Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for CS for CS for HB 399
Barcode 631296
LEGISLATIVE ACTION
Senate . House
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Floor: WD/2R .
05/02/2011 03:47 PM .
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Senator Ring moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 273 - 280
4 and insert:
5 Section 8. Subsection (18) of section 373.414, Florida
6 Statutes, is amended to read:
7 373.414 Additional criteria for activities in surface
8 waters and wetlands.—
9 (18) The department, in coordination with and each water
10 management district responsible for implementation of the
11 environmental resource permitting program, shall develop a
12 uniform mitigation assessment method for wetlands and other
13 surface waters. The department shall adopt the uniform
14 mitigation assessment method by rule no later than July 31,
15 2002. The rule shall provide an exclusive, uniform, and
16 consistent process for determining the amount of mitigation
17 required to offset impacts to wetlands and other surface waters,
18 and, once effective, shall supersede all rules, ordinances, and
19 variance procedures from ordinances that determine the amount of
20 mitigation needed to offset such impacts. Except when evaluating
21 mitigation bank applications, which must meet the criteria of s.
22 373.4136(1), the rule shall be applied only after determining
23 that the mitigation is appropriate to offset the values and
24 functions of wetlands and surface waters to be adversely
25 impacted by the proposed activity. Once the department adopts
26 the uniform mitigation assessment method by rule, the uniform
27 mitigation assessment method shall be binding on the department,
28 the water management districts, local governments, and any other
29 governmental agencies and shall be the sole means to determine
30 the amount of mitigation needed to offset adverse impacts to
31 wetlands and other surface waters and to award and deduct
32 mitigation bank credits. A water management district and any
33 other governmental agency subject to chapter 120 may apply the
34 uniform mitigation assessment method without the need to adopt
35 it pursuant to s. 120.54. It shall be a goal of the department
36 and water management districts that the uniform mitigation
37 assessment method developed be practicable for use within the
38 timeframes provided in the permitting process and result in a
39 consistent process for determining mitigation requirements. It
40 shall be recognized that any such method shall require the
41 application of reasonable scientific judgment. The uniform
42 mitigation assessment method must determine the value of
43 functions provided by wetlands and other surface waters
44 considering the current conditions of these areas, utilization
45 by fish and wildlife, location, uniqueness, and hydrologic
46 connection, and, when applied to mitigation banks, the factors
47 listed in s. 373.4136(4). The uniform mitigation assessment
48 method shall also account for the expected time-lag associated
49 with offsetting impacts and the degree of risk associated with
50 the proposed mitigation. The uniform mitigation assessment
51 method shall account for different ecological communities in
52 different areas of the state. In developing the uniform
53 mitigation assessment method, the department and water
54 management districts shall consult with approved local programs
55 under s. 403.182 which have an established mitigation program
56 for wetlands or other surface waters. The department and water
57 management districts shall consider the recommendations
58 submitted by such approved local programs, including any
59 recommendations relating to the adoption by the department and
60 water management districts of any uniform mitigation methodology
61 that has been adopted and used by an approved local program in
62 its established mitigation program for wetlands or other surface
63 waters. Environmental resource permitting rules may establish
64 categories of permits or thresholds for minor impacts under
65 which the use of the uniform mitigation assessment method will
66 not be required. The application of the uniform mitigation
67 assessment method is not subject to s. 70.001. In the event the
68 rule establishing the uniform mitigation assessment method is
69 deemed to be invalid, the applicable rules related to
70 establishing needed mitigation in existence prior to the
71 adoption of the uniform mitigation assessment method, including
72 those adopted by a county which is an approved local program
73 under s. 403.182, and the method described in paragraph (b) for
74 existing mitigation banks, shall be authorized for use by the
75 department, water management districts, local governments, and
76 other state agencies.
77 (a) In developing the uniform mitigation assessment method,
78 the department shall seek input from the United States Army
79 Corps of Engineers in order to promote consistency in the
80 mitigation assessment methods used by the state and federal
81 permitting programs.
82 (b) An entity which has received a mitigation bank permit
83 prior to the adoption of the uniform mitigation assessment
84 method shall have impact sites assessed, for the purpose of
85 deducting bank credits, using the credit assessment method,
86 including any functional assessment methodology, which was in
87 place when the bank was permitted; unless the entity elects to
88 have its credits redetermined, and thereafter have its credits
89 deducted, using the uniform mitigation assessment method.
90 (c) The department shall ensure statewide coordination and
91 consistency in the interpretation and application of the uniform
92 mitigation assessment method rule by providing programmatic
93 training and guidance to staff of the department, water
94 management districts, and local governments. To ensure that the
95 uniform mitigation assessment method rule is interpreted and
96 applied uniformly, the department’s interpretation, guidance,
97 and approach to applying the uniform mitigation assessment
98 method rule shall govern.
99 (d) Applicants shall submit the information needed to
100 perform the assessment required under the uniform mitigation
101 assessment method rule, and may submit the qualitative
102 characterization and quantitative assessment for each assessment
103 area specified by the rule. The reviewing agency shall review
104 that information and notify the applicant of any inadequacy in
105 the information or application of the assessment method.
106 (e) When conducting qualitative characterization of
107 artificial wetlands and other surface waters, such as borrow
108 pits, ditches, and canals, under the uniform mitigation
109 assessment method rule, the native community type to which it is
110 most analogous in function shall be used as a reference. For
111 wetlands or other surface waters that have been altered from
112 their native community type, the historic community type at that
113 location shall be used as a reference, unless the alteration has
114 been of such a degree and extent that a different native
115 community type is now present and self-sustaining.
116 (f) When conducting qualitative characterization of upland
117 mitigation assessment areas, the characterization shall include
118 functions that the upland assessment area provides to the fish
119 and wildlife of the associated wetland or other surface waters.
120 These functions shall be considered when scoring the upland
121 assessment area for preservation, enhancement, or restoration.
122 Any increase in these functions resulting from activities in an
123 upland mitigation assessment area shall be accounted for in the
124 upland assessment area scoring.
125 (g) The term “preservation mitigation,” as used in the
126 uniform mitigation assessment method, means the protection of
127 important wetland, other surface water, or upland ecosystems
128 predominantly in their existing condition and absent
129 restoration, creation, or enhancement from adverse impacts by
130 placing a conservation easement or other comparable land use
131 restriction over the property or by donation of fee simple
132 interest in the property. Preservation may include a management
133 plan for perpetual protection of the area. The preservation
134 adjustment factor set forth in rule 62-345.500(3), Florida
135 Administrative Code, shall apply only to preservation
136 mitigation.
137 (h) When assessing a preservation mitigation assessment
138 area under the uniform mitigation assessment method, the
139 following shall apply:
140 1. “Without preservation” shall consider the reasonably
141 anticipated loss of functions and values provided by the
142 assessment area, assuming the area is not preserved.
143 2. Each of the considerations of the preservation
144 adjustment factor specified in rule 62-345.500(3)(a), Florida
145 Administrative Code, shall be equally weighted and scored on a
146 scale from 0, no value, to 0.2, optimal value. In addition, the
147 minimum preservation adjustment factor shall be 0.2.
148 (i) The location and landscape support scores, pursuant to
149 rule 62-345.500, Florida Administrative Code, may change in the
150 “with mitigation” or “with impact” condition in both upland and
151 wetland assessment areas, regardless of the initial community
152 structure or water environment scores.
153 (j) When a mitigation plan for creation, restoration, or
154 enhancement includes a preservation mechanism, such as a
155 conservation easement, the “with mitigation” assessment of that
156 creation, restoration, or enhancement shall consider, and the
157 scores shall reflect, the benefits of that preservation
158 mechanism, and the benefits of that preservation mechanism may
159 not be scored separately.
160 (k) Any entity holding a mitigation bank permit that was
161 evaluated under the uniform mitigation assessment rule before
162 the effective date of paragraphs (c)-(j) may submit a permit
163 modification request to the relevant permitting agency to have
164 such mitigation bank reassessed pursuant to the provisions set
165 forth in this section, and the relevant permitting agency shall
166 reassess such mitigation bank, if such request is filed with
167 that agency no later than September 30, 2011.
168 Section 9. Subsection (3) of section 403.813, Florida
169 Statutes, is amended to read:
170 403.813 Permits issued at district centers; exceptions.—
171 (3) A permit is not required under this chapter, chapter
172 373, chapter 61-691, Laws of Florida, or chapter 25214 or
173 chapter 25270, 1949, Laws of Florida, for maintenance dredging
174 conducted under this section by the seaports of Jacksonville,
175 Port Canaveral, Port Citrus, Fort Pierce, Palm Beach, Port
176 Everglades, Miami,
177
178 ================= T I T L E A M E N D M E N T ================
179 And the title is amended as follows:
180 Between lines 38 and 39
181 insert:
182 amending s. 373.414, F.S.; revising provisions for the
183 uniform mitigation assessment method rule for wetlands
184 and other surface waters; providing requirements for
185 the interpretation and application of the uniform
186 mitigation assessment method rule; providing an
187 exception; providing for “preservation mitigation” and
188 “without preservation” for the purposes of certain
189 assessments pursuant to the rule; providing for
190 reassessment of mitigation banks under certain
191 conditions;