House Bill hb1623
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    Florida House of Representatives - 2001                HB 1623
        By Representative Mahon
  1                      A bill to be entitled
  2         An act relating to wetland mitigation; creating
  3         s. 373.4139, F.S.; providing definitions;
  4         authorizing the mitigation of wetland and
  5         surface water impacts resulting from the Better
  6         Jacksonville Plan through the acquisition of
  7         lands for preservation and through wetland
  8         restoration, enhancement, and creation projects
  9         of regional environmental benefit; providing
10         legislative intent with respect to such
11         mitigation; specifying areas to be afforded
12         preference as mitigation areas; authorizing the
13         City of Jacksonville and the St. Johns River
14         Water Management District to jointly determine
15         other areas to be afforded preference as
16         mitigation lands; providing sources of funds
17         for wetland and surface water mitigation;
18         providing procedure with respect to land
19         acquisition; requiring the preparation of an
20         inventory of wetland and surface water
21         resources to be impacted; providing for annual
22         updating of the inventory; specifying inventory
23         contents; requiring the district to develop a
24         mitigation plan annually; requiring annual
25         approval of a conceptual plan for mitigating
26         impacts contained in the inventory by the
27         governing board of the district; providing that
28         approval of the conceptual plan creates a
29         presumption that the mitigation contained
30         therein satisfies the mitigation permitting
31         requirements of ch. 373, F.S.; requiring the
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    Florida House of Representatives - 2001                HB 1623
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  1         district to forward copies of the conceptual
  2         plan to, and seek to obtain formal concurrence
  3         of, specified federal agencies; providing
  4         procedure and requirements with respect to
  5         wetland and surface water mitigation;
  6         specifying powers of the district with regard
  7         to permitting; providing funding requirements;
  8         requiring specified deposits by permittees;
  9         authorizing the district and the City of
10         Jacksonville to enter into certain agreements;
11         authorizing the district to enter into certain
12         contracts; providing specified powers of the
13         district; providing procedure in the event that
14         conceptual mitigation plans are not approved or
15         adopted; authorizing exclusion of certain
16         projects from the conceptual plan; providing
17         construction; amending s. 373.4135, F.S.;
18         providing nonapplicability to the provisions of
19         s. 373.4139 with respect to the required
20         establishment of specified environmental
21         creation, preservation, enhancement, and
22         restoration projects; providing an effective
23         date.
24
25  Be It Enacted by the Legislature of the State of Florida:
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27         Section 1.  Section 373.4139, Florida Statutes, is
28  created to read:
29         373.4139  Better Jacksonville Plan mitigation.--
30         (1)  As used in this section:
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    Florida House of Representatives - 2001                HB 1623
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  1         (a)  "Better Jacksonville Plan" means that program of
  2  Duval County improvements described in Chapter 761,
  3  Jacksonville Ordinance Code, which was approved by referendum
  4  on October 3, 2000, including, at the discretion of the
  5  sponsoring authority, any Jacksonville Transportation
  6  Authority project or Jacksonville Electric Authority utility
  7  project, within Duval County or adjacent counties, constructed
  8  in conjunction with any Better Jacksonville Plan project.
  9         (b)  "City" means the City of Jacksonville.
10         (c)  "District" means the St. Johns River Water
11  Management District.
12         (2)  The Legislature finds that infrastructure
13  improvements associated with the Better Jacksonville Plan are
14  of regional benefit. It is the intent of the Legislature that
15  wetland and surface water impacts resulting from the Better
16  Jacksonville Plan, or portions thereof, may be mitigated
17  through the acquisition of lands for preservation and through
18  wetland restoration, enhancement, or creation projects of
19  corresponding regional environmental benefit.
20         (a)  For the purposes of this section, the Legislature
21  finds that the following areas shall be afforded preference as
22  mitigation areas:
23         1.  The Timucuan Historic and Ecological Preserve.
24         2.  The Pumpkin Hill Creek State Buffer Preserve.
25         3.  The Nassau-St. Johns River Aquatic Preserves.
26         4.  The Cedar Swamp Conservation and Recreation Lands
27  project.
28         5.  The Cecil Field Conservation Corridor and nearby
29  watersheds.
30         6.  The Julington-Durbin Creeks Conservation and
31  Recreation Lands project and tributaries.
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  1         7.  The Thomas Creek watershed.
  2         (b)  The City of Jacksonville and the St. Johns River
  3  Water Management District may jointly determine areas other
  4  than those enumerated in paragraph (a) that should be afforded
  5  preference as mitigation lands.
  6         (c)  For the purposes of this section, priorities for
  7  acquisition for wetland preservation, enhancement, or
  8  restoration shall be given to mitigation lands afforded
  9  preference to the extent that they can offset the adverse
10  impacts of the Better Jacksonville Plan.
11         (3)  Funds for wetland and surface water mitigation for
12  impacts resulting from infrastructure improvements associated
13  with Better Jacksonville Plan projects shall be provided
14  through the funding mechanisms identified in the Better
15  Jacksonville Plan. Where feasible, mitigation funds shall be
16  used in coordination with funds from the Conservation and
17  Recreation Lands Trust Fund, the Florida Communities Trust,
18  the St. Johns River Water Management District's land
19  acquisition program, the Jacksonville Preservation and
20  Environmental Capital Property Fund, or from other appropriate
21  sources, and shall be coordinated with the Better Jacksonville
22  Plan Financial Administration Committee when applicable.
23         (4)  Whenever land acquisition is required to mitigate
24  Better Jacksonville Plan wetland impacts, the St. Johns River
25  Water Management District shall consult the Mayor's Oversight
26  Commission for the Preservation Project, created by City of
27  Jacksonville Mayoral Executive Order 99-2, in determining
28  which lands should be acquired and the order of purchase of
29  such lands.
30         (5)  The Better Jacksonville Plan Project
31  Administration Committee shall prepare by January 1, 2002, an
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  1  inventory of wetland and surface water resources to be
  2  impacted directly, secondarily, and cumulatively by the
  3  construction, alteration, operation, or maintenance of
  4  projects in the Better Jacksonville Plan. Said resources shall
  5  include buffers which protect wetlands from the secondary
  6  impacts associated with adjacent upland activities. This
  7  inventory shall be updated annually on January 1 of each year
  8  beginning January 1, 2003. Each annual update shall reflect
  9  the anticipated wetland and surface water impacts of all
10  incomplete Better Jacksonville Plan projects based on the best
11  and most current information available. The inventory and each
12  annual update shall list the acreage, type, and location of
13  the resources anticipated to be impacted, as well as an
14  assessment of the functions presently served by such
15  resources, within and adjacent to the preliminary
16  rights-of-way of an incomplete Better Jacksonville Plan
17  project. In designing a project, impacts shall be reduced or
18  eliminated through practicable design modifications in
19  accordance with this part and its implementing regulations.
20         (6)  Prior to July 1 of each year, the district, in
21  consultation with the Better Jacksonville Plan Project
22  Administration Committee or its designee, the United States
23  Army Corps of Engineers, the United States Fish and Wildlife
24  Service, and other appropriate agencies and interested parties
25  shall develop a mitigation plan for the primary purpose of
26  compliance with 33 U.S.C. s. 1344 and the mitigation
27  requirements of this chapter.
28         (7)  Beginning on July 1, 2002, and by July 1 of each
29  year thereafter, the governing board of the St. Johns River
30  Water Management District shall approve a conceptual plan for
31  mitigating the impacts contained in the inventory. The plan
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  1  may be amended as needed to anticipate schedule changes or
  2  additional projects.
  3         (a)  Approval of the conceptual mitigation plan by the
  4  governing board of the St. Johns River Water Management
  5  District shall create a presumption that the mitigation in the
  6  approved plan satisfies the wetland and surface water
  7  mitigation permitting requirements of this chapter for those
  8  permit applications submitted to the district to authorize
  9  Better Jacksonville Plan projects, provided that the impacts
10  proposed are consistent with those reflected in the inventory
11  submitted in accordance with subsection (5) and the impacts
12  have been reduced and eliminated pursuant to general law.
13         (b)  Upon approval of the conceptual mitigation plan,
14  the St. Johns River Water Management District shall forward a
15  copy of the plan to all appropriate federal agencies,
16  including the United States Army Corps of Engineers. The
17  district shall seek to obtain formal concurrence of the
18  approved mitigation plans from the federal agencies
19  responsible for granting permits for the construction of
20  projects associated with the Better Jacksonville Plan.
21         (8)  Wetland and surface water mitigation required as a
22  result of construction, alteration, operation, or maintenance
23  associated with Better Jacksonville Plan projects for which
24  permits are required under this part shall be accomplished in
25  the following manner:
26         (a)  The City of Jacksonville or the specific project
27  program manager or his or her agent shall apply to the St.
28  Johns River Water Management District for construction permits
29  subject to the district's authority. The district shall be
30  solely responsible for review and final action on such permits
31  as required by this chapter or chapter 403. No local
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  1  environmental permits shall be required for construction of
  2  the project. Should any federal permitting authority require
  3  modification of a mitigation plan to gain that authority's
  4  approval, the district shall have the authority to make
  5  appropriate modifications, insofar as the total funding amount
  6  budgeted by the district for wetland mitigation of the project
  7  will allow. Should any federal agency require modification to
  8  a Better Jacksonville Plan project to meet federal wetlands
  9  permitting criteria, the Better Jacksonville Plan permittee
10  shall be responsible for funding any increased cost. The St.
11  Johns River Water Management District shall not be required to
12  expend funds for wetland mitigation in excess of those
13  provided.
14         (b)  The St. Johns River Water Management District
15  shall review permit applications for Better Jacksonville Plan
16  projects in accordance with its permitting responsibilities
17  under this chapter. Following approval of the plan, any
18  mitigation required for wetland or surface water impacts
19  associated with any Better Jacksonville Plan project shall be
20  addressed through a permit condition requiring that the
21  permittee deposit $81,727 for each acre of impact with the St.
22  Johns River Water Management District within 30 days after the
23  permit is issued. Upon depositing the acreage fee, the
24  permittee's wetland mitigation obligations under this chapter
25  for that project shall be deemed satisfied. Beginning on July
26  1, 2003, and each July 1 thereafter, the cost per acre shall
27  be adjusted by the percentage change in the average of the
28  consumer price index issued by the United States Department of
29  Labor for the most recent 12-month period. The district shall
30  condition permits such that construction shall not commence
31  until such funds have been deposited with the district. Upon
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  1  the receipt of the mitigation funds, the district shall be
  2  responsible for implementing the required wetland mitigation.
  3         (c)  The City of Jacksonville and the district may
  4  enter into agreements whereby the city may implement
  5  mitigation, place funds in escrow for future impacts, or
  6  provide the district funds to implement mitigation for future
  7  impacts associated with Better Jacksonville Plan projects.
  8         (d)  In addition to using Better Jacksonville Plan
  9  funds to carry out district-sponsored wetland mitigation
10  projects, the district may contract with other public or
11  private entities to supply mitigation or use Better
12  Jacksonville Plan funds to purchase wetland mitigation credits
13  in public or private mitigation banks, provided such banks
14  have all proper permits and such mitigation is identified in
15  the approved conceptual plan.
16         (e)  Notwithstanding the division of permitting
17  responsibilities set forth in the Operating Agreement
18  Concerning Regulation under this part, dated October 27, 1998,
19  between the Department of Environmental Protection and the St.
20  Johns River Water Management District, adopted as Rule
21  62-113.100, Florida Administrative Code, the district shall
22  have the authority and responsibility to make all permitting
23  decisions and to take all enforcement actions related to such
24  permitting decisions for all permits required under this part
25  for Better Jacksonville Plan projects.
26         (f)  The St. Johns River Water Management District
27  shall have full authority to acquire those lands and implement
28  the mitigation identified in the mitigation plan.
29         (g)  The St. Johns River Water Management District
30  shall serve as acquisition agent in acquiring lands necessary
31  to implement the mitigation plan once it is approved, unless
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  1  the district and the City of Jacksonville agree otherwise.
  2  Unless the City of Jacksonville agrees to arrange for
  3  appraisals of lands to be acquired for wetland mitigation, the
  4  St. Johns River Water Management District may contract or
  5  otherwise enter into agreements with the agency responsible
  6  for the right-of-way acquisition for the Better Jacksonville
  7  Plan for appraisals of mitigation projects. Such appraisals
  8  may be made by the agency responsible for right-of-way
  9  acquisition either in conjunction with, or separate from,
10  appraisals of property necessary for right-of-way acquisition.
11  Title to lands which are acquired by the St. Johns River Water
12  Management District as mitigation lands shall be held by the
13  district and may be transferred, if appropriate for management
14  purposes, to another public or governmental agency. Management
15  plans for mitigation lands shall be prepared and implemented
16  by the agency holding title to the lands in consultation with
17  the Better Jacksonville Plan Project Administration Committee
18  or other entity designated by the City of Jacksonville. The
19  management plans shall be in accordance with the criteria of
20  this chapter and federal permit requirements.
21         (h)  In the event that the district fails to timely
22  adopt the conceptual mitigation plans as herein contemplated,
23  or in the event that such plans are not approved by the
24  appropriate federal agencies, the City of Jacksonville may
25  apply to the appropriate agencies for permits, which
26  applications may be accompanied by conventional mitigation
27  plans, and proceed as if this section did not exist. Nothing
28  in this section shall, in any way, prevent the City of
29  Jacksonville from electing not to build a project of the
30  Better Jacksonville Plan.
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  1         (i)  Specific projects may be excluded from the
  2  conceptual mitigation plan and shall not be subject to this
  3  section upon the finding by either the City of Jacksonville or
  4  the district that the inclusion of such projects would hamper
  5  the efficiency or timeliness of the mitigation planning and
  6  permitting process or if the district is unable to identify
  7  wetland mitigation that would offset the impact of the
  8  project.
  9         (9)  This section shall not be construed to eliminate
10  the need for the City of Jacksonville to comply with the
11  requirement to implement practicable design modifications,
12  including realignment of projects, to reduce or eliminate the
13  impacts of its projects on wetlands and other surface waters
14  as required by rules adopted pursuant to this part, or to
15  diminish the authority under this part to regulate other
16  impacts, including water quantity or water quality impacts, or
17  impacts regulated under this part that are not identified in
18  the inventory described in subsection (5).
19         Section 2.  Paragraph (h) is added to subsection (6) of
20  section 373.4135, Florida Statutes, to read:
21         373.4135  Mitigation banks and offsite regional
22  mitigation.--
23         (6)  An environmental creation, preservation,
24  enhancement, or restoration project, including regional
25  offsite mitigation areas, for which money is donated or paid
26  as mitigation, that is sponsored by the department, a water
27  management district, or a local government and provides
28  mitigation for five or more applicants for permits under this
29  part, or for 35 or more acres of adverse impacts, shall be
30  established and operated under a memorandum of agreement. The
31  memorandum of agreement shall be between the governmental
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  1  entity proposing the mitigation project and the department or
  2  water management district, as appropriate. Such memorandum of
  3  agreement need not be adopted by rule. For the purposes of
  4  this subsection, one creation, preservation, enhancement, or
  5  restoration project shall mean one or more parcels of land
  6  with similar ecological communities that are intended to be
  7  created, preserved, enhanced, or restored under a common
  8  scheme.
  9         (h)  The provisions of this subsection shall not apply
10  to mitigation areas established to implement the provisions of
11  s. 373.4139.
12         Section 3.  This act shall take effect upon becoming a
13  law.
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    Florida House of Representatives - 2001                HB 1623
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  2                          HOUSE SUMMARY
  3
      Authorizes the mitigation of wetland and surface water
  4    impacts resulting from the Better Jacksonville Plan, as
      defined in the act, through the acquisition of lands for
  5    preservation and through wetland restoration,
      enhancement, and creation projects of regional
  6    environmental benefit. Provides legislative intent with
      respect to such mitigation. Specifies areas to be
  7    afforded preference as mitigation areas. Authorizes the
      City of Jacksonville and the St. Johns River Water
  8    Management District to jointly determine other areas to
      be afforded preference as mitigation lands. Defines
  9    "Better Jacksonville Plan" for purposes of the act.
      Provides sources of funds for wetland and surface water
10    mitigation. Provides procedure with respect to land
      acquisition. Requires preparation of an inventory of
11    wetland and surface water resources to be impacted.
      Provides for annual updating of the inventory and
12    specifies inventory contents. Requires the district to
      develop a mitigation plan annually. Requires annual
13    approval of a conceptual plan for mitigating impacts
      contained in the inventory by the governing board of the
14    district. Provides that approval of the mitigation plan,
      and of the conceptual plan, creates a presumption that
15    the mitigation contained therein satisfies the mitigation
      permitting requirements of ch. 373, F.S. Requires the
16    district to forward copies of the conceptual plan to, and
      seek to obtain formal concurrence of, specified federal
17    agencies. Provides procedure and requirements with
      respect to wetland and surface water mitigation.
18    Specifies powers of the district with regard to
      permitting. Provides funding requirements. Requires
19    specified deposits by permittees. Authorizes the district
      and the City of Jacksonville to enter into certain
20    agreements. Authorizes the district to enter into certain
      contracts. Provides specified powers of the district.
21    Provides procedure in the event that conceptual
      mitigation plans are not approved or adopted. Authorizes
22    exclusion of certain projects from the conceptual plan.
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