Senate Bill 2162e1
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 A bill to be entitled
2 An act relating to mitigation; amending s.
3 373.4135, F.S.; requiring a memorandum of
4 agreement under certain conditions; amending s.
5 373.4136, F.S.; revising provisions relating to
6 the size of the mitigation service area;
7 providing for use of regional watersheds to
8 guide the establishment of mitigation service
9 areas; requiring satisfaction of cumulative
10 impact considerations; providing rulemaking
11 authority; providing that mitigation bank
12 permit applications are subject to certain
13 established processing procedures; amending s.
14 373.414, F.S.; revising reporting provisions
15 relating to money donated as wetlands
16 mitigation; requiring the Department of
17 Environmental Protection and certain water
18 management districts to adopt a single uniform
19 functional assessment methodology, by rule, by
20 a specified date; directing local government
21 use of the methodology; providing conditions
22 and procedures for use of the methodology;
23 directing a study by the Office of Program
24 Policy Analysis and Governmental Accountability
25 on cumulative impacts; providing an effective
26 date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Subsections (6) and (7) are added to
31 section 373.4135, Florida Statutes, to read:
1
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 373.4135 Mitigation banks and offsite regional
2 mitigation.--
3 (6) An environmental creation, preservation,
4 enhancement, or restoration project, including regional
5 offsite mitigation areas, for which money is donated or paid
6 as mitigation, which is sponsored by the department, a water
7 management district, or a local government and which provides
8 mitigation for five or more applicants for permits under this
9 part, or 35 or more acres of adverse impacts, shall be
10 established and operated under a memorandum of agreement. Such
11 memorandum of agreement need not be adopted by rule. The
12 memorandum of agreement shall be between the governmental
13 entity proposing the mitigation project and the department or
14 water management district, as appropriate. For the purposes of
15 this subsection, one creation, preservation, enhancement, or
16 restoration project shall mean one or more parcels of land
17 with similar ecological communities which are intended to be
18 created, preserved, enhanced, or restored under a common
19 scheme.
20 (a) For ongoing creation, preservation, enhancement,
21 or restoration projects and regional offsite mitigation areas
22 sponsored by the department, a water management district, or a
23 local government, and for which money was or is paid as
24 mitigation, which were begun prior to the effective date of
25 this subsection, and which have operated as of the effective
26 date of this subsection, or are anticipated to operate, in
27 excess of the thresholds listed above, the governmental entity
28 sponsoring such project shall submit a draft memorandum of
29 agreement to the water management district or department by
30 October 1, 2000. The governmental entity sponsoring such
31 project shall make reasonable efforts to obtain the final
2
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 signed memorandum of agreement within 1 year after submittal.
2 The governmental entity sponsoring the project may continue to
3 receive moneys donated or paid toward the project as
4 mitigation if the provisions of this paragraph are met.
5 (b) The memorandum of agreement shall establish
6 criteria that each environmental creation, preservation,
7 enhancement, or restoration project must meet. These criteria
8 must address the elements listed in paragraph (c). The entity
9 sponsoring such project or categories of projects shall submit
10 documentation or other evidence to the water management
11 district or department that the project meets, or individual
12 projects within that category meet, the specified criteria.
13 (c) At a minimum, the memorandum of agreement must
14 address the following for each project authorized:
15 1. A description of the work that will be conducted on
16 the site and timeline for completion of such work;
17 2. A timeline for obtaining any required environmental
18 resource permit;
19 3. The environmental success criteria that the project
20 must achieve;
21 4. The monitoring and long-term management
22 requirements that must be undertaken for the project;
23 5. An assessment of the project in accordance with s.
24 373.4136(4)(a)-(i), until the adoption of the uniform wetland
25 mitigation assessment method pursuant to s. 373.414(18);
26 6. A designation of the entity responsible for the
27 successful completion of the mitigation work;
28 7. A definition of the geographic area where the
29 project may be used as a mitigation established using the
30 criteria of s. 373.4136(6);
31
3
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 8. Full cost accounting of the project, including
2 annual review and adjustment;
3 9. Provision and timetable for the acquisition of any
4 lands necessary for the project;
5 10. Provision for preservation of the site;
6 11. Provision for application of all moneys received
7 solely to the project for which they were collected; and
8 12. Provision for termination of the agreement and
9 cessation of use of the project as mitigation if any material
10 contingency of the agreement has failed to occur.
11 (d) A single memorandum of agreement may authorize
12 more than one environmental creation, preservation,
13 enhancement, or restoration projects or categories of projects
14 if the elements in paragraph (c) are met for each project.
15 (e) Projects governed by this subsection, except for
16 projects established pursuant to s. 373.4137(7), are subject
17 to s. 373.414(1)(b)1.
18 (f) This subsection does not apply to mitigation areas
19 established to implement s. 373.4137.
20 (g) This subsection does not apply if the department,
21 water management district, or local government establishes, or
22 contracts with a private entity to establish, a mitigation
23 bank permitted under s. 373.4136. This subsection does not
24 apply to other entities that establish offsite regional
25 mitigation as defined in this section and s. 373.403.
26 (7) The department, water management districts, and
27 local governments may elect to establish and manage mitigation
28 sites, including regional offsite mitigation areas, or
29 contract with permitted mitigation banks to provide mitigation
30 options for private single-family lots or homeowners. The
31 department, water management districts, and local governments
4
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 shall provide a written notice of their election under this
2 subsection by United States mail to those individuals who have
3 requested, in writing, to receive such notice. The use of
4 mitigation options established under this section are not
5 subject to the full-cost accounting provision of s.
6 373.414(1)(b)1. To use a mitigation option established under
7 this section, the applicant for a permit under this part must
8 be a private, single-family lot or homeowner, and the land
9 upon which the adverse impact is located must be intended for
10 use as a single-family residence by the current owner. The
11 applicant must not be a corporation, partnership, or other
12 business entity. However, this subsection does not apply to
13 other entities that establish offsite regional mitigation as
14 defined in this section and s. 373.403.
15 Section 2. Subsection (6) of section 373.4136, Florida
16 Statutes, is amended to read:
17 373.4136 Establishment and operation of mitigation
18 banks.--
19 (6) MITIGATION SERVICE AREA.--The department or water
20 management district shall establish a mitigation service area
21 for each mitigation bank permit. The department or water
22 management district shall notify and consider comments
23 received on the proposed mitigation service area from each
24 local government within the proposed mitigation service area
25 that operates a wetlands regulatory program. Except as
26 provided herein, mitigation credits may be withdrawn and used
27 only to offset adverse impacts in the mitigation service area.
28 The boundaries of the mitigation service area shall depend
29 upon the geographic area where the mitigation bank could
30 reasonably be expected to offset adverse impacts. A mitigation
31 service area may be larger than the regional watershed if the
5
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 mitigation bank provides exceptional ecological value such
2 that adverse impacts outside the regional watershed could
3 reasonably be expected to be adequately offset by the
4 mitigation bank. A mitigation service area may be smaller than
5 a regional watershed if adverse impacts throughout the
6 regional watershed cannot reasonably be expected to be offset
7 by the mitigation bank because of local ecological or
8 hydrological conditions. Mitigation service areas may overlap,
9 and mitigation service areas for two or more mitigation banks
10 may be approved for a regional watershed.
11 (a) In determining the boundaries of the mitigation
12 service area extent to which a mitigation bank provides
13 exceptional ecological value such that adverse impacts outside
14 the regional watershed could reasonably be expected to be
15 adequately offset by the mitigation bank, the department or
16 the water management district shall consider the
17 characteristics, size, and location of the mitigation bank
18 and, at a minimum, the extent to which the mitigation bank:
19 1. Contributes to Will promote a regional integrated
20 ecological network;
21 2. Will significantly enhance the water quality or
22 restoration of an offsite receiving water body that is
23 designated as an Outstanding Florida Water, a Wild and Scenic
24 River, an aquatic preserve, a water body designated in a plan
25 adopted pursuant to s. 373.456 of the Surface Water
26 Improvement and Management Act, or a nationally designated
27 estuarine preserve;
28 3. Will provide for the long-term viability of
29 endangered or threatened species or species of special
30 concern; and
31
6
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 4. Is consistent with the objectives of a regional
2 management plan adopted or endorsed by the department or water
3 management districts; and.
4 5. Can reasonably be expected to offset specific types
5 of wetland impacts within a specific geographic area. A
6 mitigation bank need not be able to offset all expected
7 impacts within its service area.
8 (b) The department and water management districts
9 shall use regional watersheds to guide the establishment of
10 mitigation service areas. Drainage basins established pursuant
11 to s. 373.414(8) may be used as regional watersheds if they
12 are established based on the hydrologic or ecological
13 characteristics of the basin. A mitigation service area may
14 extend beyond the regional watershed in which the bank is
15 located into all or part of other regional watersheds if the
16 mitigation bank has the ability to offset adverse impacts
17 outside that regional watershed. Similarly, a mitigation
18 service area may be smaller than the regional watershed in
19 which the mitigation bank is located if adverse impacts
20 throughout the regional watershed cannot reasonably be
21 expected to be offset by the mitigation bank because of local
22 ecological or hydrological conditions.
23 (c)(b) Once a mitigation bank service area has been
24 established by the department or a water management district
25 for a mitigation bank, such service area shall be accepted by
26 all water management districts, local governments, and the
27 department.
28 (d)(c) If the requirements in ss. 373.414(1)(b) and
29 373.414(8) s. 373.4135(1)(b) are met, the following projects
30 or activities regulated under this part shall be eligible to
31 use a mitigation bank, regardless of whether notwithstanding
7
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 the fact that they are not completely located within the
2 mitigation service area:
3 1. Projects with adverse impacts partially located
4 within the mitigation service area.
5 2. Linear projects, such as roadways, transmission
6 lines, distribution lines, pipelines, or railways.
7 3. Projects with total adverse impacts of less than 1
8 acre in size.
9 Section 3. Subsections (1), (8), and (18) of section
10 373.414, Florida Statutes, are amended, and subsection (19) is
11 added to that section, to read:
12 373.414 Additional criteria for activities in surface
13 waters and wetlands.--
14 (1) As part of an applicant's demonstration that an
15 activity regulated under this part will not be harmful to the
16 water resources or will not be inconsistent with the overall
17 objectives of the district, the governing board or the
18 department shall require the applicant to provide reasonable
19 assurance that state water quality standards applicable to
20 waters as defined in s. 403.031(13) will not be violated and
21 reasonable assurance that such activity in, on, or over
22 surface waters or wetlands, as delineated in s. 373.421(1), is
23 not contrary to the public interest. However, if such an
24 activity significantly degrades or is within an Outstanding
25 Florida Water, as provided by department rule, the applicant
26 must provide reasonable assurance that the proposed activity
27 will be clearly in the public interest.
28 (a) In determining whether an activity, which is in,
29 on, or over surface waters or wetlands, as delineated in s.
30 373.421(1), and is regulated under this part, is not contrary
31 to the public interest or is clearly in the public interest,
8
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 the governing board or the department shall consider and
2 balance the following criteria:
3 1. Whether the activity will adversely affect the
4 public health, safety, or welfare or the property of others;
5 2. Whether the activity will adversely affect the
6 conservation of fish and wildlife, including endangered or
7 threatened species, or their habitats;
8 3. Whether the activity will adversely affect
9 navigation or the flow of water or cause harmful erosion or
10 shoaling;
11 4. Whether the activity will adversely affect the
12 fishing or recreational values or marine productivity in the
13 vicinity of the activity;
14 5. Whether the activity will be of a temporary or
15 permanent nature;
16 6. Whether the activity will adversely affect or will
17 enhance significant historical and archaeological resources
18 under the provisions of s. 267.061; and
19 7. The current condition and relative value of
20 functions being performed by areas affected by the proposed
21 activity.
22 (b) If the applicant is unable to otherwise meet the
23 criteria set forth in this subsection, the governing board or
24 the department, in deciding to grant or deny a permit, shall
25 consider measures proposed by or acceptable to the applicant
26 to mitigate adverse effects that may be caused by the
27 regulated activity. Such measures may include, but are not
28 limited to, onsite mitigation, offsite mitigation, offsite
29 regional mitigation, and the purchase of mitigation credits
30 from mitigation banks permitted under s. 373.4136. It shall
31 be the responsibility of the applicant to choose the form of
9
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 mitigation. The mitigation must offset the adverse effects
2 caused by the regulated activity.
3 1. The department or water management districts may
4 accept the donation of money as mitigation only where the
5 donation is specified for use in a duly noticed environmental
6 creation, preservation, enhancement, or restoration project,
7 endorsed by the department or the governing board of the water
8 management district, which offsets the impacts of the activity
9 permitted under this part. However, the provisions of this
10 subsection shall not apply to projects undertaken pursuant to
11 s. 373.4137 or chapter 378. Where a permit is required under
12 this part to implement any project endorsed by the department
13 or a water management district, all necessary permits must
14 have been issued prior to the acceptance of any cash donation.
15 After the effective date of this act, when money is donated to
16 either the department or a water management district to offset
17 impacts authorized by a permit under this part, the department
18 or the water management district shall accept only a donation
19 that represents the full cost to the department or water
20 management district of undertaking the project that is
21 intended to mitigate the adverse impacts. The full cost shall
22 include all direct and indirect costs, as applicable, such as
23 those for land acquisition, land restoration or enhancement,
24 perpetual land management, and general overhead consisting of
25 costs such as staff time, building, and vehicles. The
26 department or the water management district may use a
27 multiplier or percentage to add to other direct or indirect
28 costs to estimate general overhead. Mitigation credit for
29 such a donation shall be given only to the extent that the
30 donation covers the full cost to the agency of undertaking the
31 project that is intended to mitigate the adverse impacts.
10
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 However, nothing herein shall be construed to prevent the
2 department or a water management district from accepting a
3 donation representing a portion of a larger project, provided
4 that the donation covers the full cost of that portion and
5 mitigation credit is given only for that portion. The
6 department or water management district may deviate from the
7 full cost requirements of this subparagraph to resolve a
8 proceeding brought pursuant to chapter 70 or a claim for
9 inverse condemnation. Nothing in this section shall be
10 construed to require the owner of a private mitigation bank,
11 permitted under s. 373.4136, to include the full cost of a
12 mitigation credit in the price of the credit to a purchaser of
13 said credit.
14 2. The department and each water management district
15 shall report to the Executive Office of the Governor by
16 January 31 and July 31 of each year all cash donations
17 accepted under subparagraph 1. during the preceding calendar
18 year 6 months for wetland mitigation purposes, which shall
19 include a description of the endorsed mitigation projects. The
20 report must exclude contributions made pursuant to s.
21 373.4137. The report must include a description of the
22 endorsed mitigation projects and, except for projects governed
23 by s. 373.4135(6), shall address, as applicable, success
24 criteria, project implementation status and timeframe,
25 monitoring, long-term management, provisions for preservation,
26 and full-cost accounting.
27 3. If the applicant is unable to meet water quality
28 standards because existing ambient water quality does not meet
29 standards, the governing board or the department shall
30 consider mitigation measures proposed by or acceptable to the
31 applicant that cause net improvement of the water quality in
11
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 the receiving body of water for those parameters which do not
2 meet standards.
3 4. If mitigation requirements imposed by a local
4 government for surface water and wetland impacts of an
5 activity regulated under this part cannot be reconciled with
6 mitigation requirements approved under a permit for the same
7 activity issued under this part, including application of the
8 uniform wetland assessment method adopted pursuant to
9 subsection (18), the mitigation requirements for surface water
10 and wetland impacts shall be controlled by the permit issued
11 under this part.
12 (c) Where activities for a single project regulated
13 under this part occur in more than one local government
14 jurisdiction, and where permit conditions or regulatory
15 requirements are imposed by a local government for these
16 activities which cannot be reconciled with those imposed by a
17 permit under this part for the same activities, the permit
18 conditions or regulatory requirements shall be controlled by
19 the permit issued under this part.
20 (8)(a) The governing board or the department, in
21 deciding whether to grant or deny a permit for an activity
22 regulated under this part shall consider the cumulative
23 impacts upon surface water and wetlands, as delineated in s.
24 373.421(1), within the same drainage basin as defined in s.
25 373.403(9), of:
26 1.(a) The activity for which the permit is sought.
27 2.(b) Projects which are existing or activities
28 regulated under this part which are under construction or
29 projects for which permits or determinations pursuant to s.
30 373.421 or s. 403.914 have been sought.
31
12
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 3.(c) Activities which are under review, approved, or
2 vested pursuant to s. 380.06, or other activities regulated
3 under this part which may reasonably be expected to be located
4 within surface waters or wetlands, as delineated in s.
5 373.421(1), in the same drainage basin as defined in s.
6 373.403(9), based upon the comprehensive plans, adopted
7 pursuant to chapter 163, of the local governments having
8 jurisdiction over the activities, or applicable land use
9 restrictions and regulations.
10 (b) If an applicant proposes mitigation within the
11 same drainage basin as the adverse impacts to be mitigated,
12 and if the mitigation offsets these adverse impacts, the
13 governing board and department shall consider the regulated
14 activity to meet the requirements of paragraph (a). However
15 this paragraph does not prohibit mitigation outside the
16 drainage basin which offsets the adverse impacts within the
17 drainage basin.
18 (18) MITIGATION STUDIES.--The department and each
19 water management district responsible for implementation of
20 the environmental resource permitting program shall develop a
21 uniform wetland mitigation assessment method no later than
22 October 1, 2001. The department shall adopt the uniform
23 mitigation assessment method by rule no later than January 31,
24 2002. Once the department adopts the uniform wetland
25 mitigation assessment method by rule, the uniform wetland
26 mitigation assessment method shall be binding on the
27 department, the water management districts, local governments,
28 and any other governmental agencies, and shall be the sole
29 means to determine the mitigation needed to offset adverse
30 impacts and to award and deduct mitigation credits. A water
31 management district and any other governmental agency subject
13
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 to chapter 120 may apply the uniform wetland mitigation
2 assessment method without the need to adopt it pursuant to s.
3 120.54. It shall be a goal of the department and water
4 management districts that the uniform wetland mitigation
5 assessment method developed be practical for use within the
6 timeframes provided in the permitting process and results in a
7 consistent process for determining mitigation requirements. It
8 shall be recognized that any such method will require the
9 application of reasonable scientific judgment. The uniform
10 wetland mitigation assessment method must determine the value
11 of functions provided by wetlands and other surface waters
12 considering the current conditions of these areas, use by fish
13 and wildlife, location, uniqueness, and hydrologic connection,
14 in addition to the factors listed in s. 373.4136(4). The
15 uniform wetland mitigation assessment method shall also
16 account for the expected time lag associated with offsetting
17 impacts and the degrees of risk associated with the proposed
18 mitigation. The uniform wetland mitigation assessment method
19 shall account for different ecological communities in
20 different areas of the state. In developing the uniform
21 wetland mitigation assessment method, the department and water
22 management districts shall consult with approved local
23 programs under s. 403.182 which have an established wetland
24 mitigation program. The department and water management
25 districts shall consider the recommendations submitted by such
26 approved local programs, including any recommendations
27 relating to the adoption by the department and water
28 management districts of any uniform wetland mitigation
29 methodology that has been adopted and used by an approved
30 local program in its established wetland mitigation program.
31 Environmental resource permitting rules may establish
14
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 categories of permits or thresholds for minor impacts under
2 which the use of the uniform wetland mitigation assessment
3 method will not be required. The application of the uniform
4 wetland mitigation assessment method is not subject to s.
5 70.001. If the rule establishing the uniform wetland
6 mitigation assessment method is deemed to be invalid, the
7 applicable rules, regulations, and ordinances related to
8 establishing needed mitigation in existence prior to the
9 adoption of the uniform wetland mitigation assessment method,
10 including those adopted by a county which is an approved local
11 program under s. 403.182, and the method described in
12 paragraph (b) for existing mitigation banks shall be
13 authorized for use by the department, water management
14 districts, local governments, and other state agencies.
15 (a) In developing the uniform wetland mitigation
16 assessment method, the department shall seek input from the
17 United State Army Corps of Engineers in order to promote
18 consistency in the mitigation assessment methods used by the
19 state and federal permitting programs.
20 (b) An entity that has received a mitigation bank
21 permit prior to the adoption of the uniform wetland mitigation
22 assessment method shall have impact sites assessed, for the
23 purpose of deducting bank credits, using the credit assessment
24 method, including any functional assessment methodology, in
25 place when the bank was permitted, unless the entity elects to
26 have its credits redetermined, and thereafter have its credits
27 deducted, using the uniform wetland mitigation assessment
28 method.
29 (a) For impacts resulting from activities regulated
30 under this part, the Legislature finds that successful
31
15
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 2162 First Engrossed (ntc)
1 mitigation performed by the public and private sectors has
2 helped to preserve the state's natural resources.
3 (b) The Office of Program Policy Analysis and
4 Government Accountability shall study the mitigation options
5 as defined by paragraph (1)(b), implemented from 1994 to the
6 present, and issue a report by January 31, 2000. The study
7 shall consider the effectiveness and costs of the current
8 mitigation options in offsetting adverse effects to wetlands
9 and wetland functions, including the application of cumulative
10 impact considerations, and identify, as appropriate,
11 recommendations for statutory or rule changes to increase the
12 effectiveness of mitigation strategies.
13 (19) The Office of Program Policy Analysis and
14 Governmental Accountability shall study the cumulative impact
15 consideration required by subsection (8) and issue a report by
16 July 1, 2001. The study shall address the justification for
17 the cumulative impact consideration; changes that can provide
18 clarity and certainty in the cumulative impact consideration;
19 and whether a practical, consistent, and equitable methodology
20 can be developed for considering cumulative impacts within the
21 environmental resource permitting program.
22 Section 4. This act shall take effect upon becoming a
23 law.
24
25
26
27
28
29
30
31
16