HB 599

A bill to be entitled
2An act relating to mitigation requirements for
3transportation projects; amending s. 373.4137, F.S.;
4revising legislative intent to encourage the use of
5other mitigation options that satisfy state and
6federal requirements; providing the Department of
7Transportation or a transportation authority the
8option of participating in a mitigation project;
9requiring the Department of Transportation or a
10transportation authority to submit lists of its
11projects in the adopted work program to the water
12management districts; requiring a list rather than a
13survey of threatened or endangered species and species
14of special concern affected by a proposed project;
15providing conditions for the release of certain
16environmental mitigation funds; prohibiting a
17mitigation plan from being implemented unless the plan
18is submitted to and approved by the Department of
19Environmental Protection; providing additional factors
20that must be explained regarding the choice of
21mitigation bank; removing a provision requiring an
22explanation for excluding certain projects from the
23mitigation plan; providing criteria that the
24Department of Transportation must use in determining
25which projects to include or exclude in the mitigation
26plan; prohibiting a governmental entity from providing
27or creating mitigation except under specified
28circumstances; providing an effective date.
30Be It Enacted by the Legislature of the State of Florida:
32     Section 1.  Subsections (1) and (2), paragraph (c) of
33subsection (3), and subsections (4) and (5) of section 373.4137,
34Florida Statutes, are amended, and subsection (10) is added to
35that section, to read:
36     373.4137  Mitigation requirements for specified
37transportation projects.-
38     (1)  The Legislature finds that environmental mitigation
39for the impact of transportation projects proposed by the
40Department of Transportation or a transportation authority
41established pursuant to chapter 348 or chapter 349 can be more
42effectively achieved by regional, long-range mitigation planning
43rather than on a project-by-project basis. It is the intent of
44the Legislature that mitigation to offset the adverse effects of
45these transportation projects be funded by the Department of
46Transportation and be carried out by the water management
47districts, including the use of mitigation banks and any other
48mitigation options that satisfy state and federal requirements
49established pursuant to this part.
50     (2)  Environmental impact inventories for transportation
51projects proposed by the Department of Transportation or a
52transportation authority established pursuant to chapter 348 or
53chapter 349 shall be developed as follows:
54     (a)  By July 1 of each year, the Department of
55Transportation or a transportation authority established
56pursuant to chapter 348 or chapter 349 which chooses to
57participate in the program shall submit to the water management
58districts a list copy of its projects in the adopted work
59program and an environmental impact inventory of habitats
60addressed in the rules adopted pursuant to this part and s. 404
61of the Clean Water Act, 33 U.S.C. s. 1344, which may be impacted
62by its plan of construction for transportation projects in the
63next 3 years of the tentative work program. The Department of
64Transportation or a transportation authority established
65pursuant to chapter 348 or chapter 349 may also include in its
66environmental impact inventory the habitat impacts of any future
67transportation project. The Department of Transportation and
68each transportation authority established pursuant to chapter
69348 or chapter 349 may fund any mitigation activities for future
70projects using current year funds.
71     (b)  The environmental impact inventory shall include a
72description of these habitat impacts, including their location,
73acreage, and type; state water quality classification of
74impacted wetlands and other surface waters; any other state or
75regional designations for these habitats; and a list survey of
76threatened species, endangered species, and species of special
77concern affected by the proposed project.
78     (3)
79     (c)  Except for current mitigation projects in the
80monitoring and maintenance phase and except as allowed by
81paragraph (d), the water management districts may request a
82transfer of funds from an escrow account no sooner than 30 days
83before prior to the date the funds are needed to pay for
84activities associated with development or implementation of the
85approved mitigation plan described in subsection (4) for the
86current fiscal year, including, but not limited to, design,
87engineering, production, and staff support. Actual conceptual
88plan preparation costs incurred before plan approval may be
89submitted to the Department of Transportation or the appropriate
90transportation authority each year with the plan. The conceptual
91plan preparation costs of each water management district will be
92paid from mitigation funds associated with the environmental
93impact inventory for the current year. The amount transferred to
94the escrow accounts each year by the Department of
95Transportation and participating transportation authorities
96established pursuant to chapter 348 or chapter 349 shall
97correspond to a cost per acre of $75,000 multiplied by the
98projected acres of impact identified in the environmental impact
99inventory described in subsection (2). However, the $75,000 cost
100per acre does not constitute an admission against interest by
101the state or its subdivisions and nor is not the cost admissible
102as evidence of full compensation for any property acquired by
103eminent domain or through inverse condemnation. Each July 1, the
104cost per acre shall be adjusted by the percentage change in the
105average of the Consumer Price Index issued by the United States
106Department of Labor for the most recent 12-month period ending
107September 30, compared to the base year average, which is the
108average for the 12-month period ending September 30, 1996. Each
109quarter, the projected acreage of impact shall be reconciled
110with the acreage of impact of projects as permitted, including
111permit modifications, pursuant to this part and s. 404 of the
112Clean Water Act, 33 U.S.C. s. 1344. The subject year's transfer
113of funds shall be adjusted accordingly to reflect the acreage of
114impacts as permitted. The Department of Transportation and
115participating transportation authorities established pursuant to
116chapter 348 or chapter 349 are authorized to transfer such funds
117from the escrow accounts to the water management districts to
118carry out the mitigation programs. Environmental mitigation
119funds that are identified for or maintained in an escrow account
120for the benefit of a water management district may be released
121if the associated transportation project is excluded in whole or
122part from the mitigation plan. For a mitigation project that is
123in the maintenance and monitoring phase, the water management
124district may request and receive a one-time payment based on the
125project's expected future maintenance and monitoring costs. Upon
126disbursement of the final maintenance and monitoring payment,
127the escrow account for the project established by the Department
128of Transportation or the participating transportation authority
129may be closed. Any interest earned on these disbursed funds
130shall remain with the water management district and must be used
131as authorized under this section.
132     (4)  Before Prior to March 1 of each year, each water
133management district, in consultation with the Department of
134Environmental Protection, the United States Army Corps of
135Engineers, the Department of Transportation, participating
136transportation authorities established pursuant to chapter 348
137or chapter 349, and other appropriate federal, state, and local
138governments, and other interested parties, including entities
139operating mitigation banks, shall develop a plan for the primary
140purpose of complying with the mitigation requirements adopted
141pursuant to this part and 33 U.S.C. s. 1344. In developing such
142plans, the districts shall use utilize sound ecosystem
143management practices to address significant water resource needs
144and shall focus on activities of the Department of Environmental
145Protection and the water management districts, such as surface
146water improvement and management (SWIM) projects and lands
147identified for potential acquisition for preservation,
148restoration, or enhancement, and the control of invasive and
149exotic plants in wetlands and other surface waters, to the
150extent that the such activities comply with the mitigation
151requirements adopted under this part and 33 U.S.C. s. 1344. In
152determining the activities to be included in the such plans, the
153districts shall also consider the purchase of credits from
154public or private mitigation banks permitted under s. 373.4136
155and associated federal authorization and shall include the such
156purchase as a part of the mitigation plan when the such purchase
157would offset the impact of the transportation project, provide
158equal benefits to the water resources than other mitigation
159options being considered, and provide the most cost-effective
160mitigation option. The mitigation plan shall be submitted to the
161water management district governing board, or its designee, for
162review and approval. At least 14 days before prior to approval,
163the water management district shall provide a copy of the draft
164mitigation plan to any person who has requested a copy. The plan
165may not be implemented until it is submitted to and approved by
166the Department of Environmental Protection.
167     (a)  For each transportation project with a funding request
168for the next fiscal year, the mitigation plan must include a
169brief explanation of why a mitigation bank was or was not chosen
170as a mitigation option, including an estimation of identifiable
171costs of the mitigation bank and nonbank options and other
172factors such as time saved, liability for success of the
173mitigation, and long-term maintenance to the extent practicable.
174     (b)  Specific projects may be excluded from the mitigation
175plan, in whole or in part, and are shall not be subject to this
176section upon the election agreement of the Department of
177Transportation, or a transportation authority if applicable, or
178and the appropriate water management district that the inclusion
179of such projects would hamper the efficiency or timeliness of
180the mitigation planning and permitting process. The water
181management district may choose to exclude a project in whole or
182in part if the district is unable to identify mitigation that
183would offset impacts of the project.
184     (c)  When determining which projects to include or exclude
185from the mitigation plan, the department shall investigate using
186credits from a permitted private mitigation bank before those
187projects are submitted to, or are allowed to remain in, the
189     1.  The investigation shall include the cost-effectiveness
190of private mitigation bank credits.
191     2.  The cost-effectiveness analysis must be in writing and
193     a.  How the nominal cost of the private mitigation bank
194credits compares with the nominal cost for any given project to
195be included in the plan;
196     b.  The value of complying with federal transportation
197policies for federal aid projects;
198     c.  The value that private mitigation bank credits provide
199as the result of the expedited approvals by the Army Corps of
200Engineers when private mitigation banks are used; and
201     d.  The value that private mitigation banks provide to the
202state and its residents as a result of the state and federal
203liability for the success of the mitigation transferring to the
204private mitigation bank when credits are purchased from the
205private mitigation bank.
206     (5)  The water management district shall ensure be
207responsible for ensuring that mitigation requirements pursuant
208to 33 U.S.C. s. 1344 are met for the impacts identified in the
209environmental impact inventory described in subsection (2), by
210implementation of the approved plan described in subsection (4)
211to the extent funding is provided by the Department of
212Transportation, or a transportation authority established
213pursuant to chapter 348 or chapter 349, if applicable. During
214the federal permitting process, the water management district
215may deviate from the approved mitigation plan in order to comply
216with federal permitting requirements.
217     (10)  Except when a governmental entity is part of the
218program established by this section, a governmental entity may
219not create or provide mitigation unless the mitigation is for
220the governmental entity's own project, uses new land that has
221not been previously purchased for conservation, does not compete
222with any permitted, privately owned mitigation bank, and has all
223of its current and future liabilities prefunded in a cash
224account, or other equivalent financial instrument typically used
225by private mitigation banks, and established solely for that
227     Section 2.  This act shall take effect July 1, 2012.

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