Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. SB 1104
       
       
       
       
       
       
                                Barcode 396914                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/25/2013           .                                
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       The Committee on Transportation (Brandes) recommended the
       following:
       
    1         Senate Amendment 
    2  
    3         Delete lines 57 - 445
    4  and insert:
    5         373.4137 Mitigation requirements for specified
    6  transportation projects.—
    7         (1) The Legislature finds that environmental mitigation for
    8  the impact of transportation projects proposed by the Department
    9  of Transportation or a transportation authority established
   10  pursuant to chapter 348 or chapter 349 can be more effectively
   11  achieved by regional, long-range mitigation planning rather than
   12  on a project-by-project basis. It is the intent of the
   13  Legislature that mitigation to offset the adverse effects of
   14  these transportation projects be funded by the Department of
   15  Transportation and be carried out by the use of mitigation banks
   16  and any other mitigation options that satisfy state and federal
   17  requirements in an efficient, timely, and cost-effective manner.
   18         (2) Environmental impact inventories for transportation
   19  projects proposed by the Department of Transportation or a
   20  transportation authority established pursuant to chapter 348 or
   21  chapter 349 shall be developed as follows:
   22         (a) By July 1 of each year, the Department of
   23  Transportation, or a transportation authority established
   24  pursuant to chapter 348 or chapter 349 which chooses to
   25  participate in the program, shall submit to the water management
   26  districts a list of its projects in the adopted work program and
   27  an environmental impact inventory of habitat impacts and the
   28  proposed amount of mitigation needed to offset impacts as
   29  described in paragraph (b). The environmental impact inventory
   30  must be based on habitats addressed in the rules adopted
   31  pursuant to this part, and s. 404 of the Clean Water Act, 33
   32  U.S.C. s. 1344, and which may be impacted by the Department of
   33  Transportation its plan of construction for transportation
   34  projects in the next 3 years of the tentative work program. The
   35  Department of Transportation or a transportation authority
   36  established pursuant to chapter 348 or chapter 349 may also
   37  include in its environmental impact inventory the habitat
   38  impacts and the proposed amount of mitigation needed for of any
   39  future transportation project. The Department of Transportation
   40  and each transportation authority established pursuant to
   41  chapter 348 or chapter 349 may fund any mitigation activities
   42  for future projects using current year funds.
   43         (b) The environmental impact inventory must shall include a
   44  description of these habitat impacts, including their location,
   45  acreage, and type; the proposed amount of mitigation needed
   46  based on the functional loss as determined through the Uniform
   47  Mitigation Assessment Method (UMAM) adopted in Chapter 62-345,
   48  F.A.C.; identification of the proposed mitigation option; state
   49  water quality classification of impacted wetlands and other
   50  surface waters; any other state or regional designations for
   51  these habitats; and a list of threatened species, endangered
   52  species, and species of special concern affected by the proposed
   53  project.
   54         (c) Before projects are identified for inclusion in a water
   55  management district mitigation plan as described in subsection
   56  (4), the Department of Transportation must consider using
   57  credits from a permitted mitigation bank. The Department of
   58  Transportation must consider availability of suitable and
   59  sufficient mitigation bank credits within the transportation
   60  project’s area, ability to satisfy commitments to regulatory and
   61  resource agencies, availability of suitable and sufficient
   62  mitigation purchased or developed through this section, ability
   63  to complete existing water management district or Department of
   64  Environmental Protection suitable mitigation sites initiated
   65  with Department of Transportation mitigation funds, and ability
   66  to satisfy state and federal requirements including long-term
   67  maintenance and liability.
   68         (3)(a) To implement the mitigation option fund development
   69  and implementation of the mitigation plan for the projected
   70  impacts identified in the environmental impact inventory
   71  described in subsection (2), the Department of Transportation
   72  may purchase credits for current and future use directly from a
   73  mitigation bank; purchase mitigation services through the water
   74  management districts or the Department of Environmental
   75  Protection; conduct its own mitigation; or use other mitigation
   76  options that meet state and federal requirements. shall identify
   77  funds quarterly in an escrow account within the State
   78  Transportation Trust Fund for the environmental mitigation phase
   79  of projects budgeted by Funding for the identified mitigation
   80  option as described in the environmental impact inventory shall
   81  be included in the Department of Transportation’s work program
   82  developed pursuant to s. 339.135. for the current fiscal year.
   83  The escrow account shall be maintained by the Department of
   84  Transportation for the benefit of the water management
   85  districts. Any interest earnings from the escrow account shall
   86  remain with the Department of Transportation. The amount
   87  programmed each year by the Department of Transportation and
   88  participating transportation authorities established pursuant to
   89  chapter 348 or chapter 349 shall correspond to an estimated cost
   90  per credit of $150,000 multiplied by the projected number of
   91  credits identified in the environmental impact inventory
   92  described in subsection (2). This estimated cost per credit will
   93  be adjusted every two years by the Department of Transportation
   94  based on the average cost per UMAM credit paid through this
   95  section.
   96         (b) Each transportation authority established pursuant to
   97  chapter 348 or chapter 349 that chooses to participate in this
   98  program shall create an escrow account within its financial
   99  structure and deposit funds in the account to pay for the
  100  environmental mitigation phase of projects budgeted for the
  101  current fiscal year. The escrow account shall be maintained by
  102  the authority for the benefit of the water management districts.
  103  Any interest earnings from the escrow account shall remain with
  104  the authority.
  105         (c) For mitigation implemented by the water management
  106  district or the Department of Environmental Protection, as
  107  appropriate, the amount paid each year shall be based on
  108  mitigation services provided by the water management districts
  109  or Department of Environmental Protection pursuant to an
  110  approved water management district plan, as described in
  111  subsection (4). Except for current mitigation projects in the
  112  monitoring and maintenance phase and except as allowed by
  113  paragraph (d), The water management districts or the Department
  114  of Environmental Protection, as appropriate, may request payment
  115  a transfer of funds from an escrow account no sooner than 30
  116  days before the date the funds are needed to pay for activities
  117  associated with development or implementation of the permitted
  118  mitigation meeting the requirements pursuant to this part, 33
  119  U.S.C. s. 1344, and 33 C.F.R. s. 332, in the approved mitigation
  120  plan described in subsection (4) for the current fiscal year.,
  121  including, but not limited to, design, engineering, production,
  122  and staff support. Actual conceptual plan preparation costs
  123  incurred before plan approval may be submitted to the Department
  124  of Transportation or the appropriate transportation authority
  125  each year with the plan. The conceptual plan preparation costs
  126  of each water management district will be paid from mitigation
  127  funds associated with the environmental impact inventory for the
  128  current year. The amount transferred to the escrow accounts each
  129  year by the Department of Transportation and participating
  130  transportation authorities established pursuant to chapter 348
  131  or chapter 349 shall correspond to a cost per acre of $75,000
  132  multiplied by the projected acres of impact identified in the
  133  environmental impact inventory described in subsection (2).
  134  However, the $75,000 cost per acre does not constitute an
  135  admission against interest by the state or its subdivisions and
  136  is not admissible as evidence of full compensation for any
  137  property acquired by eminent domain or through inverse
  138  condemnation. Each July 1, the cost per acre shall be adjusted
  139  by the percentage change in the average of the Consumer Price
  140  Index issued by the United States Department of Labor for the
  141  most recent 12-month period ending September 30, compared to the
  142  base year average, which is the average for the 12-month period
  143  ending September 30, 1996. Each quarter, the projected amount of
  144  mitigation acreage of impact shall be reconciled with the actual
  145  amount of mitigation needed for acreage of impact of projects as
  146  permitted, including permit modifications, pursuant to this part
  147  and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344. The
  148  subject year’s programming transfer of funds shall be adjusted
  149  accordingly to reflect the mitigation acreage of impacts as
  150  permitted. The Department of Transportation and participating
  151  transportation authorities established pursuant to chapter 348
  152  or chapter 349 are authorized to transfer such funds from the
  153  escrow accounts to the water management districts to carry out
  154  the mitigation programs. Environmental mitigation funds that are
  155  identified for or maintained in an escrow account for the
  156  benefit of a water management district may be released if the
  157  associated transportation project is excluded in whole or part
  158  from the mitigation plan. For a mitigation project that is in
  159  the maintenance and monitoring phase, the water management
  160  district may request and receive a one-time payment based on the
  161  project’s expected future maintenance and monitoring costs. If
  162  the water management district excludes a project from an
  163  approved water management district mitigation plan, cannot
  164  timely permit a mitigation site to offset the impacts of a
  165  Department of Transportation project identified in the
  166  environmental impact inventory, or if the proposed mitigation
  167  does not meet state and federal requirements, the Department of
  168  Transportation may use the associated funds for the purchase of
  169  mitigation bank credits or any other mitigation option that
  170  satisfies state and federal requirements. Upon final
  171  disbursement of the final maintenance and monitoring payment for
  172  mitigation of a transportation project as permitted, the
  173  obligation of the Department of Transportation or the
  174  participating transportation authority is satisfied and the
  175  water management district or the Department of Environmental
  176  Protection, as appropriate, will have continuing responsibility
  177  for the mitigation project. , the escrow account for the project
  178  established by the Department of Transportation or the
  179  participating transportation authority may be closed. Any
  180  interest earned on these disbursed funds shall remain with the
  181  water management district and must be used as authorized under
  182  this section.
  183         (d) Beginning with the March 2014 water management district
  184  mitigation plans, in the 2005-2006 fiscal year, each water
  185  management district or the Department of Environmental
  186  Protection, as appropriate, shall invoice the Department of
  187  Transportation for mitigation services to offset only the
  188  impacts of a Department of Transportation project identified in
  189  the environmental impact inventory, including planning, design,
  190  construction, maintenance and monitoring, and other costs
  191  necessary to meet requirements pursuant to this section, 33
  192  U.S.C. s. 1344, and 33 C.F.R. s. 332. be paid a lump-sum amount
  193  of $75,000 per acre, adjusted as provided under paragraph (c),
  194  for federally funded transportation projects that are included
  195  on the environmental impact inventory and that have an approved
  196  mitigation plan. Beginning in the 2009-2010 fiscal year, each
  197  water management district shall be paid a lump-sum amount of
  198  $75,000 per acre, adjusted as provided under paragraph (c), for
  199  federally funded and nonfederally funded transportation projects
  200  that have an approved mitigation plan. All mitigation costs,
  201  including, but not limited to, the costs of preparing conceptual
  202  plans and the costs of design, construction, staff support,
  203  future maintenance, and monitoring the mitigated acres shall be
  204  funded through these lump-sum amounts. When the water management
  205  district identifies the use of mitigation bank credits to offset
  206  a Department of Transportation impact, the water management
  207  district shall exclude that purchase from the mitigation plan,
  208  and the Department of Transportation must purchase the bank
  209  credits.
  210         (e) For mitigation activities occurring on existing water
  211  management district or Department of Environmental Protection
  212  mitigation sites initiated with Department of Transportation
  213  mitigation funds prior to July 1, 2013, the water management
  214  district or Department of Environmental Protection shall invoice
  215  the Department of Transportation or a participating
  216  transportation authority at a cost per acre of $75,000
  217  multiplied by the projected acres of impact as identified in the
  218  environmental impact inventory. The cost per acre shall be
  219  adjusted by the percentage change in the average of the Consumer
  220  Price Index issued by the United States Department of Labor for
  221  the most recent 12-month period ending September 30, compared to
  222  the base year average, which is the average for the 12-month
  223  period ending September 30, 1996. When implementing the
  224  mitigation activities necessary to offset the permitted impacts
  225  as provided in the approved mitigation plan, the water
  226  management district shall maintain records of the costs incurred
  227  in implementing the mitigation. The records must include, but
  228  are not limited to, costs for planning, land acquisition,
  229  design, construction, staff support, long-term maintenance and
  230  monitoring of the mitigation site, and other costs necessary to
  231  meet the requirements of 33 U.S.C. s. 1344 and 33 C.F.R. s. 332.
  232         (f) For purposes of preparing and implementing the
  233  mitigation plans to be adopted by the water management districts
  234  by March 1, 2013, for impacts based on the July 1, 2012,
  235  environmental impact inventory, the funds identified in the
  236  Department of Transportation’s work program or participating
  237  transportation authorities’ escrow accounts shall correspond to
  238  a cost per acre of $75,000 multiplied by the project acres of
  239  impact as identified in the environmental impact inventory. The
  240  cost per acre shall be adjusted by the percentage change in the
  241  average of the Consumer Price Index issued by the United States
  242  Department of Labor for the most recent 12-month period ending
  243  September 30, compared to the base year average, which is the
  244  average for the 12-month period ending September 30, 1996.
  245  Payment as provided under this paragraph is limited to those
  246  mitigation activities which are identified in the first year of
  247  the 2013 mitigation plan and for which the transportation
  248  project is permitted and is in the Department of
  249  Transportation’s adopted work program, or equivalent for a
  250  transportation authority. When implementing the mitigation
  251  activities necessary to offset the permitted impacts as provided
  252  in the approved mitigation plan, the water management district
  253  shall maintain records of the costs incurred in implementing the
  254  mitigation. The records must include, but are not limited to,
  255  costs for planning, land acquisition, design, construction,
  256  staff support, long-term maintenance and monitoring of the
  257  mitigation site, and other costs necessary to meet the
  258  requirements of 33 U.S.C. s. 1344 and 33 C.F.R. s. 332. To the
  259  extent monies paid to a water management district by the
  260  Department of Transportation or a participating transportation
  261  authority exceed the amount expended by the water management
  262  districts in implementing the mitigation to offset the permitted
  263  impacts, these funds must be refunded to the Department of
  264  Transportation or participating transportation authority. This
  265  paragraph expires June 30, 2014.
  266         (4) Before March 1 of each year, each water management
  267  district shall develop a mitigation plan to offset only the
  268  impacts of transportation projects in the environmental impact
  269  inventory for which a water management district is implementing
  270  mitigation that meets the requirements of this section, 33
  271  U.S.C. s. 1344, and 33 C.F.R. s. 332. The water management-
  272  district mitigation plan must be developed, in consultation with
  273  the Department of Environmental Protection, the United States
  274  Army Corps of Engineers, the Department of Transportation,
  275  participating transportation authorities established pursuant to
  276  chapter 348 or chapter 349, and other appropriate federal,
  277  state, and local governments, and other interested parties,
  278  including entities operating mitigation banks, shall develop a
  279  plan for the primary purpose of complying with the mitigation
  280  requirements adopted pursuant to this part and 33 U.S.C. s.
  281  1344. In developing such plans, the water management districts
  282  shall use sound ecosystem management practices to address
  283  significant water resource needs and consider shall focus on
  284  activities of the Department of Environmental Protection and the
  285  water management districts, such as surface water improvement
  286  and management (SWIM) projects and lands identified for
  287  potential acquisition for preservation, restoration, or
  288  enhancement, and the control of invasive and exotic plants in
  289  wetlands and other surface waters, to the extent that the
  290  activities comply with the mitigation requirements adopted under
  291  this part, and 33 U.S.C. s. 1344, and 33 C.F.R. s. 332. The
  292  water management district mitigation plan shall identify each
  293  site where the water management district will mitigate for a
  294  transportation project. For each mitigation site, the water
  295  management district shall provide the scope of the mitigation
  296  services, provide the Functional Gain as determined through the
  297  UMAM per Chapter 62-345, F.A.C., describe how the mitigation
  298  offsets the impacts of each transportation project as permitted,
  299  and provide a schedule for the mitigation services. In
  300  determining the activities to be included in the plans, the
  301  districts shall consider the purchase of credits from public or
  302  private mitigation banks permitted under s. 373.4136 and
  303  associated federal authorization and shall include the purchase
  304  as a part of the mitigation plan when the purchase would offset
  305  the impact of the transportation project, provide equal benefits
  306  to the water resources than other mitigation options being
  307  considered, and provide the most cost-effective mitigation
  308  option. The water management districts shall maintain records of
  309  costs incurred and payments received for providing these
  310  services. Records must include, but are not limited to,
  311  planning, land acquisition, design, construction, staff support,
  312  long-term maintenance and monitoring of the mitigation site, and
  313  other costs necessary to meet the requirements of 33 U.S.C. s.
  314  1344 and 33 C.F.R. s. 332. To the extent monies paid to a water
  315  management district by the Department of Transportation or a
  316  participating transportation authority exceed the amount
  317  expended by the water management districts in providing the
  318  mitigation services to offset the permitted transportation
  319  project impacts, these monies shall be refunded to the
  320  Department of Transportation or participating transportation
  321  authority. The mitigation plan shall be submitted to the water
  322  management district governing board, or its designee, for review
  323  and approval. At least 14 days before approval by the governing
  324  board, the water management district shall provide a copy of the
  325  draft mitigation plan to the Department of Environmental
  326  Protection and any person who has requested a copy. Subsequent
  327  to governing board approval, the mitigation plan must be
  328  submitted to the Department of Environmental Protection for
  329  approval. The plan may not be implemented until it is submitted
  330  to and approved, in part or in its entirety, by the Department
  331  of Environmental Protection.
  332         (a) For each transportation project with a funding request
  333  for the next fiscal year, the mitigation plan must include a
  334  brief explanation of why a mitigation bank was or was not chosen
  335  as a mitigation option, including an estimation of identifiable
  336  costs of the mitigation bank and nonbank options and other
  337  factors such as time saved, liability for success of the
  338  mitigation, and long-term maintenance.
  339         (a)(b) Specific projects may be excluded from the
  340  mitigation plan, in whole or in part, and are not subject to
  341  this section upon the election of the Department of
  342  Transportation, a transportation authority if applicable, or the
  343  appropriate water management district. Neither the Department of
  344  Transportation nor a participating transportation authority
  345  shall exclude a transportation project from the mitigation plan
  346  when mitigation is scheduled for implementation by the water
  347  management district in the current fiscal year, except when the
  348  transportation project is removed from the Department of
  349  Transportation’s work program or transportation authority
  350  funding plan, the mitigation cannot be timely permitted to
  351  offset the impacts of a Department of Transportation project
  352  identified in the environmental impact inventory or the proposed
  353  mitigation does not meet state and federal requirements. If a
  354  project is removed from the work program or the mitigation plan,
  355  costs expended by the water management district prior to removal
  356  are eligible for reimbursement by the Department of
  357  Transportation or participating transportation authority.
  358         (b)(c) When determining which projects to include in or
  359  exclude from the mitigation plan, the Department of
  360  Transportation shall investigate using credits from a permitted
  361  mitigation bank before those projects are submitted for
  362  inclusion in a water management district mitigation the plan.
  363  The investigation shall consider the cost-effectiveness of
  364  mitigation bank credits, including, but not limited to, factors
  365  such as time saved, transfer of liability for success of the
  366  mitigation, and long-term maintenance. The Department of
  367  Transportation shall exclude a project from the mitigation plan
  368  when the investigation undertaken pursuant to this paragraph
  369  results in the conclusion that the use of credits from a
  370  permitted mitigation bank promotes efficiency, timeliness in
  371  project delivery, cost-effectiveness, and transfer of liability
  372  for success and long-term maintenance.
  373         (5) The water management district shall ensure that
  374  mitigation requirements pursuant to 33 U.S.C. s. 1344 and 33
  375  C.F.R. s. 332 are met for the impacts identified in the
  376  environmental impact inventory for which the water management
  377  district will implement mitigation described in subsection (2),
  378  by implementation of the approved mitigation plan described in
  379  subsection (4) to the extent funding is provided by the
  380  Department of Transportation, or a transportation authority
  381  established pursuant to chapter 348 or chapter 349, if
  382  applicable. In developing and implementing the mitigation plan,
  383  the water management district shall comply with federal
  384  permitting requirements pursuant to 33 U.S.C. s. 1344 and 33
  385  C.F.R. s. 332. During the federal permitting process, the water
  386  management district may deviate from the approved mitigation
  387  plan in order to comply with federal permitting requirements
  388  upon notice and coordination with the Department of
  389  Transportation or participating transportation authority.
  390         (6) The water management district mitigation plans shall be
  391  updated annually to reflect the most current Department of
  392  Transportation work program and project list of a transportation
  393  authority established pursuant to chapter 348 or chapter 349, if
  394  applicable, and may be amended throughout the year to anticipate
  395  schedule changes or additional projects which may arise. Before
  396  an amendment of the mitigation plan to include new projects, the
  397  Department of Transportation shall consider mitigation banks and
  398  other available mitigation options that meet state and federal
  399  requirements. Each update and amendment of the mitigation plan
  400  shall be submitted to the governing board of the water
  401  management district or its designee for approval. However, such
  402  approval shall not be applicable to a deviation as described in
  403  subsection (5).
  404         (7) Upon approval by the governing board of the water
  405  management district and the Department of Environmental
  406  Protection or its designee, the mitigation plan shall be deemed
  407  to satisfy the mitigation requirements under this part for
  408  impacts specifically identified in the environmental impact
  409  inventory described in subsection (2) and any other mitigation
  410  requirements imposed by local, regional, and state agencies for
  411  these same impacts. The approval of the governing board of the
  412  water management district or its designee and the Department of
  413  Environmental Protection shall authorize the activities proposed
  414  in the mitigation plan, and no other state, regional, or local
  415  permit or approval shall be necessary.
  416         (8) This section shall not be construed to eliminate the
  417  need for the Department of Transportation or a transportation
  418  authority established pursuant to chapter 348 or chapter 349 to
  419  comply with the requirement to implement practicable design
  420  modifications, including realignment of transportation projects,
  421  to reduce or eliminate the impacts of its transportation
  422  projects on wetlands and other surface waters as required by
  423  rules adopted pursuant to this part, or to diminish the
  424  authority under this part to regulate other impacts, including
  425  water quantity or water quality impacts, or impacts regulated
  426  under this part that are not identified in the environmental
  427  impact inventory described in subsection (2).
  428         (9) The process for environmental mitigation for the impact
  429  of transportation projects under this section shall be available
  430  to an expressway, bridge, or transportation authority
  431  established under chapter 348 or chapter 349. Use of this
  432  process may be initiated by an authority depositing the
  433  requisite funds into an escrow account set up by the authority
  434  and filing an environmental impact inventory with the
  435  appropriate water management district. An authority that
  436  initiates the environmental mitigation process established by
  437  this section shall comply with subsection (6) by timely
  438  providing the appropriate water management district with the
  439  requisite work program information. A water management district
  440  may draw down funds from the escrow account as provided in this
  441  section.