Florida Senate - 2011                          SENATOR AMENDMENT
       Bill No. CS/CS/CS/HB 1363, 1st Eng.
                                Barcode 911280                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       Senator Bennett moved the following:
    1         Senate Amendment to Amendment (302038) (with title
    2  amendment)
    4         Between lines 1844 and 1845
    5  insert:
    6         Section 35. Subsection (4) of section 373.4136, Florida
    7  Statutes, is amended to read:
    8         373.4136 Establishment and operation of mitigation banks.—
    9         (4) MITIGATION CREDITS.—After evaluating the information
   10  submitted by the applicant for a mitigation bank permit and
   11  assessing the proposed mitigation bank pursuant to the criteria
   12  in this section, the department or water management district
   13  shall award a number of mitigation credits to a proposed
   14  mitigation bank or phase of such mitigation bank. An entity
   15  establishing and operating a mitigation bank may apply to modify
   16  the mitigation bank permit to seek the award of additional
   17  mitigation credits if the mitigation bank results in an
   18  additional increase in ecological value over the value
   19  contemplated at the time of the original permit issuance, or the
   20  most recent modification thereto involving the number of credits
   21  awarded. The number of credits awarded shall be based on the
   22  degree of improvement in ecological value expected to result
   23  from the establishment and operation of the mitigation bank as
   24  determined using the uniform mitigation assessment method
   25  adopted under s. 373.414(18).a functional assessment
   26  methodology. In determining the degree of improvement in
   27  ecological value, each of the following factors, at a minimum,
   28  shall be evaluated:
   29         (a) The extent to which target hydrologic regimes can be
   30  achieved and maintained.
   31         (b) The extent to which management activities promote
   32  natural ecological conditions, such as natural fire patterns.
   33         (c) The proximity of the mitigation bank to areas with
   34  regionally significant ecological resources or habitats, such as
   35  national or state parks, Outstanding National Resource Waters
   36  and associated watersheds, Outstanding Florida Waters and
   37  associated watersheds, and lands acquired through governmental
   38  or nonprofit land acquisition programs for environmental
   39  conservation; and the extent to which the mitigation bank
   40  establishes corridors for fish, wildlife, or listed species to
   41  those resources or habitats.
   42         (d) The quality and quantity of wetland or upland
   43  restoration, enhancement, preservation, or creation.
   44         (e) The ecological and hydrological relationship between
   45  wetlands and uplands in the mitigation bank.
   46         (f) The extent to which the mitigation bank provides
   47  habitat for fish and wildlife, especially habitat for species
   48  listed as threatened, endangered, or of special concern, or
   49  provides habitats that are unique for that mitigation service
   50  area.
   51         (g) The extent to which the lands that are to be preserved
   52  are already protected by existing state, local, or federal
   53  regulations or land use restrictions.
   54         (h) The extent to which lands to be preserved would be
   55  adversely affected if they were not preserved.
   56         (i) Any special designation or classification of the
   57  affected waters and lands.
   58         Section 36. Subsection (18) of section 373.414, Florida
   59  Statutes, is amended to read:
   60         373.414 Additional criteria for activities in surface
   61  waters and wetlands.—
   62         (18) The department in coordination with and each water
   63  management district responsible for implementation of the
   64  environmental resource permitting program shall develop a
   65  uniform mitigation assessment method for wetlands and other
   66  surface waters. The department shall adopt the uniform
   67  mitigation assessment method by rule no later than July 31,
   68  2002. The rule shall provide an exclusive, uniform and
   69  consistent process for determining the amount of mitigation
   70  required to offset impacts to wetlands and other surface waters,
   71  and, once effective, shall supersede all rules, ordinances, and
   72  variance procedures from ordinances that determine the amount of
   73  mitigation needed to offset such impacts. Except when evaluating
   74  mitigation bank applications, which must meet the criteria of
   75  373.4136(1), F.S., the rule shall only be applied after
   76  determining that the mitigation is appropriate to offset the
   77  values and functions of wetlands and surface waters to be
   78  adversely impacted by the proposed activity. Once the department
   79  adopts the uniform mitigation assessment method by rule, the
   80  uniform mitigation assessment method shall be binding on the
   81  department, the water management districts, local governments,
   82  and any other governmental agencies and shall be the sole means
   83  to determine the amount of mitigation needed to offset adverse
   84  impacts to wetlands and other surface waters and to award and
   85  deduct mitigation bank credits. A water management district and
   86  any other governmental agency subject to chapter 120 may apply
   87  the uniform mitigation assessment method without the need to
   88  adopt it pursuant to s. 120.54. It shall be a goal of the
   89  department and water management districts that the uniform
   90  mitigation assessment method developed be practicable for use
   91  within the timeframes provided in the permitting process and
   92  result in a consistent process for determining mitigation
   93  requirements. It shall be recognized that any such method shall
   94  require the application of reasonable scientific judgment. The
   95  uniform mitigation assessment method must determine the value of
   96  functions provided by wetlands and other surface waters
   97  considering the current conditions of these areas, utilization
   98  by fish and wildlife, location, uniqueness, and hydrologic
   99  connection, and, when applied to mitigation banks, the factors
  100  listed in s. 373.4136(4). The uniform mitigation assessment
  101  method shall also account for the expected time-lag associated
  102  with offsetting impacts and the degree of risk associated with
  103  the proposed mitigation. The uniform mitigation assessment
  104  method shall account for different ecological communities in
  105  different areas of the state. In developing the uniform
  106  mitigation assessment method, the department and water
  107  management districts shall consult with approved local programs
  108  under s. 403.182 which have an established mitigation program
  109  for wetlands or other surface waters. The department and water
  110  management districts shall consider the recommendations
  111  submitted by such approved local programs, including any
  112  recommendations relating to the adoption by the department and
  113  water management districts of any uniform mitigation methodology
  114  that has been adopted and used by an approved local program in
  115  its established mitigation program for wetlands or other surface
  116  waters. Environmental resource permitting rules may establish
  117  categories of permits or thresholds for minor impacts under
  118  which the use of the uniform mitigation assessment method will
  119  not be required. The application of the uniform mitigation
  120  assessment method is not subject to s. 70.001. In the event the
  121  rule establishing the uniform mitigation assessment method is
  122  deemed to be invalid, the applicable rules related to
  123  establishing needed mitigation in existence prior to the
  124  adoption of the uniform mitigation assessment method, including
  125  those adopted by a county which is an approved local program
  126  under s. 403.182, and the method described in paragraph (b) for
  127  existing mitigation banks, shall be authorized for use by the
  128  department, water management districts, local governments, and
  129  other state agencies.
  130         (a) In developing the uniform mitigation assessment method,
  131  the department shall seek input from the United States Army
  132  Corps of Engineers in order to promote consistency in the
  133  mitigation assessment methods used by the state and federal
  134  permitting programs.
  135         (b) An entity which has received a mitigation bank permit
  136  prior to the adoption of the uniform mitigation assessment
  137  method shall have impact sites assessed, for the purpose of
  138  deducting bank credits, using the credit assessment method,
  139  including any functional assessment methodology, which was in
  140  place when the bank was permitted; unless the entity elects to
  141  have its credits redetermined, and thereafter have its credits
  142  deducted, using the uniform mitigation assessment method.
  143         (c) The department shall ensure statewide coordination and
  144  consistency in the interpretation and application of the uniform
  145  mitigation assessment method rule by providing programmatic
  146  training and guidance to staff of the department, water
  147  management districts, and local governments. To ensure that the
  148  uniform mitigation assessment method rule is interpreted and
  149  applied uniformly, the department’s interpretation, guidance,
  150  and approach to applying the uniform mitigation assessment
  151  method rule shall govern.
  152  (d) Applicants shall submit the information needed to perform
  153  the assessment required under the uniform mitigation assessment
  154  method rule, and may submit the qualitative characterization and
  155  quantitative assessment for each assessment area specified by
  156  the rule. The reviewing agency shall review that information and
  157  notify the applicant of any inadequacy in the information or
  158  application of the assessment method.
  159  (e) When conducting qualitative characterization of artificial
  160  wetlands and other surface waters, such as borrow pits, ditches,
  161  and canals under the uniform mitigation assessment method rule,
  162  the native community type to which it is most analogous in
  163  function shall be used as a reference. For wetlands or other
  164  surface waters that have been altered from their native
  165  community type, the historic community type at that location
  166  shall be used as a reference, unless the alteration has been of
  167  such a degree and extent that a different native community type
  168  is now present and self sustaining.
  169  (f) When conducting qualitative characterization of upland
  170  mitigation assessment areas, the characterization shall include
  171  functions that the upland assessment area provides to the fish
  172  and wildlife of the associated wetland or other surface waters.
  173  These functions shall be considered when scoring the upland
  174  assessment area for preservation, enhancement, or restoration.
  175  Any increase in these functions resulting from activities in an
  176  upland mitigation assessment area shall be accounted for in the
  177  upland assessment area scoring.
  178  (g) The term “preservation mitigation,” as used in the uniform
  179  mitigation assessment method, means the protection of important
  180  wetland, other surface water or upland ecosystems predominantly
  181  in their existing condition and absent restoration, creation or
  182  enhancement from adverse impacts by placing a conservation
  183  easement or other comparable land use restriction over the
  184  property or by donation of fee simple interest in the property.
  185  Preservation may include a management plan for perpetual
  186  protection of the area. The preservation adjustment factor set
  187  forth in rule 62-345.500(3), Florida Administrative Code, shall
  188  only apply to preservation mitigation.
  189  (h) When assessing a preservation mitigation assessment area
  190  under the uniform mitigation assessment method the following
  191  shall apply:
  192  1. “Without preservation” shall consider the reasonably
  193  anticipated loss of functions and values provided by the
  194  assessment area, assuming the area is not preserved.
  195  2. Each of the considerations of the preservation adjustment
  196  factor specified in Rule 62-345.500(3)(a), Florida
  197  Administrative Code shall be equally weighted and scored on a
  198  scale from 0, no value, to 0.2, optimal value. In addition, the
  199  minimum preservation adjustment factor shall be 0.2.
  200  (i) The location and landscape support scores, pursuant to rule
  201  62-345.500, Florida Administrative Code, may change in the “with
  202  mitigation” or “with impact” condition in both upland and
  203  wetland assessment areas, regardless of the initial community
  204  structure or water environment scores.
  205  (j) When a mitigation plan for creation, restoration, or
  206  enhancement includes a preservation mechanism, such as a
  207  conservation easement, the “with mitigation” assessment of that
  208  creation, restoration, or enhancement shall consider, and the
  209  scores shall reflect, the benefits of that preservation
  210  mechanism, and the benefits of that preservation mechanism may
  211  not be scored separately.
  212         (k) Any entity holding a mitigation bank permit that was
  213  evaluated under the uniform mitigation assessment rule before
  214  the effective date of paragraphs (c) - (j) may submit a permit
  215  modification request to the relevant permitting agency to have
  216  such mitigation bank reassessed pursuant to the provisions set
  217  forth in this section, and the relevant permitting agency shall
  218  reassess such mitigation bank, if such request is filed with
  219  that agency no later than September 30, 2011.
  221  ================= T I T L E  A M E N D M E N T ================
  222         And the title is amended as follows:
  223         Between lines 3804 and 3805
  224  insert:
  225         amending s. 373.4136, F.S.; revising evaluation
  226         methods for mitigation credits; amending s. 373.414,
  227         F.S.; revising the uniform mitigation assessment
  228         methology;