Senate Bill 2162
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Florida Senate - 2000 SB 2162
By Senator Forman
32-852-00
1 A bill to be entitled
2 An act relating to mitigation banking; amending
3 s. 373.4135, F.S.; specifying what must be
4 included in a memorandum of agreement required
5 for publicly sponsored offsite regional
6 mitigation; amending s. 373.414, F.S.;
7 requiring the Department of Environmental
8 Protection and the water management districts
9 to adopt a uniform functional assessment
10 methodology for public or private mitigation
11 banking; directing the department to conduct a
12 comprehensive study of cumulative-impact
13 analysis and report its results to the Governor
14 and the Legislature; providing an effective
15 date.
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17 Be It Enacted by the Legislature of the State of Florida:
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19 Section 1. Subsection (6) is added to section
20 373.4135, Florida Statutes, to read:
21 373.4135 Mitigation banks and offsite regional
22 mitigation.--
23 (6) Any publicly sponsored offsite regional mitigation
24 that is authorized to offset impacts under this part must
25 operate under a memorandum of agreement specifying the duties
26 and responsibilities of all parties involved in the publicly
27 sponsored offsite mitigation. At a minimum, this memorandum of
28 agreement must include the following:
29 (a) Specification of the work that will be conducted
30 on the site;
31 (b) When the work will be completed;
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Florida Senate - 2000 SB 2162
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1 (c) Environmental success criteria;
2 (d) Monitoring and long-term management requirements
3 of the site;
4 (e) A requirement that the site be subject to the
5 uniform functional assessment methodology;
6 (f) Designation of the party responsible for the
7 successful completion of the mitigation work;
8 (g) A definition of the geographic area where
9 mitigation can occur;
10 (h) Full cost accounting of the project, including
11 annual review and adjustment of the accounting and periodic
12 outside audits thereof;
13 (i) Provision and timetable for the acquistion of
14 lands necessary for the mitigation site;
15 (j) Provision for perpetual protection of the site;
16 (k) The application of all moneys received solely to
17 the project for which they were collected; and
18 (l) Provision for termination of the agreement if any
19 material contingency of the agreement has failed to occur.
20 Section 2. Paragraph (b) of subsection (1) of section
21 373.414, Florida Statutes, is amended, and subsection (19) is
22 added to that section to read:
23 373.414 Additional criteria for activities in surface
24 waters and wetlands.--
25 (1) As part of an applicant's demonstration that an
26 activity regulated under this part will not be harmful to the
27 water resources or will not be inconsistent with the overall
28 objectives of the district, the governing board or the
29 department shall require the applicant to provide reasonable
30 assurance that state water quality standards applicable to
31 waters as defined in s. 403.031(13) will not be violated and
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Florida Senate - 2000 SB 2162
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1 reasonable assurance that such activity in, on, or over
2 surface waters or wetlands, as delineated in s. 373.421(1), is
3 not contrary to the public interest. However, if such an
4 activity significantly degrades or is within an Outstanding
5 Florida Water, as provided by department rule, the applicant
6 must provide reasonable assurance that the proposed activity
7 will be clearly in the public interest.
8 (b) If the applicant is unable to otherwise meet the
9 criteria set forth in this subsection, the governing board or
10 the department, in deciding to grant or deny a permit, shall
11 consider measures proposed by or acceptable to the applicant
12 to mitigate adverse effects that may be caused by the
13 regulated activity. Such measures may include, but are not
14 limited to, onsite mitigation, offsite mitigation, offsite
15 regional mitigation, and the purchase of mitigation credits
16 from mitigation banks permitted under s. 373.4136. It shall
17 be the responsibility of the applicant to choose the form of
18 mitigation. The mitigation must offset the adverse effects
19 caused by the regulated activity.
20 1. The department or water management districts may
21 accept the donation of money as mitigation only where the
22 donation is specified for use in a duly noticed environmental
23 creation, preservation, enhancement, or restoration project,
24 endorsed by the department or the governing board of the water
25 management district, which offsets the impacts of the activity
26 permitted under this part. However, the provisions of this
27 subsection shall not apply to projects undertaken pursuant to
28 s. 373.4137 or chapter 378. Where a permit is required under
29 this part to implement any project endorsed by the department
30 or a water management district, all necessary permits must
31 have been issued prior to the acceptance of any cash donation.
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1 After the effective date of this act, when money is donated to
2 either the department or a water management district to offset
3 impacts authorized by a permit under this part, the department
4 or the water management district shall accept only a donation
5 that represents the full cost to the department or water
6 management district of undertaking the project that is
7 intended to mitigate the adverse impacts. The full cost shall
8 include all direct and indirect costs, as applicable, such as
9 those for land acquisition, land restoration or enhancement,
10 perpetual land management, and general overhead consisting of
11 costs such as staff time, building, and vehicles. The
12 department or the water management district may use a
13 multiplier or percentage to add to other direct or indirect
14 costs to estimate general overhead. Mitigation credit for
15 such a donation shall be given only to the extent that the
16 donation covers the full cost to the agency of undertaking the
17 project that is intended to mitigate the adverse impacts.
18 However, nothing herein shall be construed to prevent the
19 department or a water management district from accepting a
20 donation representing a portion of a larger project, provided
21 that the donation covers the full cost of that portion and
22 mitigation credit is given only for that portion. The
23 department or water management district may deviate from the
24 full cost requirements of this subparagraph to resolve a
25 proceeding brought pursuant to chapter 70 or a claim for
26 inverse condemnation. Nothing in this section shall be
27 construed to require the owner of a private mitigation bank,
28 permitted under s. 373.4136, to include the full cost of a
29 mitigation credit in the price of the credit to a purchaser of
30 said credit.
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1 2. The department and each water management district
2 shall report to the Executive Office of the Governor by
3 January 31 and July 31 of each year all cash donations
4 accepted during the preceding 6 months for wetland mitigation
5 purposes, which shall include a description of the endorsed
6 mitigation projects.
7 3. If the applicant is unable to meet water quality
8 standards because existing ambient water quality does not meet
9 standards, the governing board or the department shall
10 consider mitigation measures proposed by or acceptable to the
11 applicant that cause net improvement of the water quality in
12 the receiving body of water for those parameters which do not
13 meet standards.
14 4. If mitigation requirements imposed by a local
15 government for surface water and wetland impacts of an
16 activity regulated under this part cannot be reconciled with
17 mitigation requirements approved under a permit for the same
18 activity issued under this part, the mitigation requirements
19 for surface water and wetland impacts shall be controlled by
20 the permit issued under this part.
21 5. The department and each water management district
22 shall adopt a single uniform functional assessment methodology
23 by rule by July 1, 2001. The department and water management
24 districts shall use the uniform functional assessment
25 methodology to assess impacts, award credits, and deduct
26 credits from any public or private mitigation bank or offsite
27 regional mitigation area. The uniform functional assessment
28 methodology may account for particular ecological communities
29 through the state. The uniform functional assessment
30 methodology is the exclusive mechanism for determining credit
31 requirements for mitigation banks or offsite regional
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1 mitigation areas, notwithstanding any rule or statute to the
2 contrary. However, any entity that has received a mitigation
3 bank permit before the adoption of the uniform assessment
4 methodology may have bank credits deducted under the authority
5 of the credit assessment methodology existing when then bank
6 was permitted. However, after July 1, 2001, any permitted
7 entity may elect to have credits deducted under the authority
8 of the uniform assessment methodology.
9 (19) The department shall conduct a comprehensive
10 study of cumulative-impact analysis. The cumulative-impact
11 study, as recommended in the Office for Program Policy and
12 Government Accountability's Report entitled, "Wetland
13 Mitigation," must examine cumulative-impact criteria in light
14 of larger environmental permitting issues. The scope of the
15 study must address the justification for cumulative-impact
16 analysis; whether a practical, consistent, and equitable
17 methodology can be developed for assessing cumulative impacts,
18 and if cumulative-impact analysis fits into broader
19 environmental and economic growth management goals.
20 (a) The department shall convene a broadly
21 representative group of key stakeholders in the public and
22 private sectors to provide technical guidance and advice to
23 the study. The department shall report the results of this
24 study to the Governor and the Legislature by July 1, 2001.
25 (b) Because of the regional benefits of permitted
26 mitigation banks and offsite regional mitigation, if the
27 mitigation offsets the impacts of the activity regulated under
28 this part as required by paragraph (1)(b), any cumulative
29 impacts associated with the activity are presumed acceptable
30 if the mitigation for that activity is located within the same
31 mitigation service area as the impact. Cumulative-impacts
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1 consideration by the department and the water management
2 districts is exclusively governed by this subsection pending
3 the outcome of the cumulative-impact study required by this
4 subsection.
5 Section 3. This act shall take effect upon becoming a
6 law.
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9 SENATE SUMMARY
10 Provides requirements for a memorandum of agreement that
is required for publicly sponsored offsite regional
11 mitigation. Provides for a uniform functional assessment
methodology for wetlands mitigation. Directs the
12 Department of Environmental Protection to conduct a study
of cumulative-impact analysis.
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