House Bill 2365e1

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







                                       CS/HB 2365, First Engrossed



  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

31         cumulative impact considerations; directing the


                                  1

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






                                       CS/HB 2365, First Engrossed



  1         St. Johns River Water Management District to

  2         classify the Lake Jesup Basin as a separate and

  3         distinct basin for certain purposes, and to

  4         treat it as a vested basin; creating s.

  5         373.200, F.S.; specifying the role of the

  6         Seminole Tribe Water Rights Compact; providing

  7         an effective date.

  8

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

10

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

12  section 373.4135, Florida Statutes, to read:

13         373.4135  Mitigation banks and offsite regional

14  mitigation.--

15         (6)  An environmental creation, preservation,

16  enhancement, or restoration project, including regional

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

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

19  management district, or a local government and provides

20  mitigation for five or more applicants for permits under this

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

22  established and operated under a memorandum of agreement. The

23  memorandum of agreement shall be between the governmental

24  entity proposing the mitigation project and the department or

25  water management district, as appropriate. Such memorandum of

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

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

28  restoration project shall mean one or more parcels of land

29  with similar ecological communities that are intended to be

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

31  scheme.


                                  2

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






                                       CS/HB 2365, First Engrossed



  1         (a)  For any ongoing creation, preservation,

  2  enhancement, or restoration project and regional offsite

  3  mitigation area sponsored by the department, a water

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

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

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

  7  effective date of this subsection, or is anticipated to

  8  operate, in excess of the mitigation thresholds provided in

  9  this subsection, the governmental entity sponsoring such

10  project shall submit a draft memorandum of agreement to the

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

12  The governmental entity sponsoring such project shall make

13  reasonable efforts to obtain the final signed memorandum of

14  agreement within 1 year after such submittal. The governmental

15  entity sponsoring such project may continue to receive moneys

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

17  requirements of this paragraph are met.

18         (b)  The memorandum of agreement shall establish

19  criteria that each environmental creation, preservation,

20  enhancement, or restoration project must meet. These criteria

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

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

23  documentation or other evidence to the water management

24  district or department that the project meets, or individual

25  projects within a category meet, the specified criteria.

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

27  address the following for each project authorized:

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

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

30         2.  A timeline for obtaining any required environmental

31  resource permit.


                                  3

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






                                       CS/HB 2365, First Engrossed



  1         3.  The environmental success criteria that the project

  2  must achieve.

  3         4.  The monitoring and long-term management

  4  requirements that must be undertaken for the project.

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

  6  373.4136(4)(a)-(i), until the adoption of the uniform wetland

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

  8         6.  A designation of the entity responsible for the

  9  successful completion of the mitigation work.

10         7.  A definition of the geographic area where the

11  project may be used as mitigation established using the

12  criteria of s. 373.4136(6).

13         8.  Full cost accounting of the project, including

14  annual review and adjustment.

15         9.  Provision and a timetable for the acquisition of

16  any lands necessary for the project.

17         10.  Provision for preservation of the site.

18         11.  Provision for application of all moneys received

19  solely to the project for which they were collected.

20         12.  Provision for termination of the agreement and

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

22  contingency of the agreement has failed to occur.

23         (d)  A single memorandum of understanding may authorize

24  more than one environmental creation, preservation,

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

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

27  for each project.

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

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

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

31


                                  4

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






                                       CS/HB 2365, First Engrossed



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

  2  to mitigation areas established to implement the provisions of

  3  s. 373.4137.

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

  5  when the department, water management district, or local

  6  government establishes, or contracts with a private entity to

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

  8  provisions of this subsection shall not apply to other

  9  entities that establish offsite regional mitigation as defined

10  in this section and s. 373.403.

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

12  local governments may elect to establish and manage mitigation

13  sites, including regional offsite mitigation areas, or

14  contract with permitted mitigation banks, to provide

15  mitigation options for private single-family lots or

16  homeowners. The department, water management districts, and

17  local governments shall provide a written notice of their

18  election under this paragraph by United States mail to those

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

20  notice. The use of mitigation options established under this

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

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

23  established under this subsection, the applicant for a permit

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

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

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

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

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

29  of this subsection shall not apply to other entities that

30  establish offsite regional mitigation as defined in this

31  section and s. 373.403.


                                  5

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






                                       CS/HB 2365, First Engrossed



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

  2  Statutes, is amended to read:

  3         373.4136  Establishment and operation of mitigation

  4  banks.--

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

  6  management district shall establish a mitigation service area

  7  for each mitigation bank permit.  The department or water

  8  management district shall notify and consider comments

  9  received on the proposed mitigation service area from each

10  local government within the proposed mitigation service area

11  that operates a wetlands regulatory program.  Except as

12  provided herein, mitigation credits may be withdrawn and used

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

14  The boundaries of the mitigation service area shall depend

15  upon the geographic area where the mitigation bank could

16  reasonably be expected to offset adverse impacts.  A

17  mitigation service area may be larger than the regional

18  watershed if the mitigation bank provides exceptional

19  ecological value such that adverse impacts outside the

20  regional watershed could reasonably be expected to be

21  adequately offset by the mitigation bank. A mitigation service

22  area may be smaller than a regional watershed if adverse

23  impacts throughout the regional watershed cannot reasonably be

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

25  ecological or hydrological conditions.  Mitigation service

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

27  more mitigation banks may be approved for a regional

28  watershed.

29         (a)  In determining the boundaries of the mitigation

30  service area extent to which a mitigation bank provides

31  exceptional ecological value such that adverse impacts outside


                                  6

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






                                       CS/HB 2365, First Engrossed



  1  the regional watershed could reasonably be expected to be

  2  adequately offset by the mitigation bank, the department or

  3  the water management district shall consider the

  4  characteristics, size, and location of the mitigation bank

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

  6         1.  Contributes to Will promote a regional integrated

  7  ecological network;

  8         2.  Will significantly enhance the water quality or

  9  restoration of an offsite receiving water body that is

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

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

12  adopted pursuant to s. 373.456 of the Surface Water

13  Improvement and Management Act, or a nationally designated

14  estuarine preserve;

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

16  endangered or threatened species or species of special

17  concern; and

18         4.  Is consistent with the objectives of a regional

19  management plan adopted or endorsed by the department or water

20  management districts; and.

21         5.  Can reasonably be expected to offset specific types

22  of wetland impacts within a specific geographic area. A

23  mitigation bank need not be able to offset all expected

24  impacts within its service area.

25         (b)  The department and water management districts

26  shall use regional watersheds to guide the establishment of

27  mitigation service areas. Drainage basins established pursuant

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

29  are established based on the hydrological or ecological

30  characteristics of the basin. A mitigation service area may

31  extend beyond the regional watershed in which the bank is


                                  7

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






                                       CS/HB 2365, First Engrossed



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

  2  mitigation bank has the ability to offset adverse impacts

  3  outside that regional watershed. Similarly, a mitigation

  4  service area may be smaller than the regional watershed in

  5  which the mitigation bank is located when adverse impacts

  6  throughout the regional watershed cannot reasonably be

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

  8  ecological or hydrological conditions.

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

10  established by the department or a water management district

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

12  all water management districts, local governments, and the

13  department.

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

15  373.4135(1)(b) are met, the following projects or activities

16  regulated under this part shall be eligible to use a

17  mitigation bank, regardless of whether notwithstanding the

18  fact that they are not completely located within the

19  mitigation service area:

20         1.  Projects with adverse impacts partially located

21  within the mitigation service area.

22         2.  Linear projects, such as roadways, transmission

23  lines, distribution lines, pipelines, or railways.

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

25  acre in size.

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

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

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

29  read:

30         373.414  Additional criteria for activities in surface

31  waters and wetlands.--


                                  8

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






                                       CS/HB 2365, First Engrossed



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

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

  3  water resources or will not be inconsistent with the overall

  4  objectives of the district, the governing board or the

  5  department shall require the applicant to provide reasonable

  6  assurance that state water quality standards applicable to

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

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

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

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

11  activity significantly degrades or is within an Outstanding

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

13  must provide reasonable assurance that the proposed activity

14  will be clearly in the public interest.

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

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

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

18  consider measures proposed by or acceptable to the applicant

19  to mitigate adverse effects that may be caused by the

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

21  limited to, onsite mitigation, offsite mitigation, offsite

22  regional mitigation, and the purchase of mitigation credits

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

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

25  mitigation. The mitigation must offset the adverse effects

26  caused by the regulated activity.

27         1.  The department or water management districts may

28  accept the donation of money as mitigation only where the

29  donation is specified for use in a duly noticed environmental

30  creation, preservation, enhancement, or restoration project,

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


                                  9

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






                                       CS/HB 2365, First Engrossed



  1  management district, which offsets the impacts of the activity

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

  3  subsection shall not apply to projects undertaken pursuant to

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

  5  this part to implement any project endorsed by the department

  6  or a water management district, all necessary permits must

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

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

  9  either the department or a water management district to offset

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

11  or the water management district shall accept only a donation

12  that represents the full cost to the department or water

13  management district of undertaking the project that is

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

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

16  those for land acquisition, land restoration or enhancement,

17  perpetual land management, and general overhead consisting of

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

19  department or the water management district may use a

20  multiplier or percentage to add to other direct or indirect

21  costs to estimate general overhead.  Mitigation credit for

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

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

24  project that is intended to mitigate the adverse impacts.

25  However, nothing herein shall be construed to prevent the

26  department or a water management district from accepting a

27  donation representing a portion of a larger project, provided

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

29  mitigation credit is given only for that portion.  The

30  department or water management district may deviate from the

31  full cost requirements of this subparagraph to resolve a


                                  10

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






                                       CS/HB 2365, First Engrossed



  1  proceeding brought pursuant to chapter 70 or a claim for

  2  inverse condemnation.  Nothing in this section shall be

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

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

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

  6  said credit.

  7         2.  The department and each water management district

  8  shall report to the Executive Office of the Governor by

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

10  accepted under subparagraph 1. during the preceding calendar

11  year 6 months for wetland mitigation purposes, which shall

12  include a description of the endorsed mitigation projects. The

13  report shall exclude those contributions pursuant to s.

14  373.4137. The report shall include a description of the

15  endorsed mitigation projects and, except for projects governed

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

17  criteria, project implementation status and timeframe,

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

19  and full cost accounting.

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

21  standards because existing ambient water quality does not meet

22  standards, the governing board or the department shall

23  consider mitigation measures proposed by or acceptable to the

24  applicant that cause net improvement of the water quality in

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

26  meet standards.

27         4.  If mitigation requirements imposed by a local

28  government for surface water and wetland impacts of an

29  activity regulated under this part cannot be reconciled with

30  mitigation requirements approved under a permit for the same

31  activity issued under this part, including application of the


                                  11

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






                                       CS/HB 2365, First Engrossed



  1  uniform wetland mitigation assessment method adopted pursuant

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

  3  water and wetland impacts shall be controlled by the permit

  4  issued under this part.

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

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

  7  regulated under this part shall consider the cumulative

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

  9  373.421(1), within the same drainage basin as defined in s.

10  373.403(9), of:

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

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

13  regulated under this part which are under construction or

14  projects for which permits or determinations pursuant to s.

15  373.421 or s. 403.914 have been sought.

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

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

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

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

20  373.421(1), in the same drainage basin as defined in s.

21  373.403(9), based upon the comprehensive plans, adopted

22  pursuant to chapter 163, of the local governments having

23  jurisdiction over the activities, or applicable land use

24  restrictions and regulations.

25         (b)  If an applicant proposes mitigation within the

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

27  and if the mitigation offsets these adverse impacts, the

28  governing board and department shall consider the regulated

29  activity to meet the cumulative impact requirements of

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

31


                                  12

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






                                       CS/HB 2365, First Engrossed



  1  prohibit mitigation outside the drainage basin which offsets

  2  the adverse impacts within the drainage basin.

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

  4  water management district responsible for implementation of

  5  the environmental resource permitting program shall develop a

  6  uniform wetland mitigation assessment method no later than

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

  8  wetland mitigation assessment method by rule no later than

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

10  wetland mitigation assessment method by rule, the uniform

11  wetland mitigation assessment method shall be binding on the

12  department, the water management districts, local governments,

13  and any other governmental agencies and shall be the sole

14  means to determine mitigation needed to offset adverse impacts

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

16  management district and any other governmental agency subject

17  to chapter 120 may apply the uniform wetland mitigation

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

19  120.54. It shall be a goal of the department and water

20  management districts that the uniform wetland mitigation

21  assessment method developed be practicable for use within the

22  timeframes provided in the permitting process and result in a

23  consistent process for determining mitigation requirements. It

24  shall be recognized that any such method shall require the

25  application of reasonable scientific judgment. The uniform

26  wetland mitigation assessment method must determine the value

27  of functions provided by wetlands and other surface waters

28  considering the current conditions of these areas, utilization

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

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

31  373.4136(4). The uniform wetland mitigation assessment method


                                  13

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






                                       CS/HB 2365, First Engrossed



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

  2  offsetting impacts and the degree of risk associated with the

  3  proposed mitigation. The uniform wetland mitigation assessment

  4  method shall account for different ecological communities in

  5  different areas of the state.  In developing the uniform

  6  wetland mitigation assessment method, the department and water

  7  management districts shall consult with approved local

  8  programs under s. 403.182 which have an established wetland

  9  mitigation program.  The department and water management

10  districts shall consider the recommendations submitted by such

11  approved local programs, including any recommendations

12  relating to the adoption by the department and water

13  management districts of any uniform wetland mitigation

14  methodology that has been adopted and used by an approved

15  local program in its established wetland mitigation

16  program.  Environmental resource permitting rules may

17  establish categories of permits or thresholds for minor

18  impacts under which the use of the uniform wetland mitigation

19  assessment method will not be required. The application of the

20  uniform wetland mitigation assessment method is not subject to

21  s. 70.001. In the event the rule establishing the uniform

22  wetland mitigation assessment method is deemed to be invalid,

23  the applicable rules related to establishing needed mitigation

24  in existence prior to the adoption of the uniform wetland

25  mitigation assessment method, and the method described in

26  paragraph (b) for existing mitigation banks, shall be

27  authorized for use by the department, water management

28  districts, local governments, and other state agencies.

29         (a)  In developing the uniform wetland mitigation

30  assessment method, the department shall seek input from the

31  United States Army Corps of Engineers in order to promote


                                  14

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






                                       CS/HB 2365, First Engrossed



  1  consistency in the mitigation assessment methods used by the

  2  state and federal permitting programs.

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

  4  permit prior to the adoption of the uniform wetland mitigation

  5  assessment method shall have impact sites assessed, for the

  6  purpose of deducting bank credits, using the credit assessment

  7  method, including any functional assessment methodology, which

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

  9  elects to have its credits redetermined, and thereafter have

10  its credits deducted, using the uniform wetland mitigation

11  assessment method.

12         (a)  For impacts resulting from activities regulated

13  under this part, the Legislature finds that successful

14  mitigation performed by the public and private sectors has

15  helped to preserve the state's natural resources.

16         (b)  The Office of Program Policy Analysis and

17  Government Accountability shall study the mitigation options

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

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

20  shall consider the effectiveness and costs of the current

21  mitigation options in offsetting adverse effects to wetlands

22  and wetland functions, including the application of cumulative

23  impact considerations, and identify, as appropriate,

24  recommendations for statutory or rule changes to increase the

25  effectiveness of mitigation strategies.

26         (19)  The Office of Program Policy Analysis and

27  Government Accountability shall study the cumulative impact

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

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

30  the cumulative impact consideration, changes that can provide

31  clarity and certainty in the cumulative impact consideration,


                                  15

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






                                       CS/HB 2365, First Engrossed



  1  and whether a practicable, consistent, and equitable

  2  methodology can be developed for considering cumulative

  3  impacts within the environmental resource permitting program.

  4         Section 4.  Under its Environmental Resource Permit

  5  program, the St. Johns River Water Management District shall

  6  delineate the Lake Jesup basin as a separate and distinct

  7  drainage basin and regional watershed as shown in Figure

  8  12.2.8-1 and Appendix M, of the St. Johns River Water

  9  Management District's Applicants Handbook:  Management and

10  Storage of Surface Waters, incorporated by reference in Rule

11  40C-4.091, Florida Administrative Code, effective as of May 1,

12  2000.

13         Section 5.  Section 373.200, Florida Statutes, is

14  created to read:

15         373.200  Seminole Tribe Water Rights Compact.--Pursuant

16  to the provisions of s. 285.165, the South Florida Water

17  Management District is authorized to act in accordance with

18  the Seminole Tribe Water Rights Compact incorporated by

19  reference therein.

20         Section 6.  This act shall take effect upon becoming a

21  law.

22

23

24

25

26

27

28

29

30

31


                                  16