House Bill 2365c1
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Florida House of Representatives - 2000 CS/HB 2365
By the Committee on Environmental Protection and
Representative Alexander
1 A bill to be entitled
2 An act relating to wetlands mitigation;
3 amending s. 373.4135, F.S.; requiring
4 establishment and operation of mitigation
5 projects under a memorandum of agreement, under
6 certain conditions; providing requirements and
7 exclusions; authorizing certain mitigation
8 options for private single-family lots or
9 homeowners; providing for notice; amending s.
10 373.4136, F.S.; revising provisions relating to
11 size and characteristics of the mitigation
12 service area; providing for use of regional
13 watersheds to guide establishment of mitigation
14 service areas; requiring satisfaction of
15 cumulative impact considerations; amending s.
16 373.414, F.S.; revising reporting requirements
17 relating to money donated as wetlands
18 mitigation; specifying conditions under which
19 proposed mitigation shall satisfy cumulative
20 impact considerations for a regulated activity;
21 requiring the Department of Environmental
22 Protection and certain water management
23 districts to adopt a single uniform wetland
24 mitigation assessment method, by rule, by a
25 specified date; directing local government use
26 of the assessment method; providing conditions
27 and procedures for use of the assessment
28 method; deleting obsolete language; directing
29 study by the Office of Program Policy Analysis
30 and Government Accountability on mitigation
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1 cumulative impact considerations; providing an
2 effective date.
3
4 Be It Enacted by the Legislature of the State of Florida:
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6 Section 1. Subsections (6) and (7) are added to
7 section 373.4135, Florida Statutes, to read:
8 373.4135 Mitigation banks and offsite regional
9 mitigation.--
10 (6) An environmental creation, preservation,
11 enhancement, or restoration project, including regional
12 offsite mitigation areas, for which money is donated or paid
13 as mitigation, that is sponsored by the department, a water
14 management district, or a local government and provides
15 mitigation for five or more applicants for permits under this
16 part, or for 35 or more acres of adverse impacts, shall be
17 established and operated under a memorandum of agreement. The
18 memorandum of agreement shall be between the governmental
19 entity proposing the mitigation project and the department or
20 water management district, as appropriate. Such memorandum of
21 agreement need not be adopted by rule. For the purposes of
22 this subsection, one creation, preservation, enhancement, or
23 restoration project shall mean one or more parcels of land
24 with similar ecological communities that are intended to be
25 created, preserved, enhanced, or restored under a common
26 scheme.
27 (a) For any ongoing creation, preservation,
28 enhancement, or restoration project and regional offsite
29 mitigation area sponsored by the department, a water
30 management district, or a local government, for which money
31 was or is paid as mitigation, that was begun prior to the
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1 effective date of this subsection and has operated as of the
2 effective date of this subsection, or is anticipated to
3 operate, in excess of the mitigation thresholds provided in
4 this subsection, the governmental entity sponsoring such
5 project shall submit a draft memorandum of agreement to the
6 water management district or department by October 1, 2000.
7 The governmental entity sponsoring such project shall make
8 reasonable efforts to obtain the final signed memorandum of
9 agreement within 1 year after such submittal. The governmental
10 entity sponsoring such project may continue to receive moneys
11 donated or paid toward the project as mitigation, provided the
12 requirements of this paragraph are met.
13 (b) The memorandum of agreement shall establish
14 criteria that each environmental creation, preservation,
15 enhancement, or restoration project must meet. These criteria
16 must address the elements listed in paragraph (c). The entity
17 sponsoring such project, or category of projects, shall submit
18 documentation or other evidence to the water management
19 district or department that the project meets, or individual
20 projects within a category meet, the specified criteria.
21 (c) At a minimum, the memorandum of agreement must
22 address the following for each project authorized:
23 1. A description of the work that will be conducted on
24 the site and a timeline for completion of such work.
25 2. A timeline for obtaining any required environmental
26 resource permit.
27 3. The environmental success criteria that the project
28 must achieve.
29 4. The monitoring and long-term management
30 requirements that must be undertaken for the project.
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1 5. An assessment of the project in accordance with s.
2 373.4136(4)(a)-(i), until the adoption of the uniform wetland
3 mitigation assessment method pursuant to s. 373.414(18).
4 6. A designation of the entity responsible for the
5 successful completion of the mitigation work.
6 7. A definition of the geographic area where the
7 project may be used as mitigation established using the
8 criteria of s. 373.4136(6).
9 8. Full cost accounting of the project, including
10 annual review and adjustment.
11 9. Provision and a timetable for the acquisition of
12 any lands necessary for the project.
13 10. Provision for preservation of the site.
14 11. Provision for application of all moneys received
15 solely to the project for which they were collected.
16 12. Provision for termination of the agreement and
17 cessation of use of the project as mitigation if any material
18 contingency of the agreement has failed to occur.
19 (d) A single memorandum of understanding may authorize
20 more than one environmental creation, preservation,
21 enhancement, or restoration project, or category of projects,
22 as long as the elements listed in paragraph (c) are addressed
23 for each project.
24 (e) Projects governed by this subsection, except for
25 projects established pursuant to subsection (7), shall be
26 subject to the provisions of s. 373.414(1)(b)1.
27 (f) The provisions of this subsection shall not apply
28 to mitigation areas established to implement the provisions of
29 s. 373.4137.
30 (g) The provisions of this subsection shall not apply
31 when the department, water management district, or local
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1 government establishes, or contracts with a private entity to
2 establish, a mitigation bank permitted under s. 373.4136. The
3 provisions of this subsection shall not apply to other
4 entities that establish offsite regional mitigation as defined
5 in this section and s. 373.403.
6 (7) The department, water management districts, and
7 local governments may elect to establish and manage mitigation
8 sites, including regional offsite mitigation areas, or
9 contract with permitted mitigation banks, to provide
10 mitigation options for private single-family lots or
11 homeowners. The department, water management districts, and
12 local governments shall provide a written notice of their
13 election under this paragraph by United States mail to those
14 individuals who have requested, in writing, to receive such
15 notice. The use of mitigation options established under this
16 subsection are not subject to the full-cost-accounting
17 provision of s. 373.414(1)(b)1. To use a mitigation option
18 established under this subsection, the applicant for a permit
19 under this part must be a private, single-family lot or
20 homeowner, and the land upon which the adverse impact is
21 located must be intended for use as a single-family residence
22 by the current owner. The applicant must not be a corporation,
23 partnership, or other business entity. However, the provisions
24 of this subsection shall not apply to other entities that
25 establish offsite regional mitigation as defined in this
26 section and s. 373.403.
27 Section 2. Subsection (6) of section 373.4136, Florida
28 Statutes, is amended to read:
29 373.4136 Establishment and operation of mitigation
30 banks.--
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1 (6) MITIGATION SERVICE AREA.--The department or water
2 management district shall establish a mitigation service area
3 for each mitigation bank permit. The department or water
4 management district shall notify and consider comments
5 received on the proposed mitigation service area from each
6 local government within the proposed mitigation service area
7 that operates a wetlands regulatory program. Except as
8 provided herein, mitigation credits may be withdrawn and used
9 only to offset adverse impacts in the mitigation service area.
10 The boundaries of the mitigation service area shall depend
11 upon the geographic area where the mitigation bank could
12 reasonably be expected to offset adverse impacts. A
13 mitigation service area may be larger than the regional
14 watershed if the mitigation bank provides exceptional
15 ecological value such that adverse impacts outside the
16 regional watershed could reasonably be expected to be
17 adequately offset by the mitigation bank. A mitigation service
18 area may be smaller than a regional watershed if adverse
19 impacts throughout the regional watershed cannot reasonably be
20 expected to be offset by the mitigation bank because of local
21 ecological or hydrological conditions. Mitigation service
22 areas may overlap, and mitigation service areas for two or
23 more mitigation banks may be approved for a regional
24 watershed.
25 (a) In determining the boundaries of the mitigation
26 service area extent to which a mitigation bank provides
27 exceptional ecological value such that adverse impacts outside
28 the regional watershed could reasonably be expected to be
29 adequately offset by the mitigation bank, the department or
30 the water management district shall consider the
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1 characteristics, size, and location of the mitigation bank
2 and, at a minimum, the extent to which the mitigation bank:
3 1. Contributes to Will promote a regional integrated
4 ecological network;
5 2. Will significantly enhance the water quality or
6 restoration of an offsite receiving water body that is
7 designated as an Outstanding Florida Water, a Wild and Scenic
8 River, an aquatic preserve, a water body designated in a plan
9 adopted pursuant to s. 373.456 of the Surface Water
10 Improvement and Management Act, or a nationally designated
11 estuarine preserve;
12 3. Will provide for the long-term viability of
13 endangered or threatened species or species of special
14 concern; and
15 4. Is consistent with the objectives of a regional
16 management plan adopted or endorsed by the department or water
17 management districts; and.
18 5. Can reasonably be expected to offset specific types
19 of wetland impacts within a specific geographic area. A
20 mitigation bank need not be able to offset all expected
21 impacts within its service area.
22 (b) The department and water management districts
23 shall use regional watersheds to guide the establishment of
24 mitigation service areas. Drainage basins established pursuant
25 to s. 373.414(8) may be used as regional watersheds when they
26 are established based on the hydrological or ecological
27 characteristics of the basin. A mitigation service area may
28 extend beyond the regional watershed in which the bank is
29 located into all or part of other regional watersheds when the
30 mitigation bank has the ability to offset adverse impacts
31 outside that regional watershed. Similarly, a mitigation
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1 service area may be smaller than the regional watershed in
2 which the mitigation bank is located when adverse impacts
3 throughout the regional watershed cannot reasonably be
4 expected to be offset by the mitigation bank because of local
5 ecological or hydrological conditions.
6 (c)(b) Once a mitigation bank service area has been
7 established by the department or a water management district
8 for a mitigation bank, such service area shall be accepted by
9 all water management districts, local governments, and the
10 department.
11 (d)(c) If the requirements in s. 373.414(1)(b) and (8)
12 373.4135(1)(b) are met, the following projects or activities
13 regulated under this part shall be eligible to use a
14 mitigation bank, regardless of whether notwithstanding the
15 fact that they are not completely located within the
16 mitigation service area:
17 1. Projects with adverse impacts partially located
18 within the mitigation service area.
19 2. Linear projects, such as roadways, transmission
20 lines, distribution lines, pipelines, or railways.
21 3. Projects with total adverse impacts of less than 1
22 acre in size.
23 Section 3. Paragraph (b) of subsection (1) and
24 subsections (8) and (18) of section 373.414, Florida Statutes,
25 are amended, and subsection (19) is added to said section, to
26 read:
27 373.414 Additional criteria for activities in surface
28 waters and wetlands.--
29 (1) As part of an applicant's demonstration that an
30 activity regulated under this part will not be harmful to the
31 water resources or will not be inconsistent with the overall
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1 objectives of the district, the governing board or the
2 department shall require the applicant to provide reasonable
3 assurance that state water quality standards applicable to
4 waters as defined in s. 403.031(13) will not be violated and
5 reasonable assurance that such activity in, on, or over
6 surface waters or wetlands, as delineated in s. 373.421(1), is
7 not contrary to the public interest. However, if such an
8 activity significantly degrades or is within an Outstanding
9 Florida Water, as provided by department rule, the applicant
10 must provide reasonable assurance that the proposed activity
11 will be clearly in the public interest.
12 (b) If the applicant is unable to otherwise meet the
13 criteria set forth in this subsection, the governing board or
14 the department, in deciding to grant or deny a permit, shall
15 consider measures proposed by or acceptable to the applicant
16 to mitigate adverse effects that may be caused by the
17 regulated activity. Such measures may include, but are not
18 limited to, onsite mitigation, offsite mitigation, offsite
19 regional mitigation, and the purchase of mitigation credits
20 from mitigation banks permitted under s. 373.4136. It shall
21 be the responsibility of the applicant to choose the form of
22 mitigation. The mitigation must offset the adverse effects
23 caused by the regulated activity.
24 1. The department or water management districts may
25 accept the donation of money as mitigation only where the
26 donation is specified for use in a duly noticed environmental
27 creation, preservation, enhancement, or restoration project,
28 endorsed by the department or the governing board of the water
29 management district, which offsets the impacts of the activity
30 permitted under this part. However, the provisions of this
31 subsection shall not apply to projects undertaken pursuant to
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1 s. 373.4137 or chapter 378. Where a permit is required under
2 this part to implement any project endorsed by the department
3 or a water management district, all necessary permits must
4 have been issued prior to the acceptance of any cash donation.
5 After the effective date of this act, when money is donated to
6 either the department or a water management district to offset
7 impacts authorized by a permit under this part, the department
8 or the water management district shall accept only a donation
9 that represents the full cost to the department or water
10 management district of undertaking the project that is
11 intended to mitigate the adverse impacts. The full cost shall
12 include all direct and indirect costs, as applicable, such as
13 those for land acquisition, land restoration or enhancement,
14 perpetual land management, and general overhead consisting of
15 costs such as staff time, building, and vehicles. The
16 department or the water management district may use a
17 multiplier or percentage to add to other direct or indirect
18 costs to estimate general overhead. Mitigation credit for
19 such a donation shall be given only to the extent that the
20 donation covers the full cost to the agency of undertaking the
21 project that is intended to mitigate the adverse impacts.
22 However, nothing herein shall be construed to prevent the
23 department or a water management district from accepting a
24 donation representing a portion of a larger project, provided
25 that the donation covers the full cost of that portion and
26 mitigation credit is given only for that portion. The
27 department or water management district may deviate from the
28 full cost requirements of this subparagraph to resolve a
29 proceeding brought pursuant to chapter 70 or a claim for
30 inverse condemnation. Nothing in this section shall be
31 construed to require the owner of a private mitigation bank,
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1 permitted under s. 373.4136, to include the full cost of a
2 mitigation credit in the price of the credit to a purchaser of
3 said credit.
4 2. The department and each water management district
5 shall report to the Executive Office of the Governor by
6 January 31 and July 31 of each year all cash donations
7 accepted under subparagraph 1. during the preceding calendar
8 year 6 months for wetland mitigation purposes, which shall
9 include a description of the endorsed mitigation projects. The
10 report shall exclude those contributions pursuant to s.
11 373.4137. The report shall include a description of the
12 endorsed mitigation projects and, except for projects governed
13 by s. 373.4135(6), shall address, as applicable, success
14 criteria, project implementation status and timeframe,
15 monitoring, long-term management, provisions for preservation,
16 and full cost accounting.
17 3. If the applicant is unable to meet water quality
18 standards because existing ambient water quality does not meet
19 standards, the governing board or the department shall
20 consider mitigation measures proposed by or acceptable to the
21 applicant that cause net improvement of the water quality in
22 the receiving body of water for those parameters which do not
23 meet standards.
24 4. If mitigation requirements imposed by a local
25 government for surface water and wetland impacts of an
26 activity regulated under this part cannot be reconciled with
27 mitigation requirements approved under a permit for the same
28 activity issued under this part, including application of the
29 uniform wetland mitigation assessment method adopted pursuant
30 to subsection (18), the mitigation requirements for surface
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1 water and wetland impacts shall be controlled by the permit
2 issued under this part.
3 (8)(a) The governing board or the department, in
4 deciding whether to grant or deny a permit for an activity
5 regulated under this part shall consider the cumulative
6 impacts upon surface water and wetlands, as delineated in s.
7 373.421(1), within the same drainage basin as defined in s.
8 373.403(9), of:
9 1.(a) The activity for which the permit is sought.
10 2.(b) Projects which are existing or activities
11 regulated under this part which are under construction or
12 projects for which permits or determinations pursuant to s.
13 373.421 or s. 403.914 have been sought.
14 3.(c) Activities which are under review, approved, or
15 vested pursuant to s. 380.06, or other activities regulated
16 under this part which may reasonably be expected to be located
17 within surface waters or wetlands, as delineated in s.
18 373.421(1), in the same drainage basin as defined in s.
19 373.403(9), based upon the comprehensive plans, adopted
20 pursuant to chapter 163, of the local governments having
21 jurisdiction over the activities, or applicable land use
22 restrictions and regulations.
23 (b) If an applicant proposes mitigation within the
24 same drainage basin as the adverse impacts to be mitigated,
25 and if the mitigation offsets these adverse impacts, the
26 governing board and department shall consider the regulated
27 activity to meet the cumulative impact requirements of
28 paragraph (a). However, this paragraph may not be construed to
29 prohibit mitigation outside the drainage basin which offsets
30 the adverse impacts within the drainage basin.
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1 (18) MITIGATION STUDIES.--The department and each
2 water management district responsible for implementation of
3 the environmental resource permitting program shall develop a
4 uniform wetland mitigation assessment method no later than
5 October 1, 2001. The department shall adopt the uniform
6 wetland mitigation assessment method by rule no later than
7 January 31, 2002. Once the department adopts the uniform
8 wetland mitigation assessment method by rule, the uniform
9 wetland mitigation assessment method shall be binding on the
10 department, the water management districts, local governments,
11 and any other governmental agencies and shall be the sole
12 means to determine mitigation needed to offset adverse impacts
13 and to award and deduct mitigation bank credits. A water
14 management district and any other governmental agency subject
15 to chapter 120 may apply the uniform wetland mitigation
16 assessment method without the need to adopt it pursuant to s.
17 120.54. It shall be a goal of the department and water
18 management districts that the uniform wetland mitigation
19 assessment method developed be practicable for use within the
20 timeframes provided in the permitting process and result in a
21 consistent process for determining mitigation requirements. It
22 shall be recognized that any such method shall require the
23 application of reasonable scientific judgment. The uniform
24 wetland mitigation assessment method must determine the value
25 of functions provided by wetlands and other surface waters
26 considering the current conditions of these areas, utilization
27 by fish and wildlife, location, uniqueness, and hydrologic
28 connection, in addition to the factors listed in s.
29 373.4136(4). The uniform wetland mitigation assessment method
30 shall also account for the expected time-lag associated with
31 offsetting impacts and the degree of risk associated with the
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1 proposed mitigation. The uniform wetland mitigation assessment
2 method may account for different ecological communities in
3 different areas of the state. Environmental resource
4 permitting rules may establish categories of permits or
5 thresholds for minor impacts under which the use of the
6 uniform wetland mitigation assessment method will not be
7 required. The application of the uniform wetland mitigation
8 assessment method is not subject to s. 70.001. In the event
9 the rule establishing the uniform wetland mitigation
10 assessment method is deemed to be invalid, the applicable
11 rules related to establishing needed mitigation in existence
12 prior to the adoption of the uniform wetland mitigation
13 assessment method, and the method described in paragraph (b)
14 for existing mitigation banks, shall be authorized for use by
15 the department, water management districts, local governments,
16 and other state agencies.
17 (a) In developing the uniform wetland mitigation
18 assessment method, the department shall seek input from the
19 United States Army Corps of Engineers in order to promote
20 consistency in the mitigation assessment methods used by the
21 state and federal permitting programs.
22 (b) An entity which has received a mitigation bank
23 permit prior to the adoption of the uniform wetland mitigation
24 assessment method shall have impact sites assessed, for the
25 purpose of deducting bank credits, using the credit assessment
26 method, including any functional assessment methodology, which
27 was in place when the bank was permitted; unless the entity
28 elects to have its credits redetermined, and thereafter have
29 its credits deducted, using the uniform wetland mitigation
30 assessment method.
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1 (a) For impacts resulting from activities regulated
2 under this part, the Legislature finds that successful
3 mitigation performed by the public and private sectors has
4 helped to preserve the state's natural resources.
5 (b) The Office of Program Policy Analysis and
6 Government Accountability shall study the mitigation options
7 as defined by paragraph (1)(b), implemented from 1994 to the
8 present, and issue a report by January 31, 2000. The study
9 shall consider the effectiveness and costs of the current
10 mitigation options in offsetting adverse effects to wetlands
11 and wetland functions, including the application of cumulative
12 impact considerations, and identify, as appropriate,
13 recommendations for statutory or rule changes to increase the
14 effectiveness of mitigation strategies.
15 (19) The Office of Program Policy Analysis and
16 Government Accountability shall study the cumulative impact
17 consideration required by s. 373.414(8) and issue a report by
18 July 1, 2001. The study shall address the justification for
19 the cumulative impact consideration, changes that can provide
20 clarity and certainty in the cumulative impact consideration,
21 and whether a practicable, consistent, and equitable
22 methodology can be developed for considering cumulative
23 impacts within the environmental resource permitting program.
24 Section 4. This act shall take effect upon becoming a
25 law.
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