Bill Text: FL S0824 | 2012 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Mitigation

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2012-03-09 - Laid on Table, refer to CS/CS/CS/HB 599 -SJ 1248 [S0824 Detail]

Download: Florida-2012-S0824-Comm_Sub.html

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       Florida Senate - 2012                              CS for SB 824
       
       
       
       By the Committee on Transportation; and Senators Dean and Gaetz
       
       
       
       
       596-02035-12                                           2012824c1
    1                        A bill to be entitled                      
    2         An act relating to mitigation; amending s. 373.4137,
    3         F.S.; revising legislative intent to encourage the use
    4         of other mitigation options that satisfy state and
    5         federal requirements; providing the Department of
    6         Transportation or a transportation authority the
    7         option of participating in a mitigation project;
    8         requiring the Department of Transportation or a
    9         transportation authority to submit lists of its
   10         projects in the adopted work program to the water
   11         management districts; requiring a list rather than a
   12         survey of threatened or endangered species and species
   13         of special concern affected by a proposed project;
   14         providing conditions for the release of certain
   15         environmental mitigation funds; prohibiting a
   16         mitigation plan from being implemented unless the plan
   17         is submitted to and approved by the Department of
   18         Environmental Protection; providing additional factors
   19         that must be explained regarding the choice of
   20         mitigation bank; removing a provision requiring an
   21         explanation for excluding certain projects from the
   22         mitigation plan; providing criteria that the
   23         Department of Transportation must use in determining
   24         which projects to include or exclude in the mitigation
   25         plan; amending s. 373.4135, F.S.; limiting the
   26         circumstances under which a governmental entity may
   27         create or provide mitigation for a project other than
   28         its own project; specifying certain exceptions;
   29         providing an effective date.
   30  
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Subsections (1) and (2), paragraph (c) of
   34  subsection (3), and subsections (4) and (5) of section 373.4137,
   35  Florida Statutes, are amended to read:
   36         373.4137 Mitigation requirements for specified
   37  transportation projects.—
   38         (1) The Legislature finds that environmental mitigation for
   39  the impact of transportation projects proposed by the Department
   40  of Transportation or a transportation authority established
   41  pursuant to chapter 348 or chapter 349 can be more effectively
   42  achieved by regional, long-range mitigation planning rather than
   43  on a project-by-project basis. It is the intent of the
   44  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         Section 2. Present paragraphs (b) through (e) of subsection
  218  (1) of section 373.4135, Florida Statutes, are redesignated as
  219  paragraphs (c) through (f), respectively, and a new paragraph
  220  (b) is added to that subsection, to read:
  221         373.4135 Mitigation banks and offsite regional mitigation.—
  222         (1) The Legislature finds that the adverse impacts of
  223  activities regulated under this part may be offset by the
  224  creation, maintenance, and use of mitigation banks and offsite
  225  regional mitigation. Mitigation banks and offsite regional
  226  mitigation can enhance the certainty of mitigation and provide
  227  ecological value due to the improved likelihood of environmental
  228  success associated with their proper construction, maintenance,
  229  and management. Therefore, the department and the water
  230  management districts are directed to participate in and
  231  encourage the establishment of private and public mitigation
  232  banks and offsite regional mitigation. Mitigation banks and
  233  offsite regional mitigation should emphasize the restoration and
  234  enhancement of degraded ecosystems and the preservation of
  235  uplands and wetlands as intact ecosystems rather than alteration
  236  of landscapes to create wetlands. This is best accomplished
  237  through restoration of ecological communities that were
  238  historically present.
  239         (b) Notwithstanding subsection (5), a governmental entity
  240  may not create or provide mitigation for a project other than
  241  its own unless the governmental entity uses land that was not
  242  previously purchased for conservation and unless the
  243  governmental entity provides the same financial assurances as
  244  required for mitigation banks permitted under s. 373.4136 and
  245  regional offsite mitigation areas permitted under subsection
  246  (6). This paragraph does not apply to:
  247         1. Mitigation banks permitted before December 31, 2011,
  248  under s. 373.4136;
  249         2. Offsite regional mitigation areas established before
  250  December 31, 2011, under subsection (6);
  251         3. Mitigation for transportation projects under ss.
  252  373.4137 and 373.4139;
  253         4. Mitigation for impacts from mining activities under s.
  254  373.41492; or
  255         5. Mitigation provided for single-family lots or homeowners
  256  under subsection (6).
  257         Section 3. This act shall take effect upon becoming a law.