HB 1175

1	A bill to be entitled
2	An act relating to management and storage of surface
3	waters; amending s. 373.4135, F.S.; revising legislative
4	intent relating to certain rules of the Department of
5	Environmental Protection and water management districts
6	relating to mitigation banks and offsite regional
7	mitigation; amending s. 373.414, F.S.; revising criteria
8	for issuing permits for projects affecting surface waters
9	and wetlands; requiring the department to provide training
10	and guidance for applying the uniform mitigation
11	assessment method; requiring the department to provide a
12	formal determination process by rule to assess property
13	for the establishment of proposed mitigation banks;
14	providing procedures and requirements; authorizing water
15	management districts to take action on petitions for such
16	determinations; providing a fee; providing for revocation;
17	providing for final agency action and application of ch.
18	120, F.S.; providing for application of specified permit
19	processing requirements; authorizing formal determinations
20	to be petitioned in conjunction with other determinations;
21	providing an effective date.
22
23	Be It Enacted by the Legislature of the State of Florida:
24
25	Section 1.  Paragraph (b) of subsection (1) of section
26	373.4135, Florida Statutes, is amended to read:
27	373.4135  Mitigation banks and offsite regional
28	mitigation.-
29	(1)  The Legislature finds that the adverse impacts of
30	activities regulated under this part may be offset by the
31	creation, maintenance, and use of mitigation banks and offsite
32	regional mitigation. Mitigation banks and offsite regional
33	mitigation can enhance the certainty of mitigation and provide
34	ecological value due to the improved likelihood of environmental
35	success associated with their proper construction, maintenance,
36	and management. Therefore, the department and the water
37	management districts are directed to participate in and
38	encourage the establishment of private and public mitigation
39	banks and offsite regional mitigation. Mitigation banks and
40	offsite regional mitigation should emphasize the restoration and
41	enhancement of degraded ecosystems and the preservation of
42	uplands and wetlands as intact ecosystems rather than alteration
43	of landscapes to create wetlands. This is best accomplished
44	through restoration of ecological communities that were
45	historically present.
46	(b)  It is the further intent of the Legislature that
47	mitigation banks and offsite regional mitigation be considered
48	appropriate and a permittable mitigation option under the
49	conditions specified by the rules of the department and water
50	management districts and that such rules shall include a
51	preference for the use of mitigation banks consistent with the
52	provisions of 33 C.F.R. s. 332.3(b)(2).
53	Section 2.  Subsection (18) of section 373.414, Florida
54	Statutes, is amended to read:
55	373.414  Additional criteria for activities in surface
56	waters and wetlands.-
57	(18)  The department and each water management district
58	responsible for implementation of the environmental resource
59	permitting program shall develop a uniform mitigation assessment
60	method for wetlands and other surface waters. The department
61	shall adopt the uniform mitigation assessment method by rule no
62	later than July 31, 2002. The rule shall provide an exclusive
63	and consistent process for determining the amount of mitigation
64	required to offset impacts to wetlands and other surface waters,
65	and, once effective, shall supersede all rules, ordinances, and
66	variance procedures from ordinances that determine the amount of
67	mitigation needed to offset such impacts. Once the department
68	adopts the uniform mitigation assessment method by rule, the
69	uniform mitigation assessment method shall be binding on the
70	department, the water management districts, local governments,
71	and any other governmental agencies and shall be the sole means
72	to determine the amount of mitigation needed to offset adverse
73	impacts to wetlands and other surface waters and to award and
74	deduct mitigation bank credits. A water management district and
75	any other governmental agency subject to chapter 120 may apply
76	the uniform mitigation assessment method without the need to
77	adopt it pursuant to s. 120.54. It shall be a goal of the
78	department and water management districts that the uniform
79	mitigation assessment method developed be practicable for use
80	within the timeframes provided in the permitting process and
81	result in a consistent process for determining mitigation
82	requirements. It shall be recognized that any such method shall
83	require the application of reasonable scientific judgment. The
84	uniform mitigation assessment method must determine the value of
85	functions provided by wetlands and other surface waters
86	considering the current conditions of these areas, utilization
87	by fish and wildlife, location, uniqueness, and hydrologic
88	connection, and, when applied to mitigation banks, the factors
89	listed in s. 373.4136(4). The uniform mitigation assessment
90	method shall also account for the expected time-lag associated
91	with offsetting impacts and the degree of risk associated with
92	the proposed mitigation. The uniform mitigation assessment
93	method shall account for different ecological communities in
94	different areas of the state. In developing the uniform
95	mitigation assessment method, the department and water
96	management districts shall consult with approved local programs
97	under s. 403.182 which have an established mitigation program
98	for wetlands or other surface waters. The department and water
99	management districts shall consider the recommendations
100	submitted by such approved local programs, including any
101	recommendations relating to the adoption by the department and
102	water management districts of any uniform mitigation methodology
103	that has been adopted and used by an approved local program in
104	its established mitigation program for wetlands or other surface
105	waters. Environmental resource permitting rules may establish
106	categories of permits or thresholds for minor impacts under
107	which the use of the uniform mitigation assessment method will
108	not be required. The application of the uniform mitigation
109	assessment method is not subject to s. 70.001. In the event the
110	rule establishing the uniform mitigation assessment method is
111	deemed to be invalid, the applicable rules related to
112	establishing needed mitigation in existence prior to the
113	adoption of the uniform mitigation assessment method, including
114	those adopted by a county which is an approved local program
115	under s. 403.182, and the method described in paragraph (b) for
116	existing mitigation banks, shall be authorized for use by the
117	department, water management districts, local governments, and
118	other state agencies. The department shall provide training and
119	guidance for the application of the uniform mitigation
120	assessment method and shall be available to address questions
121	regarding such application.
122	(a)  In developing the uniform mitigation assessment
123	method, the department shall seek input from the United States
124	Army Corps of Engineers in order to promote consistency in the
125	mitigation assessment methods used by the state and federal
126	permitting programs.
127	(b)  An entity which has received a mitigation bank permit
128	prior to the adoption of the uniform mitigation assessment
129	method shall have impact sites assessed, for the purpose of
130	deducting bank credits, using the credit assessment method,
131	including any functional assessment methodology, which was in
132	place when the bank was permitted; unless the entity elects to
133	have its credits redetermined, and thereafter have its credits
134	deducted, using the uniform mitigation assessment method.
135	(c)  The department shall provide a formal determination
136	process by rule to assess a parcel of land pursuant to the
137	uniform mitigation assessment method for potential establishment
138	of a mitigation bank. The rule shall specify the information
139	that must be provided and may require authorization to enter
140	upon the property. The rule shall also establish procedures for
141	applying for, processing, and issuing a formal determination.
142	Once the department has adopted the rule, a water management
143	district may receive and take final agency action on petitions
144	for such determinations without the need to adopt the rule
145	pursuant to s. 120.54. By interagency agreement, the department
146	and each water management district shall determine which agency
147	shall implement the determination process within the district.
148	Upon adoption of the rule, any person with the written consent
149	of the property owner, an entity that has the power of eminent
150	domain, or any other person who has legal or equitable interest
151	in the property may petition the district for a formal
152	determination. If a petitioner does not provide information
153	regarding potential impacts or mitigation activities for the
154	property, the water management district or the department shall
155	only assess the current condition of the property or the
156	condition of the property without the proposed mitigation. A
157	water management district may authorize its executive director
158	to issue formal determinations. The water management district or
159	the department may establish by rule a fee to cover the costs of
160	processing and acting upon the petition. A water management
161	district or the department may publish, or require the
162	petitioner to publish at the petitioner's expense, notice of the
163	intended agency action on a petition for a formal determination
164	in a newspaper of general circulation within the affected area.
165	1.  A formal determination for an assessment of the current
166	condition of a property or the condition of the property without
167	the proposed mitigation is binding for a period not to exceed 5
168	years as long as physical conditions on the property do not
169	change, other than changes that have been authorized by a permit
170	pursuant to this part, so as to alter the ecological conditions
171	of the uplands, wetlands, or other surface waters assessed
172	pursuant to this paragraph. A formal determination for an
173	assessment of the condition of a property with the proposed
174	mitigation is binding for a period not to exceed 5 years as long
175	as the mitigation has not changed.
176	2.  Within 60 days prior to the expiration of a formal
177	determination, the holder of the determination, with the written
178	consent of the property owner, an entity that has the power of
179	eminent domain, or any other person who has legal or equitable
180	interest in the property, may petition for a new formal
181	determination for the same parcel of property. Such
182	determination approving the same uniform mitigation assessment
183	in the previous formal determination shall be issued as long as
184	physical conditions on the property have not changed, other than
185	changes that have been authorized by a permit pursuant to this
186	part, so as to alter the ecological conditions of the uplands,
187	wetlands, or other surface waters and the uniform mitigation
188	assessment methodology authorized by this subsection has not
189	been amended since the previous formal determination or the
190	proposed impacts or mitigation for the assessed property have
191	not changed. The holder of a determination may also apply to
192	modify the determination to reflect changed physical conditions
193	on the property or new or modified proposed impacts or
194	mitigation. The application fee for such a subsequent petition
195	shall be less than the application fee for the original
196	determination.
197	3.  A water management district or the department may
198	revoke a formal determination if it finds that the petitioner
199	has submitted inaccurate information.
200	4.  A formal determination obtained under this paragraph is
201	final agency action and is in lieu of a declaratory statement of
202	jurisdiction obtainable under s. 120.565. Sections 120.569,
203	120.57, and 373.4141 apply to formal determinations under this
204	paragraph.
205	5.  A formal determination of the extent of surface waters
206	and wetlands pursuant to s. 373.421 may be petitioned in
207	conjunction with a formal determination under this paragraph.
208	Section 3.  This act shall take effect July 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.