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    Florida House of Representatives - 2002             CS/HB 1299

        By the Council for Ready Infrastructure and
    Representatives Machek and Harrington





  1                      A bill to be entitled

  2         An act relating to water supplies; amending s.

  3         373.0831, F.S.; revising the criteria by which

  4         water supply development projects may receive

  5         priority consideration for funding assistance;

  6         amending s. 373.236, F.S.; encouraging water

  7         conservation measures in the permitting of

  8         consumptive uses of water; amending s.

  9         373.4135, F.S.; conforming language to changes

10         made by the act; amending s. 373.414, F.S.;

11         revising date for adoption by rule of a uniform

12         mitigation assessment method for wetlands and

13         other surface waters; clarifying scope of the

14         rule; deleting a study and report; amending s.

15         378.212, F.S; providing water resource

16         enhancements as a basis for a variance from

17         phosphate mining land reclamation requirements;

18         amending s. 403.067, F.S.; authorizing the

19         development of interim measures or best

20         management practices for specified water bodies

21         or segments for which total maximum daily loads

22         or allocations have not yet been established;

23         amending s. 403.1835, F.S.; providing for

24         below-market interest rate loans for treatment

25         of polluted water; providing for a public

26         education program on state water resources;

27         providing for a study of the feasibility of

28         discharging reclaimed wastewater into canals in

29         Southeast Florida; requiring reports; repealing

30         s. 373.498, F.S., relating to the Water

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  1         Resources Development Account; providing an

  2         effective date.

  3

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

  5

  6         Section 1.  Subsection (4) of section 373.0831, Florida

  7  Statutes, is amended to read:

  8         373.0831  Water resource development; water supply

  9  development.--

10         (4)(a)  Water supply development projects which are

11  consistent with the relevant regional water supply plans and

12  which meet at least one or more of the following criteria

13  shall receive priority consideration for state or water

14  management district funding assistance:

15         1.  The project supports establishment of a dependable,

16  sustainable supply of water which is not otherwise financially

17  feasible;

18         2.  The project provides substantial environmental

19  benefits by preventing or limiting adverse water resource

20  impacts, but requires funding assistance to be economically

21  competitive with other options; or

22         3.  The project significantly implements reuse,

23  storage, recharge, or conservation of water in a manner that

24  contributes to the efficient use and sustainability of

25  regional water supply sources.

26         (b)  Water supply development projects which meet the

27  criteria in paragraph (a) and also bring about replacement of

28  existing sources in order to help implement a minimum flow or

29  level shall be given first consideration for state or water

30  management district funding assistance.

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  1         (c)  If a proposed alternative water supply project is

  2  identified in the relevant approved regional water supply

  3  plan, the project shall be eligible for at least one of the

  4  following:

  5         1.  A consumptive use permit with at least a 10-year

  6  duration, if it otherwise meets the requirements for permit

  7  issuance under s. 373.223 and rules adopted thereunder.

  8         2.  Consideration for priority funding pursuant to s.

  9  373.1961(2) with the implementation of the water resource

10  development component of the proposed project.

11         Section 2.  Subsection (4) is added to section 373.236,

12  Florida Statutes, to read:

13         373.236  Duration of permits; compliance reports.--

14         (4)  The department or the water management district

15  shall consider issuing longer duration permits to applicants

16  who implement and provide reasonable assurances of effective

17  and efficient conservation measures that exceed the average

18  for the industry or type of water use and there is sufficient

19  data to provide reasonable assurance that the conditions for

20  permit issuance will be met for the duration of the permit.

21  Permits issued for a 10-year duration or longer shall be

22  subject to the provisions of subsection (3).

23         Section 3.  Paragraph (c) of subsection (6) of section

24  373.4135, Florida Statutes, is amended to read:

25         373.4135  Mitigation banks and offsite regional

26  mitigation.--

27         (6)  An environmental creation, preservation,

28  enhancement, or restoration project, including regional

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

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

31  management district, or a local government and provides

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  1  mitigation for five or more applicants for permits under this

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

  3  established and operated under a memorandum of agreement. The

  4  memorandum of agreement shall be between the governmental

  5  entity proposing the mitigation project and the department or

  6  water management district, as appropriate. Such memorandum of

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

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

  9  restoration project shall mean one or more parcels of land

10  with similar ecological communities that are intended to be

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

12  scheme.

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

14  address the following for each project authorized:

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

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

17         2.  A timeline for obtaining any required environmental

18  resource permit.

19         3.  The environmental success criteria that the project

20  must achieve.

21         4.  The monitoring and long-term management

22  requirements that must be undertaken for the project.

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

24  373.4136(4)(a)-(i), until the adoption of the uniform wetland

25  mitigation assessment method for wetlands and other surface

26  waters pursuant to s. 373.414(18).

27         6.  A designation of the entity responsible for the

28  successful completion of the mitigation work.

29         7.  A definition of the geographic area where the

30  project may be used as mitigation established using the

31  criteria of s. 373.4136(6).

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  1         8.  Full cost accounting of the project, including

  2  annual review and adjustment.

  3         9.  Provision and a timetable for the acquisition of

  4  any lands necessary for the project.

  5         10.  Provision for preservation of the site.

  6         11.  Provision for application of all moneys received

  7  solely to the project for which they were collected.

  8         12.  Provision for termination of the agreement and

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

10  contingency of the agreement has failed to occur.

11         Section 4.  Paragraph (b) of subsection (1) and

12  subsections (18) and (19) of section 373.414, Florida

13  Statutes, are amended to read:

14         373.414  Additional criteria for activities in surface

15  waters and wetlands.--

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

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

18  water resources or will not be inconsistent with the overall

19  objectives of the district, the governing board or the

20  department shall require the applicant to provide reasonable

21  assurance that state water quality standards applicable to

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

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

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

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

26  activity significantly degrades or is within an Outstanding

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

28  must provide reasonable assurance that the proposed activity

29  will be clearly in the public interest.

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

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

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

  2  consider measures proposed by or acceptable to the applicant

  3  to mitigate adverse effects that may be caused by the

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

  5  limited to, onsite mitigation, offsite mitigation, offsite

  6  regional mitigation, and the purchase of mitigation credits

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

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

  9  mitigation. The mitigation must offset the adverse effects

10  caused by the regulated activity.

11         1.  The department or water management districts may

12  accept the donation of money as mitigation only where the

13  donation is specified for use in a duly noticed environmental

14  creation, preservation, enhancement, or restoration project,

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

16  management district, which offsets the impacts of the activity

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

18  subsection shall not apply to projects undertaken pursuant to

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

20  this part to implement any project endorsed by the department

21  or a water management district, all necessary permits must

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

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

24  either the department or a water management district to offset

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

26  or the water management district shall accept only a donation

27  that represents the full cost to the department or water

28  management district of undertaking the project that is

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

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

31  those for land acquisition, land restoration or enhancement,

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  1  perpetual land management, and general overhead consisting of

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

  3  department or the water management district may use a

  4  multiplier or percentage to add to other direct or indirect

  5  costs to estimate general overhead.  Mitigation credit for

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

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

  8  project that is intended to mitigate the adverse impacts.

  9  However, nothing herein shall be construed to prevent the

10  department or a water management district from accepting a

11  donation representing a portion of a larger project, provided

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

13  mitigation credit is given only for that portion.  The

14  department or water management district may deviate from the

15  full cost requirements of this subparagraph to resolve a

16  proceeding brought pursuant to chapter 70 or a claim for

17  inverse condemnation.  Nothing in this section shall be

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

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

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

21  said credit.

22         2.  The department and each water management district

23  shall report to the Executive Office of the Governor by

24  January 31 of each year all cash donations accepted under

25  subparagraph 1. during the preceding calendar year for wetland

26  mitigation purposes. The report shall exclude those

27  contributions pursuant to s. 373.4137. The report shall

28  include a description of the endorsed mitigation projects and,

29  except for projects governed by s. 373.4135(6), shall address,

30  as applicable, success criteria, project implementation status

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  1  and timeframe, monitoring, long-term management, provisions

  2  for preservation, and full cost accounting.

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

  4  standards because existing ambient water quality does not meet

  5  standards, the governing board or the department shall

  6  consider mitigation measures proposed by or acceptable to the

  7  applicant that cause net improvement of the water quality in

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

  9  meet standards.

10         4.  If mitigation requirements imposed by a local

11  government for surface water and wetland impacts of an

12  activity regulated under this part cannot be reconciled with

13  mitigation requirements approved under a permit for the same

14  activity issued under this part, including application of the

15  uniform wetland mitigation assessment method for wetlands and

16  other surface waters adopted pursuant to subsection (18), the

17  mitigation requirements for surface water and wetland impacts

18  shall be controlled by the permit issued under this part.

19         (18)  The department and each water management district

20  responsible for implementation of the environmental resource

21  permitting program shall develop a uniform wetland mitigation

22  assessment method for wetlands and other surface waters no

23  later than October 1, 2001. The department shall adopt the

24  uniform wetland mitigation assessment method by rule no later

25  than July January 31, 2002. The rule shall provide an

26  exclusive and consistent process for determining the amount of

27  mitigation required to offset impacts to wetlands and other

28  surface waters, and, once effective, shall supersede all

29  rules, ordinances, and variance procedures from ordinances

30  that determine the amount of mitigation needed to offset such

31  impacts. Once the department adopts the uniform wetland

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  1  mitigation assessment method by rule, the uniform wetland

  2  mitigation assessment method shall be binding on the

  3  department, the water management districts, local governments,

  4  and any other governmental agencies and shall be the sole

  5  means to determine the amount of mitigation needed to offset

  6  adverse impacts to wetlands and other surface waters and to

  7  award and deduct mitigation bank credits. A water management

  8  district and any other governmental agency subject to chapter

  9  120 may apply the uniform wetland mitigation assessment method

10  without the need to adopt it pursuant to s. 120.54. It shall

11  be a goal of the department and water management districts

12  that the uniform wetland mitigation assessment method

13  developed be practicable for use within the timeframes

14  provided in the permitting process and result in a consistent

15  process for determining mitigation requirements. It shall be

16  recognized that any such method shall require the application

17  of reasonable scientific judgment. The uniform wetland

18  mitigation assessment method must determine the value of

19  functions provided by wetlands and other surface waters

20  considering the current conditions of these areas, utilization

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

22  connection, and, when applied to mitigation banks, in addition

23  to the factors listed in s. 373.4136(4). The uniform wetland

24  mitigation assessment method shall also account for the

25  expected time-lag associated with offsetting impacts and the

26  degree of risk associated with the proposed mitigation. The

27  uniform wetland mitigation assessment method shall account for

28  different ecological communities in different areas of the

29  state. In developing the uniform wetland mitigation assessment

30  method, the department and water management districts shall

31  consult with approved local programs under s. 403.182 which

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  1  have an established wetland mitigation program for wetlands or

  2  other surface waters. The department and water management

  3  districts shall consider the recommendations submitted by such

  4  approved local programs, including any recommendations

  5  relating to the adoption by the department and water

  6  management districts of any uniform wetland mitigation

  7  methodology that has been adopted and used by an approved

  8  local program in its established wetland mitigation program

  9  for wetlands or other surface waters. Environmental resource

10  permitting rules may establish categories of permits or

11  thresholds for minor impacts under which the use of the

12  uniform wetland mitigation assessment method will not be

13  required. The application of the uniform wetland mitigation

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

15  the rule establishing the uniform wetland mitigation

16  assessment method is deemed to be invalid, the applicable

17  rules related to establishing needed mitigation in existence

18  prior to the adoption of the uniform wetland mitigation

19  assessment method, including those adopted by a county which

20  is an approved local program under s. 403.182, and the method

21  described in paragraph (b) for existing mitigation banks,

22  shall be authorized for use by the department, water

23  management districts, local governments, and other state

24  agencies.

25         (a)  In developing the uniform wetland mitigation

26  assessment method, the department shall seek input from the

27  United States Army Corps of Engineers in order to promote

28  consistency in the mitigation assessment methods used by the

29  state and federal permitting programs.

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

31  permit prior to the adoption of the uniform wetland mitigation

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  1  assessment method shall have impact sites assessed, for the

  2  purpose of deducting bank credits, using the credit assessment

  3  method, including any functional assessment methodology, which

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

  5  elects to have its credits redetermined, and thereafter have

  6  its credits deducted, using the uniform wetland mitigation

  7  assessment method.

  8         (19)  The Office of Program Policy Analysis and

  9  Government Accountability shall study the cumulative impact

10  consideration required by subsection (8) and issue a report by

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

12  the cumulative impact consideration, changes that can provide

13  clarity and certainty in the cumulative impact consideration,

14  and whether a practicable, consistent, and equitable

15  methodology can be developed for considering cumulative

16  impacts within the environmental resource permitting program.

17         Section 5.  Paragraph (g) is added to subsection (1) of

18  section 378.212, Florida Statutes, to read:

19         378.212  Variances.--

20         (1)  Upon application, the secretary may grant a

21  variance from the provisions of this part or the rules adopted

22  pursuant thereto. Variances and renewals thereof may be

23  granted for any one of the following reasons:

24         (g)  To accommodate reclamation that provides water

25  supply development or water resource development consistent

26  with the regional water supply plan approved pursuant to s.

27  373.0361, provided regional water resources are not adversely

28  affected.

29         Section 6.  Subsection (11) of section 403.067, Florida

30  Statutes, is amended to read:

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  1         403.067  Establishment and implementation of total

  2  maximum daily loads.--

  3         (11)  IMPLEMENTATION OF ADDITIONAL PROGRAMS.--

  4         (a)  The department shall not implement, without prior

  5  legislative approval, any additional regulatory authority

  6  pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part

  7  130, if such implementation would result in water quality

  8  discharge regulation of activities not currently subject to

  9  regulation.

10         (b)  Interim measures, best management practices, or

11  other measures may be developed and voluntarily implemented

12  pursuant to paragraph (7)(c) or paragraph (7)(d) for any water

13  body or segment for which a total maximum daily load or

14  allocation has not been established. The implementation of

15  such pollution control programs may be considered by the

16  department in the determination made pursuant to subsection

17  (4).

18         Section 7.  Paragraph (b) of subsection (3) of section

19  403.1835, Florida Statutes, is amended to read:

20         403.1835  Water pollution control financial

21  assistance.--

22         (3)  The department may provide financial assistance

23  through any program authorized under s. 603 of the Federal

24  Water Pollution Control Act (Clean Water Act), Pub. L. No.

25  92-500, as amended, including, but not limited to, making

26  grants and loans, providing loan guarantees, purchasing loan

27  insurance or other credit enhancements, and buying or

28  refinancing local debt. This financial assistance must be

29  administered in accordance with this section and applicable

30  federal authorities. The department shall administer all

31  programs operated from funds secured through the activities of

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  1  the Florida Water Pollution Control Financing Corporation

  2  under s. 403.1837, to fulfill the purposes of this section.

  3         (b)  The department may make or request the corporation

  4  to make loans, grants, and deposits to other entities eligible

  5  to participate in the financial assistance programs authorized

  6  under the Federal Water Pollution Control Act, or as a result

  7  of other federal action, which entities may pledge any revenue

  8  available to them to repay any funds borrowed. Notwithstanding

  9  s. 18.10, the department may make deposits to financial

10  institutions that earn less than the prevailing rate for

11  United States Treasury securities with corresponding

12  maturities for the purpose of enabling such financial

13  institutions to make below-market interest rate loans to

14  entities qualified to receive loans under this section and the

15  rules of the department.

16         Section 8.  In order to aid in the development of a

17  better understanding of the unique surface and ground water

18  resources of this state, the water management districts shall

19  develop an information program designed to provide information

20  on existing hydrologic conditions of major surface and ground

21  water sources in this state and suggestions for good

22  conservation practices within those areas. The program shall

23  be developed no later than December 31, 2002.  Beginning

24  January 1, 2003, and on a regular basis no less than every 6

25  months thereafter, the information developed pursuant to this

26  section shall be distributed to every member of the Senate and

27  the House of Representatives and to local print and broadcast

28  news organizations.  Each water management district shall be

29  responsible for the distribution of this information within

30  its established geographic area.

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  1         Section 9.  The Legislature finds that within the area

  2  identified in the Lower East Coast Regional Water Supply Plan

  3  approved by the South Florida Water Management District

  4  pursuant to s. 373.0361, the groundwater levels can benefit

  5  from augmentation.  The Legislature finds that the discharge

  6  of reclaimed water into canals for transport and subsequent

  7  reuse may provide an environmentally acceptable means to

  8  augment water supplies and enhance natural systems; however,

  9  the Legislature also recognizes that there are water quality

10  and water quantity issues that must be better understood and

11  resolved.  In addition, there are cost savings possible by

12  collocating enclosed conduits for conveyance of water for

13  reuse in this area within canal right-of-way that should be

14  investigated.  Toward that end, the Department of

15  Environmental Protection, in consultation with the South

16  Florida Water Management District, Southeast Florida

17  utilities, affected local governments, including local

18  governments with principal responsibility for the operation

19  and maintenance of a water control system capable of conveying

20  reclaimed wastewater for reuse, representatives of the

21  environmental and engineering communities, public health

22  professionals, and individuals having expertise in water

23  quality, shall conduct a study to investigate the feasibility

24  of discharging reclaimed wastewater into canals as an

25  environmentally acceptable means of augmenting groundwater

26  supplies, enhancing natural systems, and conveying reuse water

27  within enclosed conduits within the canal right-of-way.  The

28  study shall include an assessment of the water quality, water

29  supply, public health, technical, and legal implications

30  related to the canal discharge and collocation concepts.  The

31  department shall issue a preliminary written report containing

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  1  draft findings and recommendations for public comment by

  2  November 1, 2002.  The department shall provide a written

  3  report on the results of its study to the Governor and the

  4  substantive committees of the House of Representatives and the

  5  Senate by January 31, 2003.  Nothing in this section shall be

  6  used to alter the purpose of the Comprehensive Everglades

  7  Restoration Plan or the implementation of the Water Resources

  8  Development Act of 2000.

  9         Section 10.  Section 373.498, Florida Statutes, is

10  repealed.

11         Section 11.  This act shall take effect upon becoming a

12  law.

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