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    Florida House of Representatives - 2000             CS/HB 2365

        By the Committee on Environmental Protection and
    Representative Alexander





  1                      A bill to be entitled

  2         An act relating to wetlands mitigation;

  3         amending s. 373.4135, F.S.; requiring

  4         establishment and operation of mitigation

  5         projects under a memorandum of agreement, under

  6         certain conditions; providing requirements and

  7         exclusions; authorizing certain mitigation

  8         options for private single-family lots or

  9         homeowners; providing for notice; amending s.

10         373.4136, F.S.; revising provisions relating to

11         size and characteristics of the mitigation

12         service area; providing for use of regional

13         watersheds to guide establishment of mitigation

14         service areas; requiring satisfaction of

15         cumulative impact considerations; amending s.

16         373.414, F.S.; revising reporting requirements

17         relating to money donated as wetlands

18         mitigation; specifying conditions under which

19         proposed mitigation shall satisfy cumulative

20         impact considerations for a regulated activity;

21         requiring the Department of Environmental

22         Protection and certain water management

23         districts to adopt a single uniform wetland

24         mitigation assessment method, by rule, by a

25         specified date; directing local government use

26         of the assessment method; providing conditions

27         and procedures for use of the assessment

28         method; deleting obsolete language; directing

29         study by the Office of Program Policy Analysis

30         and Government Accountability on mitigation

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  1         cumulative impact considerations; providing an

  2         effective date.

  3

  4  Be It Enacted by the Legislature of the State of Florida:

  5

  6         Section 1.  Subsections (6) and (7) are added to

  7  section 373.4135, Florida Statutes, to read:

  8         373.4135  Mitigation banks and offsite regional

  9  mitigation.--

10         (6)  An environmental creation, preservation,

11  enhancement, or restoration project, including regional

12  offsite mitigation areas, for which money is donated or paid

13  as mitigation, that is sponsored by the department, a water

14  management district, or a local government and provides

15  mitigation for five or more applicants for permits under this

16  part, or for 35 or more acres of adverse impacts, shall be

17  established and operated under a memorandum of agreement. The

18  memorandum of agreement shall be between the governmental

19  entity proposing the mitigation project and the department or

20  water management district, as appropriate. Such memorandum of

21  agreement need not be adopted by rule. For the purposes of

22  this subsection, one creation, preservation, enhancement, or

23  restoration project shall mean one or more parcels of land

24  with similar ecological communities that are intended to be

25  created, preserved, enhanced, or restored under a common

26  scheme.

27         (a)  For any ongoing creation, preservation,

28  enhancement, or restoration project and regional offsite

29  mitigation area sponsored by the department, a water

30  management district, or a local government, for which money

31  was or is paid as mitigation, that was begun prior to the

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  1  effective date of this subsection and has operated as of the

  2  effective date of this subsection, or is anticipated to

  3  operate, in excess of the mitigation thresholds provided in

  4  this subsection, the governmental entity sponsoring such

  5  project shall submit a draft memorandum of agreement to the

  6  water management district or department by October 1, 2000.

  7  The governmental entity sponsoring such project shall make

  8  reasonable efforts to obtain the final signed memorandum of

  9  agreement within 1 year after such submittal. The governmental

10  entity sponsoring such project may continue to receive moneys

11  donated or paid toward the project as mitigation, provided the

12  requirements of this paragraph are met.

13         (b)  The memorandum of agreement shall establish

14  criteria that each environmental creation, preservation,

15  enhancement, or restoration project must meet. These criteria

16  must address the elements listed in paragraph (c). The entity

17  sponsoring such project, or category of projects, shall submit

18  documentation or other evidence to the water management

19  district or department that the project meets, or individual

20  projects within a category meet, the specified criteria.

21         (c)  At a minimum, the memorandum of agreement must

22  address the following for each project authorized:

23         1.  A description of the work that will be conducted on

24  the site and a timeline for completion of such work.

25         2.  A timeline for obtaining any required environmental

26  resource permit.

27         3.  The environmental success criteria that the project

28  must achieve.

29         4.  The monitoring and long-term management

30  requirements that must be undertaken for the project.

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  1         5.  An assessment of the project in accordance with s.

  2  373.4136(4)(a)-(i), until the adoption of the uniform wetland

  3  mitigation assessment method pursuant to s. 373.414(18).

  4         6.  A designation of the entity responsible for the

  5  successful completion of the mitigation work.

  6         7.  A definition of the geographic area where the

  7  project may be used as mitigation established using the

  8  criteria of s. 373.4136(6).

  9         8.  Full cost accounting of the project, including

10  annual review and adjustment.

11         9.  Provision and a timetable for the acquisition of

12  any lands necessary for the project.

13         10.  Provision for preservation of the site.

14         11.  Provision for application of all moneys received

15  solely to the project for which they were collected.

16         12.  Provision for termination of the agreement and

17  cessation of use of the project as mitigation if any material

18  contingency of the agreement has failed to occur.

19         (d)  A single memorandum of understanding may authorize

20  more than one environmental creation, preservation,

21  enhancement, or restoration project, or category of projects,

22  as long as the elements listed in paragraph (c) are addressed

23  for each project.

24         (e)  Projects governed by this subsection, except for

25  projects established pursuant to subsection (7), shall be

26  subject to the provisions of s. 373.414(1)(b)1.

27         (f)  The provisions of this subsection shall not apply

28  to mitigation areas established to implement the provisions of

29  s. 373.4137.

30         (g)  The provisions of this subsection shall not apply

31  when the department, water management district, or local

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  1  government establishes, or contracts with a private entity to

  2  establish, a mitigation bank permitted under s. 373.4136. The

  3  provisions of this subsection shall not apply to other

  4  entities that establish offsite regional mitigation as defined

  5  in this section and s. 373.403.

  6         (7)  The department, water management districts, and

  7  local governments may elect to establish and manage mitigation

  8  sites, including regional offsite mitigation areas, or

  9  contract with permitted mitigation banks, to provide

10  mitigation options for private single-family lots or

11  homeowners. The department, water management districts, and

12  local governments shall provide a written notice of their

13  election under this paragraph by United States mail to those

14  individuals who have requested, in writing, to receive such

15  notice. The use of mitigation options established under this

16  subsection are not subject to the full-cost-accounting

17  provision of s. 373.414(1)(b)1. To use a mitigation option

18  established under this subsection, the applicant for a permit

19  under this part must be a private, single-family lot or

20  homeowner, and the land upon which the adverse impact is

21  located must be intended for use as a single-family residence

22  by the current owner. The applicant must not be a corporation,

23  partnership, or other business entity. However, the provisions

24  of this subsection shall not apply to other entities that

25  establish offsite regional mitigation as defined in this

26  section and s. 373.403.

27         Section 2.  Subsection (6) of section 373.4136, Florida

28  Statutes, is amended to read:

29         373.4136  Establishment and operation of mitigation

30  banks.--

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  1         (6)  MITIGATION SERVICE AREA.--The department or water

  2  management district shall establish a mitigation service area

  3  for each mitigation bank permit.  The department or water

  4  management district shall notify and consider comments

  5  received on the proposed mitigation service area from each

  6  local government within the proposed mitigation service area

  7  that operates a wetlands regulatory program.  Except as

  8  provided herein, mitigation credits may be withdrawn and used

  9  only to offset adverse impacts in the mitigation service area.

10  The boundaries of the mitigation service area shall depend

11  upon the geographic area where the mitigation bank could

12  reasonably be expected to offset adverse impacts.  A

13  mitigation service area may be larger than the regional

14  watershed if the mitigation bank provides exceptional

15  ecological value such that adverse impacts outside the

16  regional watershed could reasonably be expected to be

17  adequately offset by the mitigation bank. A mitigation service

18  area may be smaller than a regional watershed if adverse

19  impacts throughout the regional watershed cannot reasonably be

20  expected to be offset by the mitigation bank because of local

21  ecological or hydrological conditions.  Mitigation service

22  areas may overlap, and mitigation service areas for two or

23  more mitigation banks may be approved for a regional

24  watershed.

25         (a)  In determining the boundaries of the mitigation

26  service area extent to which a mitigation bank provides

27  exceptional ecological value such that adverse impacts outside

28  the regional watershed could reasonably be expected to be

29  adequately offset by the mitigation bank, the department or

30  the water management district shall consider the

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  1  characteristics, size, and location of the mitigation bank

  2  and, at a minimum, the extent to which the mitigation bank:

  3         1.  Contributes to Will promote a regional integrated

  4  ecological network;

  5         2.  Will significantly enhance the water quality or

  6  restoration of an offsite receiving water body that is

  7  designated as an Outstanding Florida Water, a Wild and Scenic

  8  River, an aquatic preserve, a water body designated in a plan

  9  adopted pursuant to s. 373.456 of the Surface Water

10  Improvement and Management Act, or a nationally designated

11  estuarine preserve;

12         3.  Will provide for the long-term viability of

13  endangered or threatened species or species of special

14  concern; and

15         4.  Is consistent with the objectives of a regional

16  management plan adopted or endorsed by the department or water

17  management districts; and.

18         5.  Can reasonably be expected to offset specific types

19  of wetland impacts within a specific geographic area. A

20  mitigation bank need not be able to offset all expected

21  impacts within its service area.

22         (b)  The department and water management districts

23  shall use regional watersheds to guide the establishment of

24  mitigation service areas. Drainage basins established pursuant

25  to s. 373.414(8) may be used as regional watersheds when they

26  are established based on the hydrological or ecological

27  characteristics of the basin. A mitigation service area may

28  extend beyond the regional watershed in which the bank is

29  located into all or part of other regional watersheds when the

30  mitigation bank has the ability to offset adverse impacts

31  outside that regional watershed. Similarly, a mitigation

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  1  service area may be smaller than the regional watershed in

  2  which the mitigation bank is located when adverse impacts

  3  throughout the regional watershed cannot reasonably be

  4  expected to be offset by the mitigation bank because of local

  5  ecological or hydrological conditions.

  6         (c)(b)  Once a mitigation bank service area has been

  7  established by the department or a water management district

  8  for a mitigation bank, such service area shall be accepted by

  9  all water management districts, local governments, and the

10  department.

11         (d)(c)  If the requirements in s. 373.414(1)(b) and (8)

12  373.4135(1)(b) are met, the following projects or activities

13  regulated under this part shall be eligible to use a

14  mitigation bank, regardless of whether notwithstanding the

15  fact that they are not completely located within the

16  mitigation service area:

17         1.  Projects with adverse impacts partially located

18  within the mitigation service area.

19         2.  Linear projects, such as roadways, transmission

20  lines, distribution lines, pipelines, or railways.

21         3.  Projects with total adverse impacts of less than 1

22  acre in size.

23         Section 3.  Paragraph (b) of subsection (1) and

24  subsections (8) and (18) of section 373.414, Florida Statutes,

25  are amended, and subsection (19) is added to said section, to

26  read:

27         373.414  Additional criteria for activities in surface

28  waters and wetlands.--

29         (1)  As part of an applicant's demonstration that an

30  activity regulated under this part will not be harmful to the

31  water resources or will not be inconsistent with the overall

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  1  objectives of the district, the governing board or the

  2  department shall require the applicant to provide reasonable

  3  assurance that state water quality standards applicable to

  4  waters as defined in s. 403.031(13) will not be violated and

  5  reasonable assurance that such activity in, on, or over

  6  surface waters or wetlands, as delineated in s. 373.421(1), is

  7  not contrary to the public interest. However, if such an

  8  activity significantly degrades or is within an Outstanding

  9  Florida Water, as provided by department rule, the applicant

10  must provide reasonable assurance that the proposed activity

11  will be clearly in the public interest.

12         (b)  If the applicant is unable to otherwise meet the

13  criteria set forth in this subsection, the governing board or

14  the department, in deciding to grant or deny a permit, shall

15  consider measures proposed by or acceptable to the applicant

16  to mitigate adverse effects that may be caused by the

17  regulated activity.  Such measures may include, but are not

18  limited to, onsite mitigation, offsite mitigation, offsite

19  regional mitigation, and the purchase of mitigation credits

20  from mitigation banks permitted under s. 373.4136.  It shall

21  be the responsibility of the applicant to choose the form of

22  mitigation. The mitigation must offset the adverse effects

23  caused by the regulated activity.

24         1.  The department or water management districts may

25  accept the donation of money as mitigation only where the

26  donation is specified for use in a duly noticed environmental

27  creation, preservation, enhancement, or restoration project,

28  endorsed by the department or the governing board of the water

29  management district, which offsets the impacts of the activity

30  permitted under this part.  However, the provisions of this

31  subsection shall not apply to projects undertaken pursuant to

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  1  s. 373.4137 or chapter 378. Where a permit is required under

  2  this part to implement any project endorsed by the department

  3  or a water management district, all necessary permits must

  4  have been issued prior to the acceptance of any cash donation.

  5  After the effective date of this act, when money is donated to

  6  either the department or a water management district to offset

  7  impacts authorized by a permit under this part, the department

  8  or the water management district shall accept only a donation

  9  that represents the full cost to the department or water

10  management district of undertaking the project that is

11  intended to mitigate the adverse impacts. The full cost shall

12  include all direct and indirect costs, as applicable, such as

13  those for land acquisition, land restoration or enhancement,

14  perpetual land management, and general overhead consisting of

15  costs such as staff time, building, and vehicles.  The

16  department or the water management district may use a

17  multiplier or percentage to add to other direct or indirect

18  costs to estimate general overhead.  Mitigation credit for

19  such a donation shall be given only to the extent that the

20  donation covers the full cost to the agency of undertaking the

21  project that is intended to mitigate the adverse impacts.

22  However, nothing herein shall be construed to prevent the

23  department or a water management district from accepting a

24  donation representing a portion of a larger project, provided

25  that the donation covers the full cost of that portion and

26  mitigation credit is given only for that portion.  The

27  department or water management district may deviate from the

28  full cost requirements of this subparagraph to resolve a

29  proceeding brought pursuant to chapter 70 or a claim for

30  inverse condemnation.  Nothing in this section shall be

31  construed to require the owner of a private mitigation bank,

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  1  permitted under s. 373.4136, to include the full cost of a

  2  mitigation credit in the price of the credit to a purchaser of

  3  said credit.

  4         2.  The department and each water management district

  5  shall report to the Executive Office of the Governor by

  6  January 31 and July 31 of each year all cash donations

  7  accepted under subparagraph 1. during the preceding calendar

  8  year 6 months for wetland mitigation purposes, which shall

  9  include a description of the endorsed mitigation projects. The

10  report shall exclude those contributions pursuant to s.

11  373.4137. The report shall include a description of the

12  endorsed mitigation projects and, except for projects governed

13  by s. 373.4135(6), shall address, as applicable, success

14  criteria, project implementation status and timeframe,

15  monitoring, long-term management, provisions for preservation,

16  and full cost accounting.

17         3.  If the applicant is unable to meet water quality

18  standards because existing ambient water quality does not meet

19  standards, the governing board or the department shall

20  consider mitigation measures proposed by or acceptable to the

21  applicant that cause net improvement of the water quality in

22  the receiving body of water for those parameters which do not

23  meet standards.

24         4.  If mitigation requirements imposed by a local

25  government for surface water and wetland impacts of an

26  activity regulated under this part cannot be reconciled with

27  mitigation requirements approved under a permit for the same

28  activity issued under this part, including application of the

29  uniform wetland mitigation assessment method adopted pursuant

30  to subsection (18), the mitigation requirements for surface

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  1  water and wetland impacts shall be controlled by the permit

  2  issued under this part.

  3         (8)(a)  The governing board or the department, in

  4  deciding whether to grant or deny a permit for an activity

  5  regulated under this part shall consider the cumulative

  6  impacts upon surface water and wetlands, as delineated in s.

  7  373.421(1), within the same drainage basin as defined in s.

  8  373.403(9), of:

  9         1.(a)  The activity for which the permit is sought.

10         2.(b)  Projects which are existing or activities

11  regulated under this part which are under construction or

12  projects for which permits or determinations pursuant to s.

13  373.421 or s. 403.914 have been sought.

14         3.(c)  Activities which are under review, approved, or

15  vested pursuant to s. 380.06, or other activities regulated

16  under this part which may reasonably be expected to be located

17  within surface waters or wetlands, as delineated in s.

18  373.421(1), in the same drainage basin as defined in s.

19  373.403(9), based upon the comprehensive plans, adopted

20  pursuant to chapter 163, of the local governments having

21  jurisdiction over the activities, or applicable land use

22  restrictions and regulations.

23         (b)  If an applicant proposes mitigation within the

24  same drainage basin as the adverse impacts to be mitigated,

25  and if the mitigation offsets these adverse impacts, the

26  governing board and department shall consider the regulated

27  activity to meet the cumulative impact requirements of

28  paragraph (a). However, this paragraph may not be construed to

29  prohibit mitigation outside the drainage basin which offsets

30  the adverse impacts within the drainage basin.

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  1         (18)  MITIGATION STUDIES.--The department and each

  2  water management district responsible for implementation of

  3  the environmental resource permitting program shall develop a

  4  uniform wetland mitigation assessment method no later than

  5  October 1, 2001. The department shall adopt the uniform

  6  wetland mitigation assessment method by rule no later than

  7  January 31, 2002. Once the department adopts the uniform

  8  wetland mitigation assessment method by rule, the uniform

  9  wetland mitigation assessment method shall be binding on the

10  department, the water management districts, local governments,

11  and any other governmental agencies and shall be the sole

12  means to determine mitigation needed to offset adverse impacts

13  and to award and deduct mitigation bank credits. A water

14  management district and any other governmental agency subject

15  to chapter 120 may apply the uniform wetland mitigation

16  assessment method without the need to adopt it pursuant to s.

17  120.54. It shall be a goal of the department and water

18  management districts that the uniform wetland mitigation

19  assessment method developed be practicable for use within the

20  timeframes provided in the permitting process and result in a

21  consistent process for determining mitigation requirements. It

22  shall be recognized that any such method shall require the

23  application of reasonable scientific judgment. The uniform

24  wetland mitigation assessment method must determine the value

25  of functions provided by wetlands and other surface waters

26  considering the current conditions of these areas, utilization

27  by fish and wildlife, location, uniqueness, and hydrologic

28  connection, in addition to the factors listed in s.

29  373.4136(4). The uniform wetland mitigation assessment method

30  shall also account for the expected time-lag associated with

31  offsetting impacts and the degree of risk associated with the

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  1  proposed mitigation. The uniform wetland mitigation assessment

  2  method may account for different ecological communities in

  3  different areas of the state. Environmental resource

  4  permitting rules may establish categories of permits or

  5  thresholds for minor impacts under which the use of the

  6  uniform wetland mitigation assessment method will not be

  7  required. The application of the uniform wetland mitigation

  8  assessment method is not subject to s. 70.001. In the event

  9  the rule establishing the uniform wetland mitigation

10  assessment method is deemed to be invalid, the applicable

11  rules related to establishing needed mitigation in existence

12  prior to the adoption of the uniform wetland mitigation

13  assessment method, and the method described in paragraph (b)

14  for existing mitigation banks, shall be authorized for use by

15  the department, water management districts, local governments,

16  and other state agencies.

17         (a)  In developing the uniform wetland mitigation

18  assessment method, the department shall seek input from the

19  United States Army Corps of Engineers in order to promote

20  consistency in the mitigation assessment methods used by the

21  state and federal permitting programs.

22         (b)  An entity which has received a mitigation bank

23  permit prior to the adoption of the uniform wetland mitigation

24  assessment method shall have impact sites assessed, for the

25  purpose of deducting bank credits, using the credit assessment

26  method, including any functional assessment methodology, which

27  was in place when the bank was permitted; unless the entity

28  elects to have its credits redetermined, and thereafter have

29  its credits deducted, using the uniform wetland mitigation

30  assessment method.

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  1         (a)  For impacts resulting from activities regulated

  2  under this part, the Legislature finds that successful

  3  mitigation performed by the public and private sectors has

  4  helped to preserve the state's natural resources.

  5         (b)  The Office of Program Policy Analysis and

  6  Government Accountability shall study the mitigation options

  7  as defined by paragraph (1)(b), implemented from 1994 to the

  8  present, and issue a report by January 31, 2000. The study

  9  shall consider the effectiveness and costs of the current

10  mitigation options in offsetting adverse effects to wetlands

11  and wetland functions, including the application of cumulative

12  impact considerations, and identify, as appropriate,

13  recommendations for statutory or rule changes to increase the

14  effectiveness of mitigation strategies.

15         (19)  The Office of Program Policy Analysis and

16  Government Accountability shall study the cumulative impact

17  consideration required by s. 373.414(8) and issue a report by

18  July 1, 2001. The study shall address the justification for

19  the cumulative impact consideration, changes that can provide

20  clarity and certainty in the cumulative impact consideration,

21  and whether a practicable, consistent, and equitable

22  methodology can be developed for considering cumulative

23  impacts within the environmental resource permitting program.

24         Section 4.  This act shall take effect upon becoming a

25  law.

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