  local, regional, and state agencies for impacts identified in

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

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    Florida Senate - 1998                            CS for SB 986
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  1  the secretary shall authorize the activities proposed in the

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

  3  or approval shall be necessary.

  4         (9)(8)  This section shall not be construed to

  5  eliminate the need for the Department of Transportation to

  6  comply with the requirement to implement practicable design

  7  modifications, including realignment of transportation

  8  projects, to reduce or eliminate the impacts of its

  9  transportation projects on wetlands and other surface waters

10  as required by rules adopted pursuant to this part, or to

11  diminish the authority under this part to regulate other

12  impacts, including water quantity or water quality impacts, or

13  impacts regulated under this part that are not identified in

14  the inventory described in subsection (2).

15         (10)(9)  The recommended mitigation plan shall be

16  annually submitted to the Executive Office of the Governor and

17  the Legislature through the legislative budget request of the

18  Department of Environmental Protection in accordance with

19  chapter 216.  Any funds not directed to implement the

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

21  directed to fund aquatic and exotic plant problems within the

22  wetlands and other surface waters.

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

24  Environmental Protection, in consultation with the water

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

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

27  Representatives describing the implementation of this section,

28  including the use of public and private mitigation banks and

29  other types of mitigation approved in the mitigation plan.

30  The report shall also recommend any amendments to this section

31  necessary to improve the process for developing and

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  1  implementing mitigation plans for the Department of

  2  Transportation.  The report shall also include a specific

  3  section on how private and public mitigation banks are

  4  utilized within the mitigation plans.

  5         Section 2.  Dade County Lake Belt Mitigation Plan;

  6  mitigation for mining activities within the Dade County Lake

  7  Belt.--

  8         (1)  The Legislature finds that the impact of mining

  9  within the Dade County Lake Belt Area is offset by a

10  mitigation plan that is designated the "Lake Belt Mitigation

11  Plan." The per-ton fee assessed on limestone sold from the

12  Dade County Lake Belt Area shall be used for acquiring

13  environmentally sensitive lands and for restoration,

14  maintenance, and other environmental purposes. Further, the

15  Legislature finds that the public benefit of a sustainable

16  supply of limestone construction materials for public and

17  private projects requires a coordinated approach to permitting

18  activities on wetlands within the Dade County Lake Belt in

19  order to provide the certainty necessary to encourage

20  substantial and continued investment in the limestone

21  processing plant and equipment required to efficiently extract

22  the limestone resource. It is the intent of the Legislature

23  that the Lake Belt Mitigation Plan satisfy all local, state,

24  and federal requirements for mining activity within the Dade

25  County Lake Belt Area.

26         (2)  To provide for the mitigation of wetland resources

27  lost to mining activities within the Dade County Lake Belt

28  Area, effective January 1, 1999, a fee is imposed on each ton

29  of limerock and sand extracted by any person who engages in

30  the business of extracting limerock or sand from within the

31  Dade County Lake Belt Area. The fee is at the rate of 4.41

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  1  cents for each ton of limerock and sand sold from within the

  2  Dade County Lake Belt Area in raw, processed, or manufactured

  3  form, including, but not limited to, sized aggregate, cement,

  4  concrete, and concrete products. Any limerock or sand that is

  5  used within the mine from which the limerock or sand is

  6  extracted is exempt from the fee. The amount of the fee

  7  imposed under this section must be stated separately on the

  8  invoice provided to the purchaser. The proceeds of the fee

  9  must be paid to the Department of Revenue on or before the

10  20th day of the month following the calendar month in which

11  the sale occurs.

12         (3)  The fee imposed by this section must be reported

13  to the Department of Revenue. Payment of the fee must be

14  accompanied by a form prescribed by the Department of Revenue.

15  The proceeds of the fee, less administrative costs, must be

16  transferred by the Department of Revenue to the South Florida

17  Water Management District and deposited into an

18  interest-bearing account to be maintained separately and not

19  commingled with other funds. As used in this section, the term

20  "proceeds of the fee" means all funds collected and received

21  by the Department of Revenue under this section, including

22  interest and penalties on delinquent fees. The amount deducted

23  for administrative costs may not exceed 3 percent of the total

24  revenues collected under this section and may equal only those

25  administrative costs reasonably attributable to the fee.

26         (4)(a)  The Department of Revenue shall administer,

27  collect, and enforce the fee authorized under this section in

28  accordance with the procedures used to administer, collect,

29  and enforce the general sales tax imposed under chapter 212,

30  Florida Statutes. The provisions of chapter 212, Florida

31  Statutes, with respect to the authority of the Department of

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  1  Revenue to audit and make assessments, the keeping of books

  2  and records, and the interest and penalties imposed on

  3  delinquent fees apply to this section. The fee may not be

  4  included in computing estimated taxes under section 212.11,

  5  Florida Statutes, and the dealer's credit for collecting taxes

  6  or fees provided for in section 212.12, Florida Statutes, does

  7  not apply to the fee imposed by this section.

  8         (b)  In administering this section, the Department of

  9  Revenue may employ persons and incur expenses for which funds

10  are appropriated by the Legislature. The Department of Revenue

11  shall adopt rules and prescribe and publish forms necessary to

12  administer this section. The Department of Revenue shall

13  establish audit procedures and may assess delinquent fees.

14         (5)  Beginning July 1, 2000, and each July 1

15  thereafter, the per-ton fee shall be adjusted by the

16  percentage change in the average of the Consumer Price Index

17  issued by the United States Department of Labor for the most

18  recent 12-month period ending on September 30, and the

19  percentage change in the Producer's Price Index for Net Output

20  of Crushed and Broken Stone, South Atlantic Region, issued by

21  the United States Department of Labor for the most recent

22  12-month period ending on September 30, compared to the

23  average of these indexes for the base year, which is the

24  12-month period ending on September 30, 1999.

25         (6)(a)  The proceeds of the fee must be used to conduct

26  mitigation activities that are appropriate to offset the loss

27  of the value and functions of wetlands as a result of mining

28  activities in the Dade County Lake Belt Area and must be used

29  in a manner consistent with the recommendations contained in

30  the reports submitted to the Legislature by the Dade County

31  Lake Belt Plan Implementation Committee and adopted under

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  1  section 373.4149, Florida Statutes. Such mitigation may

  2  include the purchase, enhancement, restoration, and management

  3  of wetlands and uplands and may also include structural

  4  modifications to the existing drainage system to enhance the

  5  hydrology of the Dade County Lake Belt Area. Funds may also be

  6  used to reimburse other funding sources, including the Save

  7  Our Rivers Land Acquisition Program and the Internal

  8  Improvement Trust Fund, for the purchase of lands that were

  9  acquired in areas appropriate for mitigation due to rock

10  mining and to reimburse governmental agencies that exchanged

11  land under section 373.4149, Florida Statutes, for mitigation

12  due to rock mining.

13         (b)  Expenditures must be approved by an interagency

14  committee that consists of representatives from the Miami-Dade

15  County Department of Environmental Resource Management, the

16  Department of Environmental Protection, the South Florida

17  Water Management District, the Game and Fresh Water Fish

18  Commission, and, at the discretion of the committee,

19  additional members who represent federal regulatory,

20  environmental, and fish and wildlife agencies and

21  representatives of the limestone industry.

22         (7)  Payment of the fee imposed by this section

23  satisfies the mitigation requirements imposed under sections

24  373.403-373.439, Florida Statutes, and any applicable county

25  ordinance for loss of the value and functions of wetlands. In

26  addition, it is the intent of the Legislature that the payment

27  of the fee imposed by this section satisfy all federal

28  mitigation requirements.

29         (8)  If a general permit by the United States Army

30  Corps of Engineers, or an appropriate long-term permit for

31  mining, issued on or before September 30, 2000, is

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  1  inconsistent with the Dade County Lake Belt Plan, this

  2  section, and sections 378.4115, 373.4149, and 373.4415,

  3  Florida Statutes, the fee imposed by this section is suspended

  4  until reenacted by the Legislature.

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

  6  law.

  7

  8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  9                              SB 986

10

11  The committee substitute makes a number of largely technical
    changes intended to clarify the provisions relating to the
12  one-time $12 million payment utilized in 1996 and the uses
    which would satisfy cancelling this debt. Certain obsolete
13  provisions are deleted.

14  Similar provisions to those in SB 1988, relating to the Dade
    County Lake Belt Mitigation Plan, are added to this bill.
15  Provides that a 4.41 cent per-ton fee be assessed on each ton
    of limerock and sand extracted within the Dade County Lake
16  Belt Area. The fee is to be used for acquiring environmentally
    sensitive lands and for restoration, maintenance, and other
17  environmental purposes.

18  The Department of Revenue shall administer, collect, and
    enforce the fee. The proceeds of the fee, less administrative
19  costs, must be transferred by the Department of Revenue to the
    South Florida Water Management District and deposited into an
20  interest-bearing account to be maintained separately and not
    commingled with other funds.
21
    Provides for future adjustment of the fee. Provides for
22  suspension of the fee under certain conditions.

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