April 02, 2020
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HB 1175

A bill to be entitled
2An act relating to management and storage of surface
3waters; amending s. 373.4135, F.S.; revising legislative
4intent relating to certain rules of the Department of
5Environmental Protection and water management districts
6relating to mitigation banks and offsite regional
7mitigation; amending s. 373.414, F.S.; revising criteria
8for issuing permits for projects affecting surface waters
9and wetlands; requiring the department to provide training
10and guidance for applying the uniform mitigation
11assessment method; requiring the department to provide a
12formal determination process by rule to assess property
13for the establishment of proposed mitigation banks;
14providing procedures and requirements; authorizing water
15management districts to take action on petitions for such
16determinations; providing a fee; providing for revocation;
17providing for final agency action and application of ch.
18120, F.S.; providing for application of specified permit
19processing requirements; authorizing formal determinations
20to be petitioned in conjunction with other determinations;
21providing an effective date.
23Be It Enacted by the Legislature of the State of Florida:
25     Section 1.  Paragraph (b) of subsection (1) of section
26373.4135, Florida Statutes, is amended to read:
27     373.4135  Mitigation banks and offsite regional
29     (1)  The Legislature finds that the adverse impacts of
30activities regulated under this part may be offset by the
31creation, maintenance, and use of mitigation banks and offsite
32regional mitigation. Mitigation banks and offsite regional
33mitigation can enhance the certainty of mitigation and provide
34ecological value due to the improved likelihood of environmental
35success associated with their proper construction, maintenance,
36and management. Therefore, the department and the water
37management districts are directed to participate in and
38encourage the establishment of private and public mitigation
39banks and offsite regional mitigation. Mitigation banks and
40offsite regional mitigation should emphasize the restoration and
41enhancement of degraded ecosystems and the preservation of
42uplands and wetlands as intact ecosystems rather than alteration
43of landscapes to create wetlands. This is best accomplished
44through restoration of ecological communities that were
45historically present.
46     (b)  It is the further intent of the Legislature that
47mitigation banks and offsite regional mitigation be considered
48appropriate and a permittable mitigation option under the
49conditions specified by the rules of the department and water
50management districts and that such rules shall include a
51preference for the use of mitigation banks consistent with the
52provisions of 33 C.F.R. s. 332.3(b)(2).
53     Section 2.  Subsection (18) of section 373.414, Florida
54Statutes, is amended to read:
55     373.414  Additional criteria for activities in surface
56waters and wetlands.-
57     (18)  The department and each water management district
58responsible for implementation of the environmental resource
59permitting program shall develop a uniform mitigation assessment
60method for wetlands and other surface waters. The department
61shall adopt the uniform mitigation assessment method by rule no
62later than July 31, 2002. The rule shall provide an exclusive
63and consistent process for determining the amount of mitigation
64required to offset impacts to wetlands and other surface waters,
65and, once effective, shall supersede all rules, ordinances, and
66variance procedures from ordinances that determine the amount of
67mitigation needed to offset such impacts. Once the department
68adopts the uniform mitigation assessment method by rule, the
69uniform mitigation assessment method shall be binding on the
70department, the water management districts, local governments,
71and any other governmental agencies and shall be the sole means
72to determine the amount of mitigation needed to offset adverse
73impacts to wetlands and other surface waters and to award and
74deduct mitigation bank credits. A water management district and
75any other governmental agency subject to chapter 120 may apply
76the uniform mitigation assessment method without the need to
77adopt it pursuant to s. 120.54. It shall be a goal of the
78department and water management districts that the uniform
79mitigation assessment method developed be practicable for use
80within the timeframes provided in the permitting process and
81result in a consistent process for determining mitigation
82requirements. It shall be recognized that any such method shall
83require the application of reasonable scientific judgment. The
84uniform mitigation assessment method must determine the value of
85functions provided by wetlands and other surface waters
86considering the current conditions of these areas, utilization
87by fish and wildlife, location, uniqueness, and hydrologic
88connection, and, when applied to mitigation banks, the factors
89listed in s. 373.4136(4). The uniform mitigation assessment
90method shall also account for the expected time-lag associated
91with offsetting impacts and the degree of risk associated with
92the proposed mitigation. The uniform mitigation assessment
93method shall account for different ecological communities in
94different areas of the state. In developing the uniform
95mitigation assessment method, the department and water
96management districts shall consult with approved local programs
97under s. 403.182 which have an established mitigation program
98for wetlands or other surface waters. The department and water
99management districts shall consider the recommendations
100submitted by such approved local programs, including any
101recommendations relating to the adoption by the department and
102water management districts of any uniform mitigation methodology
103that has been adopted and used by an approved local program in
104its established mitigation program for wetlands or other surface
105waters. Environmental resource permitting rules may establish
106categories of permits or thresholds for minor impacts under
107which the use of the uniform mitigation assessment method will
108not be required. The application of the uniform mitigation
109assessment method is not subject to s. 70.001. In the event the
110rule establishing the uniform mitigation assessment method is
111deemed to be invalid, the applicable rules related to
112establishing needed mitigation in existence prior to the
113adoption of the uniform mitigation assessment method, including
114those adopted by a county which is an approved local program
115under s. 403.182, and the method described in paragraph (b) for
116existing mitigation banks, shall be authorized for use by the
117department, water management districts, local governments, and
118other state agencies. The department shall provide training and
119guidance for the application of the uniform mitigation
120assessment method and shall be available to address questions
121regarding such application.
122     (a)  In developing the uniform mitigation assessment
123method, the department shall seek input from the United States
124Army Corps of Engineers in order to promote consistency in the
125mitigation assessment methods used by the state and federal
126permitting programs.
127     (b)  An entity which has received a mitigation bank permit
128prior to the adoption of the uniform mitigation assessment
129method shall have impact sites assessed, for the purpose of
130deducting bank credits, using the credit assessment method,
131including any functional assessment methodology, which was in
132place when the bank was permitted; unless the entity elects to
133have its credits redetermined, and thereafter have its credits
134deducted, using the uniform mitigation assessment method.
135     (c)  The department shall provide a formal determination
136process by rule to assess a parcel of land pursuant to the
137uniform mitigation assessment method for potential establishment
138of a mitigation bank. The rule shall specify the information
139that must be provided and may require authorization to enter
140upon the property. The rule shall also establish procedures for
141applying for, processing, and issuing a formal determination.
142Once the department has adopted the rule, a water management
143district may receive and take final agency action on petitions
144for such determinations without the need to adopt the rule
145pursuant to s. 120.54. By interagency agreement, the department
146and each water management district shall determine which agency
147shall implement the determination process within the district.
148Upon adoption of the rule, any person with the written consent
149of the property owner, an entity that has the power of eminent
150domain, or any other person who has legal or equitable interest
151in the property may petition the district for a formal
152determination. If a petitioner does not provide information
153regarding potential impacts or mitigation activities for the
154property, the water management district or the department shall
155only assess the current condition of the property or the
156condition of the property without the proposed mitigation. A
157water management district may authorize its executive director
158to issue formal determinations. The water management district or
159the department may establish by rule a fee to cover the costs of
160processing and acting upon the petition. A water management
161district or the department may publish, or require the
162petitioner to publish at the petitioner's expense, notice of the
163intended agency action on a petition for a formal determination
164in a newspaper of general circulation within the affected area.
165     1.  A formal determination for an assessment of the current
166condition of a property or the condition of the property without
167the proposed mitigation is binding for a period not to exceed 5
168years as long as physical conditions on the property do not
169change, other than changes that have been authorized by a permit
170pursuant to this part, so as to alter the ecological conditions
171of the uplands, wetlands, or other surface waters assessed
172pursuant to this paragraph. A formal determination for an
173assessment of the condition of a property with the proposed
174mitigation is binding for a period not to exceed 5 years as long
175as the mitigation has not changed.
176     2.  Within 60 days prior to the expiration of a formal
177determination, the holder of the determination, with the written
178consent of the property owner, an entity that has the power of
179eminent domain, or any other person who has legal or equitable
180interest in the property, may petition for a new formal
181determination for the same parcel of property. Such
182determination approving the same uniform mitigation assessment
183in the previous formal determination shall be issued as long as
184physical conditions on the property have not changed, other than
185changes that have been authorized by a permit pursuant to this
186part, so as to alter the ecological conditions of the uplands,
187wetlands, or other surface waters and the uniform mitigation
188assessment methodology authorized by this subsection has not
189been amended since the previous formal determination or the
190proposed impacts or mitigation for the assessed property have
191not changed. The holder of a determination may also apply to
192modify the determination to reflect changed physical conditions
193on the property or new or modified proposed impacts or
194mitigation. The application fee for such a subsequent petition
195shall be less than the application fee for the original
197     3.  A water management district or the department may
198revoke a formal determination if it finds that the petitioner
199has submitted inaccurate information.
200     4.  A formal determination obtained under this paragraph is
201final agency action and is in lieu of a declaratory statement of
202jurisdiction obtainable under s. 120.565. Sections 120.569,
203120.57, and 373.4141 apply to formal determinations under this
205     5.  A formal determination of the extent of surface waters
206and wetlands pursuant to s. 373.421 may be petitioned in
207conjunction with a formal determination under this paragraph.
208     Section 3.  This act shall take effect July 1, 2010.

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