Senate Bill 1804

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    Florida Senate - 1999                                  SB 1804

    By Senator Forman





    32-958B-99

  1                      A bill to be entitled

  2         An act relating to mitigation banking; amending

  3         s. 373.403, F.S.; redefining the term "offsite

  4         regional mitigation"; amending s. 373.4136,

  5         F.S.; requiring the adoption of a uniform

  6         functional assessment methodology rule;

  7         revising standards for determining the

  8         boundaries of a mitigation service area;

  9         providing for the processing of mitigation bank

10         permits; amending s. 373.414, F.S.; requiring a

11         mitigation bank permit before the acceptance of

12         a cash donation in certain instances; providing

13         for consideration of cumulative impacts;

14         providing an effective date.

15

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

17

18         Section 1.  Subsection (22) of section 373.403, Florida

19  Statutes, is amended to read:

20         373.403  Definitions.--When appearing in this part or

21  in any rule, regulation, or order adopted pursuant thereto,

22  the following terms mean:

23         (22)  "Offsite regional mitigation" means mitigation on

24  an area of land off the site of an activity permitted under

25  this part, where an applicant proposes to mitigate the adverse

26  impacts of only the applicant's specific activity as a

27  requirement of the permit, which provides regional ecological

28  value, and which is not a mitigation bank permitted under s.

29  373.4136. Offsite regional mitigation cannot be used to offset

30  impacts from more than one environmental resource permit

31  applicant. Offsite regional mitigation or the use of donated

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  1  moneys to fund offsite regional mitigation cannot be used to

  2  circumvent the permitting requirements of s. 373.4136.

  3         Section 2.  Subsections (4), (6), and (11) of section

  4  373.4136, Florida Statutes, are amended and subsection (12) is

  5  added to that section to read:

  6         373.4136  Establishment and operation of mitigation

  7  banks.--

  8         (4)  MITIGATION CREDITS.--After evaluating the

  9  information submitted by the applicant for a mitigation bank

10  permit and assessing the proposed mitigation bank pursuant to

11  the criteria in this section, the department or water

12  management district shall award a number of mitigation credits

13  to a proposed mitigation bank or phase of such mitigation

14  bank.  An entity establishing and operating a mitigation bank

15  may apply to modify the mitigation bank permit to seek the

16  award of additional mitigation credits if the mitigation bank

17  results in an additional increase in ecological value over the

18  value contemplated at the time of the original permit

19  issuance, or the most recent modification thereto involving

20  the number of credits awarded. The number of credits awarded

21  shall be based on the degree of improvement in ecological

22  value expected to result from the establishment and operation

23  of the mitigation bank as determined using a functional

24  assessment methodology. Each water management district and the

25  department shall adopt a functional assessment methodology by

26  rule no later than May 1, 2000. This functional assessment

27  methodology shall be used by the department and water

28  management districts to award credits and to deduct credits

29  from a mitigation bank. However, an entity that has received a

30  mitigation bank permit before the adoption of the functional

31  assessment methodology shall have credits deducted from its

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  1  bank pursuant to the credit assessment method in place when

  2  the bank was permitted, unless the entity elects to have

  3  credits deducted pursuant to the functional assessment

  4  methodology. Before the adoption of the functional assessment

  5  methodology rule and at the request of the holder of a

  6  mitigation bank permit, impact sites for which credits from

  7  that mitigation bank are proposed for use as mitigation to

  8  offset the impacts must be assessed using the same functional

  9  assessment methodology as that used to assess and assign

10  credits to the mitigation bank, and the environmental resource

11  permit rule mitigation ratios may not be used to determine

12  mitigation bank credit requirements for those impact sites.

13  The functional assessment methodology must, at a minimum,

14  evaluate In determining the degree of improvement in

15  ecological value, each of the following factors, at a minimum,

16  shall be evaluated:

17         (a)  The extent to which target hydrologic regimes can

18  be achieved and maintained.

19         (b)  The extent to which management activities promote

20  natural ecological conditions, such as natural fire patterns.

21         (c)  The proximity of the mitigation bank to areas with

22  regionally significant ecological resources or habitats, such

23  as national or state parks, Outstanding National Resource

24  Waters and associated watersheds, Outstanding Florida Waters

25  and associated watersheds, and lands acquired through

26  governmental or nonprofit land acquisition programs for

27  environmental conservation; and the extent to which the

28  mitigation bank establishes corridors for fish, wildlife, or

29  listed species to those resources or habitats.

30         (d)  The quality and quantity of wetland or upland

31  restoration, enhancement, preservation, or creation.

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  1         (e)  The ecological and hydrological relationship

  2  between wetlands and uplands in the mitigation bank.

  3         (f)  The extent to which the mitigation bank provides

  4  habitat for fish and wildlife, especially habitat for species

  5  listed as threatened, endangered, or of special concern, or

  6  provides habitats that are unique for that mitigation service

  7  area.

  8         (g)  The extent to which the lands that are to be

  9  preserved are already protected by existing state, local, or

10  federal regulations or land use restrictions.

11         (h)  The extent to which lands to be preserved would be

12  adversely affected if they were not preserved.

13         (i)  Any special designation or classification of the

14  affected waters and lands.

15         (6)  MITIGATION SERVICE AREA.--The department or water

16  management district shall establish a mitigation service area

17  for each mitigation bank permit.  The department or water

18  management district shall notify and consider comments

19  received on the proposed mitigation service area from each

20  local government within the proposed mitigation service area

21  that operates a wetlands regulatory program.  Except as

22  provided herein, mitigation credits may be withdrawn and used

23  only to offset adverse impacts in the mitigation service area.

24  The boundaries of the mitigation service area shall depend

25  upon the geographic area where the mitigation bank could

26  reasonably be expected to offset adverse impacts. The

27  boundaries of a mitigation service area shall be guided by the

28  ecosystem management areas set forth in the publication

29  entitled "Ecosystem Management Implementation Strategy" dated

30  September 1995, which is on file with the department. The

31  boundaries of a mitigation service area shall be no smaller

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  1  than the ecosystem management area in which the bank is

  2  located. The boundaries of a mitigation service area may be

  3  larger than the ecosystem management area in which the bank is

  4  located if the mitigation bank provides ecological value to

  5  the extent that adverse impacts outside the ecosystem

  6  management area could reasonably be expected to be offset by

  7  the mitigation bank. A mitigation service area may be larger

  8  than the regional watershed if the mitigation bank provides

  9  exceptional ecological value such that adverse impacts outside

10  the regional watershed could reasonably be expected to be

11  adequately offset by the mitigation bank. A mitigation service

12  area may be smaller than a regional watershed if adverse

13  impacts throughout the regional watershed cannot reasonably be

14  expected to be offset by the mitigation bank because of local

15  ecological or hydrological conditions. Mitigation service

16  areas may overlap, and mitigation service areas for two or

17  more mitigation banks may be approved for an ecosystem

18  management area a regional watershed.

19         (a)  In determining the extent to which a mitigation

20  bank provides exceptional ecological value such that adverse

21  impacts outside the regional ecosystem management area

22  watershed could reasonably be expected to be adequately offset

23  by the mitigation bank, the department or the water management

24  district shall consider the characteristics, size, and

25  location of the mitigation bank and, at a minimum, the extent

26  to which the mitigation bank:

27         1.  Will promote a regional integrated ecological

28  network;

29         2.  Will significantly enhance the water quality or

30  restoration of an offsite receiving water body that is

31  designated as an Outstanding Florida Water, a Wild and Scenic

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  1  River, an aquatic preserve, a water body designated in a plan

  2  adopted pursuant to s. 373.456 of the Surface Water

  3  Improvement and Management Act, or a nationally designated

  4  estuarine preserve;

  5         3.  Will provide for the long-term viability of

  6  endangered or threatened species or species of special

  7  concern; and

  8         4.  Is consistent with the objectives of a regional

  9  management plan adopted or endorsed by the department or water

10  management districts.

11         (b)  Once a mitigation bank service area has been

12  established by the department or a water management district

13  for a mitigation bank, such service area shall be accepted by

14  all water management districts, local governments, and the

15  department.

16         (c)  If the requirements in s. 373.4135(1)(b) are met,

17  the following projects or activities regulated under this part

18  shall be eligible to use a mitigation bank, regardless of

19  whether they are notwithstanding the fact that they are not

20  completely located within that bank's the mitigation service

21  area:

22         1.  Projects with adverse impacts partially located

23  within the mitigation service area.

24         2.  Linear projects, such as roadways, transmission

25  lines, distribution lines, pipelines, or railways.

26         3.  Projects with total adverse impacts of less than 1

27  acre in size.

28         (11)  RULES.--The department and water management

29  district may adopt rules to implement the provisions of s.

30  373.4135 and this section, which shall include, but not be

31  limited to, provisions:

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  1         (a)  Requiring financial responsibility for the

  2  construction, operation, and long-term management of a

  3  mitigation bank;

  4         (b)  For the perpetual protection and management of

  5  mitigation banks; and

  6         (c)  For the use of the uniform functional assessment

  7  methodology referenced in this section Establishing a system

  8  and methodology for the valuation, assessment, and award of

  9  mitigation credits.

10         (12)  PROCESSING.--Mitigation bank permit applications

11  are subject to s. 373.4141.

12         Section 3.  Paragraph (b) of subsection (1) and

13  subsection (8) of section 373.414, Florida Statutes, are

14  amended to read:

15         373.414  Additional criteria for activities in surface

16  waters and wetlands.--

17         (1)  As part of an applicant's demonstration that an

18  activity regulated under this part will not be harmful to the

19  water resources or will not be inconsistent with the overall

20  objectives of the district, the governing board or the

21  department shall require the applicant to provide reasonable

22  assurance that state water quality standards applicable to

23  waters as defined in s. 403.031(13) will not be violated and

24  reasonable assurance that such activity in, on, or over

25  surface waters or wetlands, as delineated in s. 373.421(1), is

26  not contrary to the public interest. However, if such an

27  activity significantly degrades or is within an Outstanding

28  Florida Water, as provided by department rule, the applicant

29  must provide reasonable assurance that the proposed activity

30  will be clearly in the public interest.

31

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  1         (b)  If the applicant is unable to otherwise meet the

  2  criteria set forth in this subsection, the governing board or

  3  the department, in deciding to grant or deny a permit, shall

  4  consider measures proposed by or acceptable to the applicant

  5  to mitigate adverse effects that may be caused by the

  6  regulated activity.  Such measures may include, but are not

  7  limited to, onsite mitigation, offsite mitigation, offsite

  8  regional mitigation, and the purchase of mitigation credits

  9  from mitigation banks permitted under s. 373.4136.  It shall

10  be the responsibility of the applicant to choose the form of

11  mitigation. The mitigation must offset the adverse effects

12  caused by the regulated activity.

13         1.  The department or water management districts may

14  accept the donation of money as mitigation only where the

15  donation is specified for use in a duly noticed environmental

16  creation, preservation, enhancement, or restoration project

17  that has received a mitigation bank permit pursuant to s.

18  373.4136 and that, endorsed by the department or the governing

19  board of the water management district, which offsets the

20  impacts of the activity permitted under this part.  However,

21  the provisions of this subsection shall not apply to projects

22  undertaken pursuant to s. 373.4137 or chapter 378. Local

23  governments may accept the donation of money as mitigation

24  only for impacts authorized under this part if a mitigation

25  bank permit has been issued for the project that is the

26  subject of the cash donation. Where a permit is required under

27  this part to implement any project endorsed by the department

28  or a water management district, all necessary permits must

29  have been issued prior to the acceptance of any cash donation.

30  After the effective date of this act, when money is donated to

31  either the department or a water management district to offset

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  1  impacts authorized by a permit under this part, the department

  2  or the water management district shall accept only a donation

  3  that represents the full cost to the department or water

  4  management district of undertaking the project that is

  5  intended to mitigate the adverse impacts. The full cost shall

  6  include all direct and indirect costs, as applicable, such as

  7  those for land acquisition, land restoration or enhancement,

  8  perpetual land management, and general overhead consisting of

  9  costs such as staff time, building, and vehicles.  The

10  department or the water management district may use a

11  multiplier or percentage to add to other direct or indirect

12  costs to estimate general overhead.  Mitigation credit for

13  such a donation shall be given only to the extent that the

14  donation covers the full cost to the agency of undertaking the

15  project that is intended to mitigate the adverse impacts.

16  However, nothing herein shall be construed to prevent the

17  department or a water management district from accepting a

18  donation representing a portion of a larger project, provided

19  that the donation covers the full cost of that portion and

20  mitigation credit is given only for that portion.  The

21  department or water management district may deviate from the

22  full cost requirements of this subparagraph to resolve a

23  proceeding brought pursuant to chapter 70 or a claim for

24  inverse condemnation.  Nothing in this section shall be

25  construed to require the owner of a private mitigation bank,

26  permitted under s. 373.4136, to include the full cost of a

27  mitigation credit in the price of the credit to a purchaser of

28  said credit.

29         2.  The department and each water management district

30  shall report to the Executive Office of the Governor by

31  January 31 and July 31 of each year all cash donations

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  1  accepted during the preceding 6 months for wetland mitigation

  2  purposes, which shall include a description of the endorsed

  3  mitigation projects.

  4         3.  If the applicant is unable to meet water quality

  5  standards because existing ambient water quality does not meet

  6  standards, the governing board or the department shall

  7  consider mitigation measures proposed by or acceptable to the

  8  applicant that cause net improvement of the water quality in

  9  the receiving body of water for those parameters which do not

10  meet standards.

11         4.  If mitigation requirements imposed by a local

12  government for surface water and wetland impacts of an

13  activity regulated under this part cannot be reconciled with

14  mitigation requirements approved under a permit for the same

15  activity issued under this part, the mitigation requirements

16  for surface water and wetland impacts shall be controlled by

17  the permit issued under this part.

18         (8)  The governing board or the department, in deciding

19  whether to grant or deny a permit for an activity regulated

20  under this part shall consider the cumulative impacts upon

21  surface water and wetlands, as delineated in s. 373.421(1),

22  within the same drainage basin as defined in s. 373.403(9),

23  of:

24         (a)  The activity for which the permit is sought.

25         (b)  Projects which are existing or activities

26  regulated under this part which are under construction or

27  projects for which permits or determinations pursuant to s.

28  373.421 or s. 403.914 have been sought.

29         (c)  Activities which are under review, approved, or

30  vested pursuant to s. 380.06, or other activities regulated

31  under this part which may reasonably be expected to be located

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  1  within surface waters or wetlands, as delineated in s.

  2  373.421(1), in the same drainage basin as defined in s.

  3  373.403(9), based upon the comprehensive plans, adopted

  4  pursuant to chapter 163, of the local governments having

  5  jurisdiction over the activities, or applicable land use

  6  restrictions and regulations.

  7

  8  When a mitigation bank permitted under s. 373.4136 is proposed

  9  as mitigation, and the impacts will occur within the bank's

10  mitigation service area, the cumulative-impacts consideration

11  shall be confined to that bank's mitigation service area and

12  any cumulative impacts shall be considered fully offset by the

13  use of the mitigation bank. Furthermore, use of a mitigation

14  bank to mitigate wetland impacts within the bank's mitigation

15  service area shall not be prohibited due to the bank's

16  location outside the watershed or drainage basin in which the

17  impacts will occur, nor shall greater mitigation be required

18  than if the impact site and the mitigation bank were located

19  in the same watershed or drainage basin.

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

21  law.

22

23            *****************************************

24                          SENATE SUMMARY

25    Provides restrictions on offsite regional mitigation.
      Requires the Department of Environmental Protection and
26    the water management districts to adopt a single uniform
      functional assessment methodology rule to assess
27    mitigation credits. Provides for the processing of
      permits and guidelines for determining the boundaries of
28    mitigation service areas. Requires a mitigation bank
      permit before accepting cash donations in certain cases.
29    Provides for consideration of cumulative impacts.

30

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