Florida Senate - 2013                                    SB 1104
       
       
       
       By Senator Brandes
       
       
       
       
       22-01325-13                                           20131104__
    1                        A bill to be entitled                      
    2         An act relating to the environment; amending s.
    3         335.06, F.S.; revising the responsibilities of the
    4         Department of Transportation, a county, or a
    5         municipality to improve or maintain a road that
    6         provides access to property within the state park
    7         system; amending s. 373.4137, F.S.; providing
    8         legislative intent that mitigation be implemented in a
    9         manner that promotes efficiency, timeliness, and cost
   10         effectiveness in project delivery; revising the
   11         criteria of the environmental impact inventory;
   12         revising the criteria for mitigation of projected
   13         impacts identified in the environmental impact
   14         inventory; requiring the Department of Transportation
   15         to include funding for environmental mitigation for
   16         its projects in its work program; revising the process
   17         and criteria for the payment by the department or
   18         participating transportation authorities of mitigation
   19         implemented by water management districts or the
   20         Department of Environmental Projection; revising the
   21         requirements for the payment to a water management
   22         district or the Department of Environmental Protection
   23         of the costs of mitigation planning and implementation
   24         of the mitigation required by a permit; revising the
   25         payment criteria for preparing and implementing
   26         mitigation plans adopted by water management districts
   27         for transportation impacts based on the environmental
   28         impact inventory; adding federal requirements for the
   29         development of a mitigation plan; providing for
   30         transportation projects in the environmental
   31         mitigation plan for which mitigation has not been
   32         specified; revising a water management district’s
   33         responsibilities relating to a mitigation plan;
   34         amending s. 373.618, F.S.; revising the outdoor
   35         advertisement exemption criteria for a public
   36         information system; providing an effective date.
   37  
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Section 335.06, Florida Statutes, is amended to
   41  read:
   42         335.06 Access roads to the state park system.—A Any road
   43  that which provides access to property within the state park
   44  system must shall be maintained by the department if the road is
   45  a part of the State Highway System and may be improved and
   46  maintained by the department if the road is part of a county
   47  road system or city street system. If the department does not
   48  maintain a county or city road that is a part of the county road
   49  system or the city street system and that provides access to the
   50  state park system, the road must or shall be maintained by the
   51  appropriate county or municipality if the road is a part of the
   52  county road system or the city street system.
   53         Section 2. Section 373.4137, Florida Statutes, is amended
   54  to read:
   55         373.4137 Mitigation requirements for specified
   56  transportation projects.—
   57         (1) The Legislature finds that environmental mitigation for
   58  the impact of transportation projects proposed by the Department
   59  of Transportation or a transportation authority established
   60  pursuant to chapter 348 or chapter 349 can be more effectively
   61  achieved by regional, long-range mitigation planning rather than
   62  on a project-by-project basis. It is the intent of the
   63  Legislature that mitigation to offset the adverse effects of
   64  these transportation projects be funded by the Department of
   65  Transportation and be carried out by the use of mitigation banks
   66  and any other mitigation options that satisfy state and federal
   67  requirements in an efficient, timely, and cost-effective manner.
   68         (2) Environmental impact inventories for transportation
   69  projects proposed by the Department of Transportation or a
   70  transportation authority established pursuant to chapter 348 or
   71  chapter 349 shall be developed as follows:
   72         (a) By July 1 of each year, the Department of
   73  Transportation, or a transportation authority established
   74  pursuant to chapter 348 or chapter 349 which chooses to
   75  participate in the program, shall submit to the water management
   76  districts a list of its projects in the adopted work program and
   77  an environmental impact inventory of habitat impacts and the
   78  proposed amount of mitigation needed to offset impacts as
   79  described in paragraph (b). The environmental impact inventory
   80  must be based on habitats addressed in the rules adopted
   81  pursuant to this part, and s. 404 of the Clean Water Act, 33
   82  U.S.C. s. 1344, and which may be impacted by the Department of
   83  Transportation its plan of construction for transportation
   84  projects in the next 3 years of the tentative work program. The
   85  Department of Transportation or a transportation authority
   86  established pursuant to chapter 348 or chapter 349 may also
   87  include in its environmental impact inventory the habitat
   88  impacts and the proposed amount of mitigation needed for of any
   89  future transportation project. The Department of Transportation
   90  and each transportation authority established pursuant to
   91  chapter 348 or chapter 349 may fund any mitigation activities
   92  for future projects using current year funds.
   93         (b) The environmental impact inventory must shall include a
   94  description of these habitat impacts, including their location,
   95  acreage, and type; the proposed amount of mitigation needed
   96  based on the functional loss as determined through the Uniform
   97  Mitigation Assessment Method adopted in rule 62-345, F.A.C.,
   98  which will identify the potential number of mitigation credits
   99  needed for the impacted site, and the identification of the
  100  proposed mitigation option, such as permitted mitigation banks,
  101  mitigation implemented by the water management district, or
  102  other approved options that satisfy state and federal
  103  requirements; state water quality classification of impacted
  104  wetlands and other surface waters; any other state or regional
  105  designations for these habitats; and a list of threatened
  106  species, endangered species, and species of special concern
  107  affected by the proposed project.
  108         (3)(a) To mitigate fund development and implementation of
  109  the mitigation plan for the projected impacts identified in the
  110  environmental impact inventory described in subsection (2), the
  111  Department of Transportation may purchase credits for current
  112  and future use directly from a mitigation bank as described in
  113  subsection (4); mitigate through the water management districts;
  114  mitigate through the Department of Environmental Protection for
  115  mitigation on state lands; or conduct its own mitigation. In
  116  evaluating its mitigation options, the Department of
  117  Transportation shall consider efficiency, timeliness, and cost
  118  effectiveness. The proposed mitigation option shall be
  119  identified in the inventory. Funding of shall identify funds
  120  quarterly in an escrow account within the State Transportation
  121  Trust Fund for the environmental mitigation phase of for the
  122  Department of Transportation projects shall be included in
  123  budgeted by the department’s work program developed pursuant to
  124  s. 339.135 Department of Transportation for the current fiscal
  125  year. The escrow account shall be maintained by the Department
  126  of Transportation for the benefit of the water management
  127  districts. Any interest earnings from the escrow account shall
  128  remain with the Department of Transportation.
  129         (b) Each transportation authority established pursuant to
  130  chapter 348 or chapter 349 that chooses to participate in this
  131  program shall create an escrow account within its financial
  132  structure and deposit funds in the account to pay for the
  133  environmental mitigation phase of projects budgeted for the
  134  current fiscal year. The escrow account shall be maintained by
  135  the authority for the benefit of the water management districts.
  136  Any interest earnings from the escrow account must shall remain
  137  with the authority.
  138         (c) The Department of Transportation or the participating
  139  transportation authorities established pursuant to chapter 348
  140  or chapter 349 shall pay annually an amount established in
  141  paragraph (d) for mitigation implemented by the water management
  142  district or the Department of Environmental Protection, as
  143  appropriate. Except for current mitigation projects in the
  144  monitoring and maintenance phase and except as allowed by
  145  paragraph (d), The water management districts, or the Department
  146  of Environmental Protection for approved mitigation on its land,
  147  may request payment a transfer of funds from an escrow account
  148  no sooner than 30 days before the date the funds are needed to
  149  pay for activities associated with development or implementation
  150  of mitigation meeting the requirements pursuant to this part, 33
  151  U.S.C. s. 1344, and 33 C.F.R. s. 332, in the approved mitigation
  152  plan described in subsection (4) for the current fiscal year,
  153  including, but not limited to, design, engineering, production,
  154  and staff support. Actual conceptual plan preparation costs
  155  incurred before plan approval may be submitted to the Department
  156  of Transportation or the appropriate transportation authority
  157  each year with the plan. The conceptual plan preparation costs
  158  of each water management district will be paid from mitigation
  159  funds associated with the environmental impact inventory for the
  160  current year. The amount transferred to the escrow accounts each
  161  year by the Department of Transportation and participating
  162  transportation authorities established pursuant to chapter 348
  163  or chapter 349 shall correspond to a cost per acre of $75,000
  164  multiplied by the projected acres of impact identified in the
  165  environmental impact inventory described in subsection (2).
  166  However, the $75,000 cost per acre does not constitute an
  167  admission against interest by the state or its subdivisions and
  168  is not admissible as evidence of full compensation for any
  169  property acquired by eminent domain or through inverse
  170  condemnation. Each July 1, the cost per acre shall be adjusted
  171  by the percentage change in the average of the Consumer Price
  172  Index issued by the United States Department of Labor for the
  173  most recent 12-month period ending September 30, compared to the
  174  base year average, which is the average for the 12-month period
  175  ending September 30, 1996. Each quarter, the projected amount of
  176  mitigation shown on the water management district mitigation
  177  plan must acreage of impact shall be reconciled with the actual
  178  amount of mitigation needed for acreage of impact of projects as
  179  permitted, including permit modifications, pursuant to this part
  180  and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344. The
  181  subject year’s transfer of funds shall be adjusted accordingly
  182  to reflect the mitigation acreage of impacts as permitted. The
  183  Department of Transportation and participating transportation
  184  authorities established pursuant to chapter 348 or chapter 349
  185  are authorized to transfer such funds from the escrow accounts
  186  to the water management districts or the Department of
  187  Environmental Protection, as appropriate, to carry out the
  188  mitigation for the subject year programs. Environmental
  189  mitigation funds that are identified for mitigation implemented
  190  by a or maintained in an escrow account for the benefit of a
  191  water management district or the Department of Environmental
  192  Protection may be reassigned released if the associated
  193  transportation project is excluded in whole or in part from the
  194  water management district mitigation plan, or if the mitigation
  195  will no longer be implemented by the Department of Environmental
  196  Protection on state lands. For a mitigation project that is in
  197  the maintenance and monitoring phase, the water management
  198  district may request and receive a one-time payment based on the
  199  project’s expected future maintenance and monitoring costs. Upon
  200  final disbursement of the final maintenance and monitoring
  201  payment for mitigation of a transportation project as permitted,
  202  the obligation of the Department of Transportation or the
  203  participating transportation authority is satisfied, and the
  204  water management district or the Department of Environmental
  205  Protection, as appropriate, will have continuing responsibility
  206  for the mitigation project, the escrow account for the project
  207  established by the Department of Transportation or the
  208  participating transportation authority may be closed. Any
  209  interest earned on these disbursed funds shall remain with the
  210  water management district and must be used as authorized under
  211  this section.
  212         (d) Beginning with the environmental impact inventory to be
  213  submitted July 1, 2013, and the related approved mitigation
  214  plan, the in the 2005-2006 fiscal year, each water management
  215  district or the Department of Environmental Protection, as
  216  appropriate, shall be paid for the costs associated to plan and
  217  implement the mitigation required by a permit which are based on
  218  the cost of a mitigation credit that is established by this
  219  section a lump-sum amount of $75,000 per acre, adjusted as
  220  provided under paragraph (c), for federally funded
  221  transportation projects that are included on the environmental
  222  impact inventory and that have an approved mitigation plan.
  223  Beginning in the 2009-2010 fiscal year, each water management
  224  district shall be paid a lump-sum amount of $75,000 per acre,
  225  adjusted as provided under paragraph (c), for federally funded
  226  and nonfederally funded transportation projects that have an
  227  approved mitigation plan. Each water management district or the
  228  Department of Environmental Protection, as appropriate, may be
  229  paid a lump-sum amount, based on the cost per mitigation credit,
  230  for a federally funded or nonfederally funded transportation
  231  project that is in the Department of Transportation work
  232  program; is permitted; and for which mitigation meeting the
  233  requirements pursuant to this part, 33 U.S.C. s. 1344, and 33
  234  C.F.R. s. 332, will be implemented within the current fiscal
  235  year. For purposes of this section, the cost of a All mitigation
  236  credit for each mitigation project as established by the water
  237  management district or the Department of Environmental
  238  Protection, as appropriate, may include costs, including, but is
  239  not limited to, the costs of preparing conceptual plans and the
  240  costs of land acquisition, design, construction, staff support,
  241  future maintenance, and monitoring of the mitigation site, and
  242  other costs necessary to meet requirements pursuant to 33 U.S.C.
  243  s. 1344 and 33 C.F.R. s. 332. If the water management district
  244  includes the purchase of mitigation bank credits as part of the
  245  mitigation plan, the cost must be based on the cost per credit
  246  as established by the mitigation bank mitigated acres shall be
  247  funded through these lump-sum amounts.
  248         (e) For purposes of preparing and implementing the
  249  mitigation plans to be adopted by the water management districts
  250  before March 1, 2013, for transportation impacts based on the
  251  environmental impact inventory of July 1, 2012, the funds
  252  identified in the Department of Transportation’s work program or
  253  participating transportation authorities’ escrow accounts must
  254  correspond to a cost per acre of $75,000 multiplied by the
  255  projected acres of impact as identified in the environmental
  256  impact inventory. The cost per acre shall be adjusted by the
  257  percentage change in the average of the Consumer Price Index
  258  issued by the United States Department of Labor for the most
  259  recent 12-month period ending September 30, compared to the base
  260  year average, which is the average for the 12-month period
  261  ending September 30, 1996. Payment as provided under this
  262  paragraph is limited to those mitigation activities that are
  263  identified in the first year of the 2013 mitigation plan and for
  264  which the transportation project is permitted and is in the
  265  Department of Transportation’s adopted work program, or the
  266  equivalent for a transportation authority. When implementing the
  267  mitigation activities necessary to offset the permitted
  268  transportation impacts as provided in the approved mitigation
  269  plan, the water management district shall maintain records of
  270  the costs incurred in implementing the mitigation. The costs
  271  must include, but are not limited to, conceptual planning, land
  272  acquisition, design, construction, staff support, long-term
  273  maintenance and monitoring of the mitigation site, and other
  274  costs necessary to meet the requirements of 33 U.S.C. s. 1344
  275  and 33 C.F.R. s. 332. To the extent moneys paid to a water
  276  management district by the Department of Transportation or a
  277  participating transportation authority exceed the amount spent
  278  by the water management district in implementing the mitigation
  279  to offset the permitted transportation impacts, the funds shall
  280  be refunded to the Department of Transportation or the
  281  participating transportation authority. This paragraph expires
  282  June 30, 2014.
  283         (4) Before March 1 of each year, each water management
  284  district, in consultation with the Department of Environmental
  285  Protection, the United States Army Corps of Engineers, the
  286  Department of Transportation, participating transportation
  287  authorities established pursuant to chapter 348 or chapter 349,
  288  and other appropriate federal, state, and local governments, and
  289  other interested parties, including entities operating
  290  mitigation banks, shall develop a plan for the primary purpose
  291  of complying with the mitigation requirements adopted pursuant
  292  to this part, and 33 U.S.C. s. 1344, and 33 C.F.R. s. 332. In
  293  developing such plans, the districts shall use sound ecosystem
  294  management practices to address significant water resource needs
  295  and shall consider focus on activities of the Department of
  296  Environmental Protection and the water management districts,
  297  such as surface water improvement and management (SWIM) projects
  298  and lands identified for potential acquisition for preservation,
  299  restoration, or enhancement, and the control of invasive and
  300  exotic plants in wetlands and other surface waters, to the
  301  extent that the activities comply with the mitigation
  302  requirements adopted under this part, and 33 U.S.C. s. 1344, and
  303  33 C.F.R. s. 332. For transportation projects in the
  304  environmental impact inventory for which mitigation has not been
  305  specified, the mitigation plan must identify the site where the
  306  water management district will mitigate for the transportation
  307  project, the scope of the mitigation activities at each
  308  mitigation site, and the functional gain at each mitigation site
  309  as determined through the uniform mitigation assessment method
  310  pursuant to rule 62-345, F.A.C.; must describe how the
  311  mitigation offsets the impacts of each transportation project as
  312  permitted; must set a schedule for the mitigation activities;
  313  and must specify the cost per mitigation credit as established
  314  in (3)(d). The water management districts shall maintain records
  315  of payments received and costs incurred for implementing
  316  mitigation activities to offset impacts of permitted
  317  transportation projects. To the extent moneys paid to a water
  318  management district by the Department of Transportation or a
  319  participating transportation authority exceed the amount spent
  320  by the water management districts in implementing the mitigation
  321  to offset the permitted transportation impacts, the funds shall
  322  be refunded to the Department of Transportation or the
  323  participating transportation authority In determining the
  324  activities to be included in the plans, the districts shall
  325  consider the purchase of credits from public or private
  326  mitigation banks permitted under s. 373.4136 and associated
  327  federal authorization and shall include the purchase as a part
  328  of the mitigation plan when the purchase would offset the impact
  329  of the transportation project, provide equal benefits to the
  330  water resources than other mitigation options being considered,
  331  and provide the most cost-effective mitigation option. The
  332  mitigation plan shall be submitted to the water management
  333  district governing board, or its designee, for review and
  334  approval. At least 14 days before approval by the governing
  335  board, the water management district shall provide a copy of the
  336  draft mitigation plan to the Department of Environmental
  337  Protection and any person who has requested a copy. After the
  338  governing board approves the mitigation plan, the plan must be
  339  submitted to the department for approval. The plan may not be
  340  implemented until it is submitted to and approved, in part or in
  341  its entirety, by the department Department of Environmental
  342  Protection.
  343         (a) For each transportation project with a funding request
  344  for the next fiscal year, the mitigation plan must include a
  345  brief explanation of why a mitigation bank was or was not chosen
  346  as a mitigation option, including an estimation of identifiable
  347  costs of the mitigation bank and nonbank options and other
  348  factors such as time saved, liability for success of the
  349  mitigation, and long-term maintenance.
  350         (a)(b) Specific projects may be excluded from the
  351  mitigation plan, in whole or in part, and are not subject to
  352  this section upon the election of the Department of
  353  Transportation, a transportation authority if applicable, or the
  354  appropriate water management district. The Department of
  355  Transportation or a participating transportation authority may
  356  not exclude a transportation project from the mitigation plan if
  357  mitigation is scheduled for implementation by the water
  358  management district in the current fiscal year, except if the
  359  transportation project is removed from the Department of
  360  Transportation work program or transportation authority funding
  361  plan. If a project is removed, costs expended by the water
  362  management districts before removal are eligible for
  363  reimbursement by the Department of Transportation or the
  364  participating transportation authority.
  365         (b)(c) When determining which projects to include in or
  366  exclude from the mitigation plan, the Department of
  367  Transportation shall investigate using credits from a permitted
  368  mitigation bank before those projects are submitted for
  369  inclusion in the plan. The investigation shall consider the cost
  370  cost-effectiveness of mitigation bank credits, including, but
  371  not limited to, factors such as timeliness time saved, transfer
  372  of liability for success of the mitigation, and long-term
  373  maintenance, and meeting the requirements of 33 C.F.R. s. 332.
  374  The Department of Transportation shall exclude a project from
  375  the mitigation plan if the investigation undertaken pursuant to
  376  this paragraph results in the conclusion that the use of credits
  377  from a permitted mitigation bank promotes efficiency, timeliness
  378  in project delivery, and cost-effectiveness.
  379         (5) The water management district shall ensure that
  380  mitigation requirements pursuant to 33 U.S.C. s. 1344 and 33
  381  C.F.R. s. 332 are met for the impacts identified in the
  382  environmental impact inventory described in subsection (2), by
  383  implementation of the approved plan described in subsection (4)
  384  to the extent funding is provided by the Department of
  385  Transportation, or a transportation authority established
  386  pursuant to chapter 348 or chapter 349, if applicable. In
  387  developing and implementing the mitigation plan, the water
  388  management district shall comply with federal permitting
  389  requirements pursuant to 33 U.S.C. s. 1344 and 33 C.F.R. s. 332.
  390  During the federal permitting process, the water management
  391  district may deviate from the approved mitigation plan in order
  392  to comply with federal permitting requirements upon notice and
  393  coordination with the Department of Transportation or the
  394  participating transportation authority.
  395         (6) The water management district mitigation plans shall be
  396  updated annually to reflect the most current Department of
  397  Transportation work program and project list of a transportation
  398  authority established pursuant to chapter 348 or chapter 349, if
  399  applicable, and may be amended throughout the year to anticipate
  400  schedule changes or additional projects which may arise. Before
  401  amending the mitigation plan to include new projects,
  402  consideration shall be given to mitigation banks and other
  403  available mitigation options. Each update and amendment of the
  404  mitigation plan shall be submitted to the governing board of the
  405  water management district or its designee for approval. However,
  406  the such approval is shall not be applicable to a deviation as
  407  described in subsection (5).
  408         (7) Upon approval by the governing board of the water
  409  management district and the Department of Environmental
  410  Protection or its designee, the mitigation plan shall be deemed
  411  to satisfy the mitigation requirements under this part for
  412  impacts specifically identified in the environmental impact
  413  inventory described in subsection (2) and any other mitigation
  414  requirements imposed by local, regional, and state agencies for
  415  these same impacts. The approval of the governing board of the
  416  water management district or its designee must shall authorize
  417  the activities proposed in the mitigation plan, and no other
  418  state, regional, or local permit or approval is shall be
  419  necessary.
  420         (8) This section may shall not be construed to eliminate
  421  the need for the Department of Transportation or a
  422  transportation authority established pursuant to chapter 348 or
  423  chapter 349 to comply with the requirement to implement
  424  practicable design modifications, including realignment of
  425  transportation projects, to reduce or eliminate the impacts of
  426  its transportation projects on wetlands and other surface waters
  427  as required by rules adopted pursuant to this part, or to
  428  diminish the authority under this part to regulate other
  429  impacts, including water quantity or water quality impacts, or
  430  impacts regulated under this part that are not identified in the
  431  environmental impact inventory described in subsection (2).
  432         (9) The process for environmental mitigation for the impact
  433  of transportation projects under this section shall be available
  434  to an expressway, bridge, or transportation authority
  435  established under chapter 348 or chapter 349. Use of this
  436  process may be initiated by an authority depositing the
  437  requisite funds into an escrow account set up by the authority
  438  and filing an environmental impact inventory with the
  439  appropriate water management district. An authority that
  440  initiates the environmental mitigation process established by
  441  this section shall comply with subsection (6) by timely
  442  providing the appropriate water management district with the
  443  requisite work program information. A water management district
  444  may draw down funds from the escrow account as provided in this
  445  section.
  446         Section 3. Section 373.618, Florida Statutes, is amended to
  447  read:
  448         373.618 Public service warnings, alerts, and
  449  announcements.—The Legislature believes it is in the public
  450  interest that each all water management district districts
  451  created pursuant to s. 373.069 own, acquire, develop, construct,
  452  operate, and manage public information systems. Public
  453  information systems may be located on property owned by the
  454  water management district, upon terms and conditions approved by
  455  the water management district, and must display messages to the
  456  general public concerning water management services, activities,
  457  events, and sponsors, as well as other public service
  458  announcements, including watering restrictions, severe weather
  459  reports, amber alerts, and other essential information needed by
  460  the public. Local government review or approval is not required
  461  for a public information system owned or hereafter acquired,
  462  developed, or constructed by the water management district on
  463  its own property. A public information system is exempt from the
  464  requirements of chapter 479; however, a public information
  465  system that is subject to the Highway Beautification Act of 1965
  466  must be approved by the Department of Transportation and the
  467  Federal Highway Administration if required by federal law and
  468  federal regulation under the agreement between the state and the
  469  United States Department of Transportation, and federal
  470  regulations enforced by the Department of Transportation under
  471  s. 479.02(1). Water management district funds may not be used to
  472  pay the cost to acquire, develop, construct, operate, or manage
  473  a public information system. Any necessary funds for a public
  474  information system shall be paid for and collected from private
  475  sponsors who may display commercial messages.
  476         Section 4. This act shall take effect July 1, 2013.