The Florida Senate

373.4137  Mitigation requirements.--

(1)  The Legislature finds that environmental mitigation for the impact of transportation projects proposed by the Department of Transportation can be more effectively achieved by regional, long-range mitigation planning rather than on a project-by-project basis. It is the intent of the Legislature that mitigation to offset the adverse effects of these transportation projects be funded by the Department of Transportation and be carried out by the Department of Environmental Protection and the water management districts, including the use of mitigation banks established pursuant to this part.

(2)  Environmental impact inventories for transportation projects proposed by the Department of Transportation shall be developed as follows:

(a)  Beginning July 1996, the Department of Transportation shall submit annually to the Department of Environmental Protection and the water management districts a copy of its adopted work program and an inventory of habitats addressed in the rules adopted pursuant to this part and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344, which may be impacted by its plan of construction for transportation projects in the first 3 years of the adopted work program. For the July 1996 submittal, the inventory may exclude those projects which have received permits pursuant to this part and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344, projects for which mitigation planning or design has commenced, or projects for which mitigation has been implemented in anticipation of future permitting needs.

(b)  The environmental impact inventory shall include a description of these habitat impacts, including their location, acreage, and type; state water quality classification of impacted wetlands and other surface waters; any other state or regional designations for these habitats; and a survey of threatened species, endangered species, and species of special concern affected by the proposed project.

(3)  To fund the mitigation plan for the projected impacts identified in the inventory described in subsection (2), beginning July 1, 1997, the Department of Transportation shall identify funds quarterly in an escrow account within the State Transportation Trust Fund established by the Department of Transportation for the benefit of the Department of Environmental Protection. Any interest earnings from the escrow account shall be returned to the Department of Transportation. The Department of Environmental Protection shall request a transfer of funds from the escrow account to the Ecosystem Management and Restoration Trust Fund no sooner than 30 days prior to the date the funds are needed to pay for activities contained in the mitigation programs. The amount transferred each year by the Department of Transportation shall correspond to a cost per acre of $75,000 multiplied by the projected acres of impact identified in the inventory described in subsection (2) within the water management district for that year. The water management district may draw from the trust fund no sooner than 30 days prior to the date funds are needed to pay for activities associated with development or implementation of the mitigation plan described in subsection (4). Each July 1, beginning in 1998, the cost per acre shall be adjusted by the percentage change in the average of the Consumer Price Index issued by the United States Department of Labor for the most recent 12-month period ending September 30, compared to the base year average, which is the average for the 12-month period ending September 30, 1996. At the end of each year, the projected acreage of impact shall be reconciled with the acreage of impact of projects as permitted pursuant to this part and s. 404 of the Clean Water Act, 33 U.S.C. s. 1344, and the following year's transfer of funds shall be adjusted accordingly to reflect the overtransfer or undertransfer of funds from the preceding year. The Department of Environmental Protection is authorized to transfer such funds from the Ecosystem Management and Restoration Trust Fund to the water management districts to carry out the mitigation programs.

(4)  Prior to December 31, 1996, each water management district, in consultation with the Department of Environmental Protection, the United States Army Corps of Engineers, and other appropriate federal, state, and local governments, shall develop a plan for the primary purpose of complying with the mitigation requirements adopted pursuant to this part and 33 U.S.C. s. 1344. This plan shall also address significant aquatic and exotic plant problems within wetlands and other surface waters. In developing such plans, the districts shall utilize sound ecosystem management practices to address significant water resource needs. In determining the activities to be included in such plans, the districts shall also consider the purchase of credits from public or private mitigation banks permitted under this part and shall include such purchase as a part of the mitigation plan when such purchase would offset the impact of the transportation project, provide equal benefits to the water resources than other mitigation options being considered, and provide the most cost-effective mitigation option. The mitigation plan shall be preliminarily approved by the water management district governing board and shall be submitted to the secretary of the Department of Environmental Protection for review and final approval. At least 30 days prior to preliminary approval, the water management district shall provide a copy of the draft mitigation plan to any person who has requested a copy.

(a)  If the Department of Environmental Protection and water management districts are unable to identify mitigation that would offset the impacts of a project included in the inventory, either due to the nature of the impact or the amount of funds available, that project shall not be addressed in the mitigation plan and the project shall not be subject to the provisions of this section.

(b)  Specific projects may be excluded from the mitigation plan and shall not be subject to this section upon the agreement of the Department of Transportation, the Department of Environmental Protection, and the appropriate water management district that the inclusion of such projects would hamper the efficiency or timeliness of the mitigation planning and permitting process.

(c)  Those transportation projects that are proposed to commence in fiscal year 1996-1997 shall not be addressed in the mitigation plan, and the provisions of subsection (7) shall not apply to these projects. The Department of Transportation may enter into interagency agreements with the Department of Environmental Protection or any water management district to perform mitigation planning and implementation for these projects.

(d)  On July 1, 1996, the Department of Transportation shall transfer to the Department of Environmental Protection $12 million from the State Transportation Trust Fund for the purposes of the surface water improvement management program and to address statewide aquatic and exotic plant problems within wetlands and other surface waters. Such funds shall be considered an advance upon funds that the Department of Transportation would provide for statewide mitigation during the 1997-1998, 1998-1999, and 1999-2000 fiscal years. This use of mitigation funds for surface water improvement management projects or aquatic and exotic plant control may be utilized as mitigation for transportation projects to the extent that it complies with the mitigation requirements adopted pursuant to this part and 33 U.S.C. s. 1344. To the extent that such activities result in mitigation credit for projects permitted in fiscal year 1996-1997, all or part of the $12 million funding for surface water improvement management projects or aquatic and exotic plant control in fiscal year 1996-1997 shall be drawn from Department of Transportation mitigation funding for fiscal year 1996-1997 rather than from mitigation funding for fiscal years 1997-1998, 1998-1999, and 1999-2000, in an amount equal to the cost per acre of impact described in subsection (3), times the acreage of impact that is mitigated by such plant control activities. Any part of the $12 million that does not result in mitigation credit for projects permitted in fiscal year 1996-1997 shall remain available for mitigation credit during fiscal years 1997-1998, 1998-1999, or 1999-2000.

(5)  The water management district shall be responsible for ensuring that mitigation requirements pursuant to 33 U.S.C. s. 1344 are met for the impacts identified in the inventory described in subsection (2), by implementation of the approved plan described in subsection (4) as funded by the Department of Transportation. During the federal permitting process, the water management district may deviate from the approved mitigation plan in order to comply with federal permitting requirements.

(6)  The mitigation plan shall be updated annually to reflect the most current Department of Transportation work program. Each update of the mitigation plan shall be submitted to the secretary of the Department of Environmental Protection for approval as described in subsection (4). However, such approval shall not be applicable to a deviation as described in subsection (5).

(7)  Upon approval by the secretary of the Department of Environmental Protection, the mitigation plan shall be deemed to satisfy the mitigation requirements under this part and any other mitigation requirements imposed by local, regional, and state agencies for impacts identified in the inventory described in subsection (2). The approval of the secretary shall authorize the activities proposed in the mitigation plan, and no other state, regional, or local permit or approval shall be necessary.

(8)  This section shall not be construed to eliminate the need for the Department of Transportation to comply with the requirement to implement practicable design modifications, including realignment of transportation projects, to reduce or eliminate the impacts of its transportation projects on wetlands and other surface waters as required by rules adopted pursuant to this part, or to diminish the authority under this part to regulate other impacts, including water quantity or water quality impacts, or impacts regulated under this part that are not identified in the inventory described in subsection (2).

(9)  The recommended mitigation plan shall be annually submitted to the Executive Office of the Governor and the Legislature through the legislative budget request of the Department of Environmental Protection in accordance with chapter 216. Any funds not directed to implement the mitigation plan should, to the greatest extent possible, be directed to fund aquatic and exotic plant problems within the wetlands and other surface waters.

(10)  By December 1, 1997, the Department of Environmental Protection, in consultation with the water management districts, shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives describing the implementation of this section, including the use of public and private mitigation banks and other types of mitigation approved in the mitigation plan. The report shall also recommend any amendments to this section necessary to improve the process for developing and implementing mitigation plans for the Department of Transportation. The report shall also include a specific section on how private and public mitigation banks are utilized within the mitigation plans.

History.--s. 1, ch. 96-238.