Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for CS for HB 389
Barcode 417080
LEGISLATIVE ACTION
Senate . House
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Senator Bogdanoff moved the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 121 and 122
4 insert:
5 Section 4. Subsections (1) and (2), paragraph (c) of
6 subsection (3), and subsection (4) of section 373.4137, Florida
7 Statutes, are amended to read:
8 373.4137 Mitigation requirements for specified
9 transportation projects.—
10 (1) The Legislature finds that environmental mitigation for
11 the impact of transportation projects proposed by the Department
12 of Transportation or a transportation authority established
13 pursuant to chapter 348 or chapter 349 can be more effectively
14 achieved by regional, long-range mitigation planning rather than
15 on a project-by-project basis. It is the intent of the
16 Legislature that mitigation to offset the adverse effects of
17 these transportation projects be funded by the Department of
18 Transportation and be carried out by the water management
19 districts, through including the use of private mitigation banks
20 if available or, if a private mitigation bank is not available,
21 through any other mitigation options that satisfy state and
22 federal requirements established pursuant to this part.
23 (2) Environmental impact inventories for transportation
24 projects proposed by the Department of Transportation or a
25 transportation authority established pursuant to chapter 348 or
26 chapter 349 shall be developed as follows:
27 (a) By July 1 of each year, the Department of
28 Transportation or a transportation authority established
29 pursuant to chapter 348 or chapter 349 which chooses to
30 participate in this program shall submit to the water management
31 districts a list copy of its projects in the adopted work
32 program and an environmental impact inventory of habitats
33 addressed in the rules adopted pursuant to this part and s. 404
34 of the Clean Water Act, 33 U.S.C. s. 1344, which may be impacted
35 by its plan of construction for transportation projects in the
36 next 3 years of the tentative work program. The Department of
37 Transportation or a transportation authority established
38 pursuant to chapter 348 or chapter 349 may also include in its
39 environmental impact inventory the habitat impacts of any future
40 transportation project. The Department of Transportation and
41 each transportation authority established pursuant to chapter
42 348 or chapter 349 may fund any mitigation activities for future
43 projects using current year funds.
44 (b) The environmental impact inventory shall include a
45 description of these habitat impacts, including their location,
46 acreage, and type; state water quality classification of
47 impacted wetlands and other surface waters; any other state or
48 regional designations for these habitats; and a list survey of
49 threatened species, endangered species, and species of special
50 concern affected by the proposed project.
51 (3)
52 (c) Except for current mitigation projects in the
53 monitoring and maintenance phase and except as allowed by
54 paragraph (d), the water management districts may request a
55 transfer of funds from an escrow account no sooner than 30 days
56 prior to the date the funds are needed to pay for activities
57 associated with development or implementation of the approved
58 mitigation plan described in subsection (4) for the current
59 fiscal year, including, but not limited to, design, engineering,
60 production, and staff support. Actual conceptual plan
61 preparation costs incurred before plan approval may be submitted
62 to the Department of Transportation or the appropriate
63 transportation authority each year with the plan. The conceptual
64 plan preparation costs of each water management district will be
65 paid from mitigation funds associated with the environmental
66 impact inventory for the current year. The amount transferred to
67 the escrow accounts each year by the Department of
68 Transportation and participating transportation authorities
69 established pursuant to chapter 348 or chapter 349 shall
70 correspond to a cost per acre of $75,000 multiplied by the
71 projected acres of impact identified in the environmental impact
72 inventory described in subsection (2). However, the $75,000 cost
73 per acre does not constitute an admission against interest by
74 the state or its subdivisions nor is the cost admissible as
75 evidence of full compensation for any property acquired by
76 eminent domain or through inverse condemnation. Each July 1, the
77 cost per acre shall be adjusted by the percentage change in the
78 average of the Consumer Price Index issued by the United States
79 Department of Labor for the most recent 12-month period ending
80 September 30, compared to the base year average, which is the
81 average for the 12-month period ending September 30, 1996. Each
82 quarter, the projected acreage of impact shall be reconciled
83 with the acreage of impact of projects as permitted, including
84 permit modifications, pursuant to this part and s. 404 of the
85 Clean Water Act, 33 U.S.C. s. 1344. The subject year’s transfer
86 of funds shall be adjusted accordingly to reflect the acreage of
87 impacts as permitted. The Department of Transportation and
88 participating transportation authorities established pursuant to
89 chapter 348 or chapter 349 are authorized to transfer such funds
90 from the escrow accounts to the water management districts to
91 carry out the mitigation programs. Environmental mitigation
92 funds that are identified or maintained in an escrow account for
93 the benefit of a water management district may be released if
94 the associated transportation project is excluded in whole or
95 part from the mitigation plan. For a mitigation project that is
96 in the maintenance and monitoring phase, the water management
97 district may request and receive a one-time payment based on the
98 project’s expected future maintenance and monitoring costs. Upon
99 disbursement of the final maintenance and monitoring payment,
100 the department or the participating transportation authorities’
101 obligation will be satisfied, the water management district will
102 have continuing responsibility for the mitigation project, and
103 the escrow account for the project established by the Department
104 of Transportation or the participating transportation authority
105 may be closed. Any interest earned on these disbursed funds
106 shall remain with the water management district and must be used
107 as authorized under this section.
108 (4) Prior to March 1 of each year, each water management
109 district, in consultation with the Department of Environmental
110 Protection, the United States Army Corps of Engineers, the
111 Department of Transportation, participating transportation
112 authorities established pursuant to chapter 348 or chapter 349,
113 and other appropriate federal, state, and local governments, and
114 other interested parties, including entities operating
115 mitigation banks, shall develop a plan for the primary purpose
116 of complying with the mitigation requirements adopted pursuant
117 to this part and 33 U.S.C. s. 1344. In developing such plans,
118 private mitigation banks shall be used if available or, if a
119 private mitigation bank is not available, the districts shall
120 use utilize sound ecosystem management practices to address
121 significant water resource needs and shall focus on activities
122 of the Department of Environmental Protection and the water
123 management districts, such as surface water improvement and
124 management (SWIM) projects and lands identified for potential
125 acquisition for preservation, restoration or enhancement, and
126 the control of invasive and exotic plants in wetlands and other
127 surface waters, to the extent that such activities comply with
128 the mitigation requirements adopted under this part and 33
129 U.S.C. s. 1344. In determining the activities to be included in
130 such plans, the districts shall also consider the purchase of
131 credits from public or private mitigation banks permitted under
132 s. 373.4136 and associated federal authorization and shall
133 include such purchase as a part of the mitigation plan when such
134 purchase would offset the impact of the transportation project,
135 provide equal benefits to the water resources than other
136 mitigation options being considered, and provide the most cost
137 effective mitigation option. The mitigation plan shall be
138 submitted to the water management district governing board, or
139 its designee, for review and approval. At least 14 days prior to
140 approval, the water management district shall provide a copy of
141 the draft mitigation plan to any person who has requested a
142 copy.
143 (a) For each transportation project with a funding request
144 for the next fiscal year, the mitigation plan must include a
145 brief explanation of why a mitigation bank was or was not chosen
146 as a mitigation option, including an estimation of identifiable
147 costs of the mitigation bank and nonbank options to the extent
148 practicable.
149 (b) Specific projects may be excluded from the mitigation
150 plan, in whole or in part, and shall not be subject to this
151 section upon the election agreement of the Department of
152 Transportation, or a transportation authority if applicable, or
153 and the appropriate water management district that the inclusion
154 of such projects would hamper the efficiency or timeliness of
155 the mitigation planning and permitting process. The water
156 management district may choose to exclude a project in whole or
157 in part if the district is unable to identify mitigation that
158 would offset impacts of the project.
159 Section 5. The amendments to s. 373.4137, Florida Statutes,
160 made by this act do not apply within the territory of the
161 Northwest Florida Water Management District until July 2, 2016.
162
163 ================= T I T L E A M E N D M E N T ================
164 And the title is amended as follows:
165 Delete line 25
166 and insert:
167 permit; amending s. 373.4137, F.S.; revising
168 legislative findings with respect to the options for
169 mitigation relating to transportation projects;
170 revising certain requirements for determining the
171 habitat impacts of transportation projects; requiring
172 water management districts to purchase credits from
173 public or private mitigation banks under certain
174 conditions; providing for the release of certain
175 mitigation funds held for the benefit of a water
176 management district if a project is excluded from a
177 mitigation plan; requiring water management districts
178 to use private mitigation banks in developing plans
179 for complying with mitigation requirements; providing
180 an exception; revising the procedure for excluding a
181 project from a mitigation plan; providing for future
182 effect of specified provisions within the territory of
183 the Northwest Florida Water Management District;
184 providing an effective date.