Florida Senate - 2012                       CS for CS for SB 824
       
       
       
       By the Committees on Environmental Preservation and
       Conservation; and Transportation; and Senators Dean and Gaetz
       
       
       
       592-02647A-12                                          2012824c2
    1                        A bill to be entitled                      
    2         An act relating to mitigation; amending s. 373.4137,
    3         F.S.; revising legislative intent to encourage the use
    4         of other mitigation options that satisfy state and
    5         federal requirements; providing the Department of
    6         Transportation or a transportation authority the
    7         option of participating in a mitigation project;
    8         requiring a transportation authority that chooses to
    9         participate in the program to submit lists of its
   10         projects in the adopted work program to the water
   11         management districts; requiring a list rather than a
   12         survey of threatened or endangered species and species
   13         of special concern affected by a proposed project;
   14         providing conditions for the release of certain
   15         environmental mitigation funds; prohibiting a
   16         mitigation plan from being implemented unless the plan
   17         is submitted to and approved, in part or in its
   18         entirety, by the Department of Environmental
   19         Protection; providing additional factors that must be
   20         explained regarding the choice of mitigation bank;
   21         removing a provision requiring an explanation for
   22         excluding certain projects from the mitigation plan;
   23         providing criteria that the Department of
   24         Transportation must use in determining which projects
   25         to include or exclude in the mitigation plan; amending
   26         s. 373.4135, F.S.; limiting the circumstances under
   27         which a governmental entity may create or provide
   28         mitigation for a project other than its own project;
   29         specifying certain exceptions; providing an effective
   30         date.
   31  
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Subsections (1) and (2), paragraph (c) of
   35  subsection (3), and subsections (4) and (5) of section 373.4137,
   36  Florida Statutes, are amended to read:
   37         373.4137 Mitigation requirements for specified
   38  transportation projects.—
   39         (1) The Legislature finds that environmental mitigation for
   40  the impact of transportation projects proposed by the Department
   41  of Transportation or a transportation authority established
   42  pursuant to chapter 348 or chapter 349 can be more effectively
   43  achieved by regional, long-range mitigation planning rather than
   44  on a project-by-project basis. It is the intent of the
   45  Legislature that mitigation to offset the adverse effects of
   46  these transportation projects be funded by the Department of
   47  Transportation and be carried out by the water management
   48  districts, including the use of mitigation banks and any other
   49  mitigation options that satisfy state and federal requirements
   50  established pursuant to this part.
   51         (2) Environmental impact inventories for transportation
   52  projects proposed by the Department of Transportation or a
   53  transportation authority established pursuant to chapter 348 or
   54  chapter 349 shall be developed as follows:
   55         (a) By July 1 of each year, the Department of
   56  Transportation, or a transportation authority established
   57  pursuant to chapter 348 or chapter 349 which chooses to
   58  participate in the program, shall submit to the water management
   59  districts a list copy of its projects in the adopted work
   60  program and an environmental impact inventory of habitats
   61  addressed in the rules adopted pursuant to this part and s. 404
   62  of the Clean Water Act, 33 U.S.C. s. 1344, which may be impacted
   63  by its plan of construction for transportation projects in the
   64  next 3 years of the tentative work program. The Department of
   65  Transportation or a transportation authority established
   66  pursuant to chapter 348 or chapter 349 may also include in its
   67  environmental impact inventory the habitat impacts of any future
   68  transportation project. The Department of Transportation and
   69  each transportation authority established pursuant to chapter
   70  348 or chapter 349 may fund any mitigation activities for future
   71  projects using current year funds.
   72         (b) The environmental impact inventory shall include a
   73  description of these habitat impacts, including their location,
   74  acreage, and type; state water quality classification of
   75  impacted wetlands and other surface waters; any other state or
   76  regional designations for these habitats; and a list survey of
   77  threatened species, endangered species, and species of special
   78  concern affected by the proposed project.
   79         (3)
   80         (c) Except for current mitigation projects in the
   81  monitoring and maintenance phase and except as allowed by
   82  paragraph (d), the water management districts may request a
   83  transfer of funds from an escrow account no sooner than 30 days
   84  before prior to the date the funds are needed to pay for
   85  activities associated with development or implementation of the
   86  approved mitigation plan described in subsection (4) for the
   87  current fiscal year, including, but not limited to, design,
   88  engineering, production, and staff support. Actual conceptual
   89  plan preparation costs incurred before plan approval may be
   90  submitted to the Department of Transportation or the appropriate
   91  transportation authority each year with the plan. The conceptual
   92  plan preparation costs of each water management district will be
   93  paid from mitigation funds associated with the environmental
   94  impact inventory for the current year. The amount transferred to
   95  the escrow accounts each year by the Department of
   96  Transportation and participating transportation authorities
   97  established pursuant to chapter 348 or chapter 349 shall
   98  correspond to a cost per acre of $75,000 multiplied by the
   99  projected acres of impact identified in the environmental impact
  100  inventory described in subsection (2). However, the $75,000 cost
  101  per acre does not constitute an admission against interest by
  102  the state or its subdivisions and nor is not the cost admissible
  103  as evidence of full compensation for any property acquired by
  104  eminent domain or through inverse condemnation. Each July 1, the
  105  cost per acre shall be adjusted by the percentage change in the
  106  average of the Consumer Price Index issued by the United States
  107  Department of Labor for the most recent 12-month period ending
  108  September 30, compared to the base year average, which is the
  109  average for the 12-month period ending September 30, 1996. Each
  110  quarter, the projected acreage of impact shall be reconciled
  111  with the acreage of impact of projects as permitted, including
  112  permit modifications, pursuant to this part and s. 404 of the
  113  Clean Water Act, 33 U.S.C. s. 1344. The subject year’s transfer
  114  of funds shall be adjusted accordingly to reflect the acreage of
  115  impacts as permitted. The Department of Transportation and
  116  participating transportation authorities established pursuant to
  117  chapter 348 or chapter 349 are authorized to transfer such funds
  118  from the escrow accounts to the water management districts to
  119  carry out the mitigation programs. Environmental mitigation
  120  funds that are identified for or maintained in an escrow account
  121  for the benefit of a water management district may be released
  122  if the associated transportation project is excluded in whole or
  123  part from the mitigation plan. For a mitigation project that is
  124  in the maintenance and monitoring phase, the water management
  125  district may request and receive a one-time payment based on the
  126  project’s expected future maintenance and monitoring costs. Upon
  127  disbursement of the final maintenance and monitoring payment,
  128  the escrow account for the project established by the Department
  129  of Transportation or the participating transportation authority
  130  may be closed. Any interest earned on these disbursed funds
  131  shall remain with the water management district and must be used
  132  as authorized under this section.
  133         (4) Before Prior to March 1 of each year, each water
  134  management district, in consultation with the Department of
  135  Environmental Protection, the United States Army Corps of
  136  Engineers, the Department of Transportation, participating
  137  transportation authorities established pursuant to chapter 348
  138  or chapter 349, and other appropriate federal, state, and local
  139  governments, and other interested parties, including entities
  140  operating mitigation banks, shall develop a plan for the primary
  141  purpose of complying with the mitigation requirements adopted
  142  pursuant to this part and 33 U.S.C. s. 1344. In developing such
  143  plans, the districts shall use utilize sound ecosystem
  144  management practices to address significant water resource needs
  145  and shall focus on activities of the Department of Environmental
  146  Protection and the water management districts, such as surface
  147  water improvement and management (SWIM) projects and lands
  148  identified for potential acquisition for preservation,
  149  restoration, or enhancement, and the control of invasive and
  150  exotic plants in wetlands and other surface waters, to the
  151  extent that the such activities comply with the mitigation
  152  requirements adopted under this part and 33 U.S.C. s. 1344. In
  153  determining the activities to be included in the such plans, the
  154  districts shall also consider the purchase of credits from
  155  public or private mitigation banks permitted under s. 373.4136
  156  and associated federal authorization and shall include the such
  157  purchase as a part of the mitigation plan when the such purchase
  158  would offset the impact of the transportation project, provide
  159  equal benefits to the water resources than other mitigation
  160  options being considered, and provide the most cost-effective
  161  mitigation option. The mitigation plan shall be submitted to the
  162  water management district governing board, or its designee, for
  163  review and approval. At least 14 days before prior to approval,
  164  the water management district shall provide a copy of the draft
  165  mitigation plan to any person who has requested a copy. The plan
  166  may not be implemented until it is submitted to and approved, in
  167  part or in its entirety, by the Department of Environmental
  168  Protection.
  169         (a) For each transportation project with a funding request
  170  for the next fiscal year, the mitigation plan must include a
  171  brief explanation of why a mitigation bank was or was not chosen
  172  as a mitigation option, including an estimation of identifiable
  173  costs of the mitigation bank and nonbank options and other
  174  factors such as time saved, liability for success of the
  175  mitigation, and long-term maintenance to the extent practicable.
  176         (b) Specific projects may be excluded from the mitigation
  177  plan, in whole or in part, and are shall not be subject to this
  178  section upon the election agreement of the Department of
  179  Transportation, or a transportation authority if applicable, or
  180  and the appropriate water management district that the inclusion
  181  of such projects would hamper the efficiency or timeliness of
  182  the mitigation planning and permitting process. The water
  183  management district may choose to exclude a project in whole or
  184  in part if the district is unable to identify mitigation that
  185  would offset impacts of the project.
  186         (c) When determining which projects to include or exclude
  187  from the mitigation plan, the department shall investigate using
  188  credits from a permitted private mitigation bank before those
  189  projects are submitted to, or are allowed to remain in, the
  190  plan.
  191         1. The investigation shall include the cost-effectiveness
  192  of private mitigation bank credits.
  193         2. The cost-effectiveness analysis must be in writing and
  194  consider:
  195         a. How the nominal cost of the private mitigation bank
  196  credits compares with the nominal cost for any given project to
  197  be included in the plan;
  198         b. The value of complying with federal transportation
  199  policies for federal aid projects;
  200         c. The value that private mitigation bank credits provide
  201  as the result of the expedited approvals by the Army Corps of
  202  Engineers when private mitigation banks are used; and
  203         d. The value that private mitigation banks provide to the
  204  state and its residents as a result of the state and federal
  205  liability for the success of the mitigation transferring to the
  206  private mitigation bank when credits are purchased from the
  207  private mitigation bank.
  208         (5) The water management district shall ensure be
  209  responsible for ensuring that mitigation requirements pursuant
  210  to 33 U.S.C. s. 1344 are met for the impacts identified in the
  211  environmental impact inventory described in subsection (2), by
  212  implementation of the approved plan described in subsection (4)
  213  to the extent funding is provided by the Department of
  214  Transportation, or a transportation authority established
  215  pursuant to chapter 348 or chapter 349, if applicable. During
  216  the federal permitting process, the water management district
  217  may deviate from the approved mitigation plan in order to comply
  218  with federal permitting requirements.
  219         Section 2. Present paragraphs (b) through (e) of subsection
  220  (1) of section 373.4135, Florida Statutes, are redesignated as
  221  paragraphs (c) through (f), respectively, and a new paragraph
  222  (b) is added to that subsection, to read:
  223         373.4135 Mitigation banks and offsite regional mitigation.—
  224         (1) The Legislature finds that the adverse impacts of
  225  activities regulated under this part may be offset by the
  226  creation, maintenance, and use of mitigation banks and offsite
  227  regional mitigation. Mitigation banks and offsite regional
  228  mitigation can enhance the certainty of mitigation and provide
  229  ecological value due to the improved likelihood of environmental
  230  success associated with their proper construction, maintenance,
  231  and management. Therefore, the department and the water
  232  management districts are directed to participate in and
  233  encourage the establishment of private and public mitigation
  234  banks and offsite regional mitigation. Mitigation banks and
  235  offsite regional mitigation should emphasize the restoration and
  236  enhancement of degraded ecosystems and the preservation of
  237  uplands and wetlands as intact ecosystems rather than alteration
  238  of landscapes to create wetlands. This is best accomplished
  239  through restoration of ecological communities that were
  240  historically present.
  241         (b) Notwithstanding the provisions of this section, a
  242  governmental entity may not create or provide mitigation for a
  243  project other than its own unless the governmental entity uses
  244  land that was not previously purchased for conservation and
  245  unless the governmental entity provides the same financial
  246  assurances as required for mitigation banks permitted under s.
  247  373.4136. This paragraph does not apply to:
  248         1. Mitigation banks permitted before December 31, 2011,
  249  under s. 373.4136;
  250         2. Offsite regional mitigation areas established before
  251  December 31, 2011, under subsection (6);
  252         3. Mitigation for transportation projects under ss.
  253  373.4137 and 373.4139;
  254         4. Mitigation for impacts from mining activities under s.
  255  373.41492;
  256         5. Mitigation provided for single-family lots or homeowners
  257  under subsection (6);
  258         6. Mitigation provided for electric utility impacts
  259  certified under part II of chapter 403; or
  260         7. Mitigation provided on sovereignty submerged lands under
  261  subsection (6).
  262         Section 3. This act shall take effect upon becoming a law.