HB 599

1	A bill to be entitled
2	An act relating to mitigation requirements for
3	transportation projects; amending s. 373.4137, F.S.;
4	revising legislative intent to encourage the use of
5	other mitigation options that satisfy state and
6	federal requirements; providing the Department of
7	Transportation or a transportation authority the
8	option of participating in a mitigation project;
9	requiring the Department of Transportation or a
10	transportation authority to submit lists of its
11	projects in the adopted work program to the water
12	management districts; requiring a list rather than a
13	survey of threatened or endangered species and species
14	of special concern affected by a proposed project;
15	providing conditions for the release of certain
16	environmental mitigation funds; prohibiting a
17	mitigation plan from being implemented unless the plan
18	is submitted to and approved by the Department of
19	Environmental Protection; providing additional factors
20	that must be explained regarding the choice of
21	mitigation bank; removing a provision requiring an
22	explanation for excluding certain projects from the
23	mitigation plan; providing criteria that the
24	Department of Transportation must use in determining
25	which projects to include or exclude in the mitigation
26	plan; prohibiting a governmental entity from providing
27	or creating mitigation except under specified
28	circumstances; providing an effective date.
29
30	Be It Enacted by the Legislature of the State of Florida:
31
32	Section 1.  Subsections (1) and (2), paragraph (c) of
33	subsection (3), and subsections (4) and (5) of section 373.4137,
34	Florida Statutes, are amended, and subsection (10) is added to
35	that section, to read:
36	373.4137  Mitigation requirements for specified
37	transportation projects.-
38	(1)  The Legislature finds that environmental mitigation
39	for the impact of transportation projects proposed by the
40	Department of Transportation or a transportation authority
41	established pursuant to chapter 348 or chapter 349 can be more
42	effectively achieved by regional, long-range mitigation planning
43	rather than on a project-by-project basis. It is the intent of
44	the Legislature that mitigation to offset the adverse effects of
45	these transportation projects be funded by the Department of
46	Transportation and be carried out by the water management
47	districts, including the use of mitigation banks and any other
48	mitigation options that satisfy state and federal requirements
49	established pursuant to this part.
50	(2)  Environmental impact inventories for transportation
51	projects proposed by the Department of Transportation or a
52	transportation authority established pursuant to chapter 348 or
53	chapter 349 shall be developed as follows:
54	(a)  By July 1 of each year, the Department of
55	Transportation or a transportation authority established
56	pursuant to chapter 348 or chapter 349 which chooses to
57	participate in the program shall submit to the water management
58	districts a list copy of its projects in the adopted work
59	program and an environmental impact inventory of habitats
60	addressed in the rules adopted pursuant to this part and s. 404
61	of the Clean Water Act, 33 U.S.C. s. 1344, which may be impacted
62	by its plan of construction for transportation projects in the
63	next 3 years of the tentative work program. The Department of
64	Transportation or a transportation authority established
65	pursuant to chapter 348 or chapter 349 may also include in its
66	environmental impact inventory the habitat impacts of any future
67	transportation project. The Department of Transportation and
68	each transportation authority established pursuant to chapter
69	348 or chapter 349 may fund any mitigation activities for future
70	projects using current year funds.
71	(b)  The environmental impact inventory shall include a
72	description of these habitat impacts, including their location,
73	acreage, and type; state water quality classification of
74	impacted wetlands and other surface waters; any other state or
75	regional designations for these habitats; and a list survey of
76	threatened species, endangered species, and species of special
77	concern affected by the proposed project.
78	(3)
79	(c)  Except for current mitigation projects in the
80	monitoring and maintenance phase and except as allowed by
81	paragraph (d), the water management districts may request a
82	transfer of funds from an escrow account no sooner than 30 days
83	before prior to the date the funds are needed to pay for
84	activities associated with development or implementation of the
85	approved mitigation plan described in subsection (4) for the
86	current fiscal year, including, but not limited to, design,
87	engineering, production, and staff support. Actual conceptual
88	plan preparation costs incurred before plan approval may be
89	submitted to the Department of Transportation or the appropriate
90	transportation authority each year with the plan. The conceptual
91	plan preparation costs of each water management district will be
92	paid from mitigation funds associated with the environmental
93	impact inventory for the current year. The amount transferred to
94	the escrow accounts each year by the Department of
95	Transportation and participating transportation authorities
96	established pursuant to chapter 348 or chapter 349 shall
97	correspond to a cost per acre of $75,000 multiplied by the
98	projected acres of impact identified in the environmental impact
99	inventory described in subsection (2). However, the $75,000 cost
100	per acre does not constitute an admission against interest by
101	the state or its subdivisions and nor is not the cost admissible
102	as evidence of full compensation for any property acquired by
103	eminent domain or through inverse condemnation. Each July 1, the
104	cost per acre shall be adjusted by the percentage change in the
105	average of the Consumer Price Index issued by the United States
106	Department of Labor for the most recent 12-month period ending
107	September 30, compared to the base year average, which is the
108	average for the 12-month period ending September 30, 1996. Each
109	quarter, the projected acreage of impact shall be reconciled
110	with the acreage of impact of projects as permitted, including
111	permit modifications, pursuant to this part and s. 404 of the
112	Clean Water Act, 33 U.S.C. s. 1344. The subject year's transfer
113	of funds shall be adjusted accordingly to reflect the acreage of
114	impacts as permitted. The Department of Transportation and
115	participating transportation authorities established pursuant to
116	chapter 348 or chapter 349 are authorized to transfer such funds
117	from the escrow accounts to the water management districts to
118	carry out the mitigation programs. Environmental mitigation
119	funds that are identified for or maintained in an escrow account
120	for the benefit of a water management district may be released
121	if the associated transportation project is excluded in whole or
122	part from the mitigation plan. For a mitigation project that is
123	in the maintenance and monitoring phase, the water management
124	district may request and receive a one-time payment based on the
125	project's expected future maintenance and monitoring costs. Upon
126	disbursement of the final maintenance and monitoring payment,
127	the escrow account for the project established by the Department
128	of Transportation or the participating transportation authority
129	may be closed. Any interest earned on these disbursed funds
130	shall remain with the water management district and must be used
131	as authorized under this section.
132	(4)  Before Prior to March 1 of each year, each water
133	management district, in consultation with the Department of
134	Environmental Protection, the United States Army Corps of
135	Engineers, the Department of Transportation, participating
136	transportation authorities established pursuant to chapter 348
137	or chapter 349, and other appropriate federal, state, and local
138	governments, and other interested parties, including entities
139	operating mitigation banks, shall develop a plan for the primary
140	purpose of complying with the mitigation requirements adopted
141	pursuant to this part and 33 U.S.C. s. 1344. In developing such
142	plans, the districts shall use utilize sound ecosystem
143	management practices to address significant water resource needs
144	and shall focus on activities of the Department of Environmental
145	Protection and the water management districts, such as surface
146	water improvement and management (SWIM) projects and lands
147	identified for potential acquisition for preservation,
148	restoration, or enhancement, and the control of invasive and
149	exotic plants in wetlands and other surface waters, to the
150	extent that the such activities comply with the mitigation
151	requirements adopted under this part and 33 U.S.C. s. 1344. In
152	determining the activities to be included in the such plans, the
153	districts shall also consider the purchase of credits from
154	public or private mitigation banks permitted under s. 373.4136
155	and associated federal authorization and shall include the such
156	purchase as a part of the mitigation plan when the such purchase
157	would offset the impact of the transportation project, provide
158	equal benefits to the water resources than other mitigation
159	options being considered, and provide the most cost-effective
160	mitigation option. The mitigation plan shall be submitted to the
161	water management district governing board, or its designee, for
162	review and approval. At least 14 days before prior to approval,
163	the water management district shall provide a copy of the draft
164	mitigation plan to any person who has requested a copy. The plan
165	may not be implemented until it is submitted to and approved by
166	the Department of Environmental Protection.
167	(a)  For each transportation project with a funding request
168	for the next fiscal year, the mitigation plan must include a
169	brief explanation of why a mitigation bank was or was not chosen
170	as a mitigation option, including an estimation of identifiable
171	costs of the mitigation bank and nonbank options and other
172	factors such as time saved, liability for success of the
173	mitigation, and long-term maintenance to the extent practicable.
174	(b)  Specific projects may be excluded from the mitigation
175	plan, in whole or in part, and are shall not be subject to this
176	section upon the election agreement of the Department of
177	Transportation, or a transportation authority if applicable, or
178	and the appropriate water management district that the inclusion
179	of such projects would hamper the efficiency or timeliness of
180	the mitigation planning and permitting process. The water
181	management district may choose to exclude a project in whole or
182	in part if the district is unable to identify mitigation that
183	would offset impacts of the project.
184	(c)  When determining which projects to include or exclude
185	from the mitigation plan, the department shall investigate using
186	credits from a permitted private mitigation bank before those
187	projects are submitted to, or are allowed to remain in, the
188	plan.
189	1.  The investigation shall include the cost-effectiveness
190	of private mitigation bank credits.
191	2.  The cost-effectiveness analysis must be in writing and
192	consider:
193	a.  How the nominal cost of the private mitigation bank
194	credits compares with the nominal cost for any given project to
195	be included in the plan;
196	b.  The value of complying with federal transportation
197	policies for federal aid projects;
198	c.  The value that private mitigation bank credits provide
199	as the result of the expedited approvals by the Army Corps of
200	Engineers when private mitigation banks are used; and
201	d.  The value that private mitigation banks provide to the
202	state and its residents as a result of the state and federal
203	liability for the success of the mitigation transferring to the
204	private mitigation bank when credits are purchased from the
205	private mitigation bank.
206	(5)  The water management district shall ensure be
207	responsible for ensuring that mitigation requirements pursuant
208	to 33 U.S.C. s. 1344 are met for the impacts identified in the
209	environmental impact inventory described in subsection (2), by
210	implementation of the approved plan described in subsection (4)
211	to the extent funding is provided by the Department of
212	Transportation, or a transportation authority established
213	pursuant to chapter 348 or chapter 349, if applicable. During
214	the federal permitting process, the water management district
215	may deviate from the approved mitigation plan in order to comply
216	with federal permitting requirements.
217	(10)  Except when a governmental entity is part of the
218	program established by this section, a governmental entity may
219	not create or provide mitigation unless the mitigation is for
220	the governmental entity's own project, uses new land that has
221	not been previously purchased for conservation, does not compete
222	with any permitted, privately owned mitigation bank, and has all
223	of its current and future liabilities prefunded in a cash
224	account, or other equivalent financial instrument typically used
225	by private mitigation banks, and established solely for that
226	purpose.
227	Section 2.  This act shall take effect July 1, 2012.

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