Senate Bill 2162e1

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  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:


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  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


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  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);

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  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


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  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


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  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

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  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


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  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,


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  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


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  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.


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  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


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  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.

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  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


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  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


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  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

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  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.

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