December 05, 2020
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Senate Bill 0718

Senate Bill sb0718

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    Florida Senate - 2005                                   SB 718

    By Senator Sebesta





    16-531-05

  1                      A bill to be entitled

  2         An act relating to the Department of

  3         Transportation; amending s. 337.251, F.S.;

  4         authorizing the department to adopt rules

  5         governing the leasing of property for joint

  6         public-private development; amending s. 339.55,

  7         F.S.; establishing a maximum limit on

  8         state-funded infrastructure bank loans to the

  9         State Transportation Trust Fund; amending s.

10         373.4137, F.S.; revising the requirements for

11         projects intended to mitigate the adverse

12         effects of transportation projects; removing

13         the Department of Environmental Protection from

14         the mitigation process; revising requirements

15         for the Department of Transportation and the

16         transportation authorities with respect to

17         submitting plans and inventories; authorizing

18         the use of current-year funds for future

19         projects; revising the requirements for

20         reconciling escrow accounts used to fund

21         mitigation projects; authorizing payments to a

22         water management district to fund the costs of

23         future maintenance and monitoring; requiring

24         specified lump-sum payments to be used for the

25         mitigation costs of certain projects;

26         authorizing a governing board of a water

27         management district to approve the use of

28         mitigation funds for certain future projects;

29         requiring that mitigation plans be approved by

30         the water management district rather than the

31  

                                  1

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1         Department of Environmental Protection;

 2         providing an effective date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Subsection (10) is added to section

 7  337.251, Florida Statutes, to read:

 8         337.251  Lease of property for joint public-private

 9  development and areas above or below department property.--

10         (10)  The department may adopt rules to administer the

11  provisions of this section.

12         Section 2.  Subsection (2) of section 339.55, Florida

13  Statutes, is amended to read:

14         339.55  State-funded infrastructure bank.--

15         (2)  The bank may lend capital costs or provide credit

16  enhancements for a transportation facility project that is on

17  the State Highway System or that provides for increased

18  mobility on the state's transportation system or provides

19  intermodal connectivity with airports, seaports, rail

20  facilities, and other transportation terminals, pursuant to s.

21  341.053, for the movement of people and goods. Loans from the

22  bank may be subordinated to senior project debt that has an

23  investment grade rating of "BBB" or higher. Notwithstanding

24  any other provision of law, the total outstanding state-funded

25  infrastructure bank loan repayments over the average term of

26  the loan repayment period, as needed to meet the requirements

27  of the documents authorizing the bonds issued or proposed to

28  be issued under s. 215.617 to be paid from the State

29  Transportation Trust Fund, may not exceed 0.75 percent of the

30  revenues deposited into the State Transportation Trust Fund.

31  

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1         Section 3.  Section 373.4137, Florida Statutes, is

 2  amended to read:

 3         373.4137  Mitigation requirements for specified

 4  transportation projects.--

 5         (1)  The Legislature finds that environmental

 6  mitigation for the impact of transportation projects proposed

 7  by the Department of Transportation or a transportation

 8  authority established pursuant to chapter 348 or chapter 349

 9  can be more effectively achieved by regional, long-range

10  mitigation planning rather than on a project-by-project basis.

11  It is the intent of the Legislature that mitigation to offset

12  the adverse effects of these transportation projects be funded

13  by the Department of Transportation and be carried out by the

14  Department of Environmental Protection and the water

15  management districts, including the use of mitigation banks

16  established pursuant to this part.

17         (2)  Environmental impact inventories for

18  transportation projects proposed by the Department of

19  Transportation or a transportation authority established

20  pursuant to chapter 348 or chapter 349 shall be developed as

21  follows:

22         (a)  By July May 1 of each year, the Department of

23  Transportation or a transportation authority established

24  pursuant to chapter 348 or chapter 349 shall submit to the

25  Department of Environmental Protection and the water

26  management districts a copy of its adopted work program and an

27  environmental impact inventory of habitats addressed in the

28  rules adopted tentatively, pursuant to this part and s. 404 of

29  the Clean Water Act, 33 U.S.C. s. 1344, which may be impacted

30  by its plan of construction for transportation projects in the

31  next 3 years of the tentative work program. The Department of

                                  3

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  Transportation or a transportation authority established

 2  pursuant to chapter 348 or chapter 349 may also include in its

 3  environmental impact inventory the habitat impacts of any

 4  future transportation project identified in the tentative work

 5  program. The Department of Transportation and each

 6  transportation authority established pursuant to chapter 348

 7  or chapter 349 may fund any mitigation activities for future

 8  projects using current year funds.

 9         (b)  The environmental impact inventory shall include a

10  description of these habitat impacts, including their

11  location, acreage, and type; state water quality

12  classification of impacted wetlands and other surface waters;

13  any other state or regional designations for these habitats;

14  and a survey of threatened species, endangered species, and

15  species of special concern affected by the proposed project.

16         (3)(a)  To fund development and implementation of the

17  mitigation plan for the projected impacts identified in the

18  environmental impact inventory described in subsection (2),

19  the Department of Transportation shall identify funds

20  quarterly in an escrow account within the State Transportation

21  Trust Fund for the environmental mitigation phase of projects

22  budgeted by the Department of Transportation for the current

23  fiscal year. The escrow account shall be maintained by the

24  Department of Transportation for the benefit of the Department

25  of Environmental Protection and the water management

26  districts. Any interest earnings from the escrow account shall

27  remain with the Department of Transportation.

28         (b)  Each transportation authority established pursuant

29  to chapter 348 or chapter 349 that chooses to participate in

30  this program shall create an escrow account within its

31  financial structure and deposit funds in the account to pay

                                  4

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  for the environmental mitigation phase of projects budgeted

 2  for the current fiscal year. The escrow account shall be

 3  maintained by the authority for the benefit of the Department

 4  of Environmental Protection and the water management

 5  districts. Any interest earnings from the escrow account shall

 6  remain with the authority.

 7         (c)  Except for current mitigation projects in the

 8  monitoring and maintenance phase and except as allowed by

 9  paragraph (d), the Department of Environmental Protection or

10  water management districts may request a transfer of funds

11  from an escrow account no sooner than 30 days prior to the

12  date the funds are needed to pay for activities associated

13  with development or implementation of the approved mitigation

14  plan described in subsection (4) for the current fiscal year,

15  including, but not limited to, design, engineering,

16  production, and staff support. Actual conceptual plan

17  preparation costs incurred before plan approval may be

18  submitted to the Department of Transportation or the

19  appropriate transportation authority and the Department of

20  Environmental Protection by November 1 of each year with the

21  plan. The conceptual plan preparation costs of each water

22  management district will be paid from mitigation funds

23  associated with the environmental impact inventory for the

24  current year based on the amount approved on the mitigation

25  plan and allocated to the current fiscal year projects

26  identified by the water management district. The amount

27  transferred to the escrow accounts each year by the Department

28  of Transportation and participating transportation authorities

29  established pursuant to chapter 348 or chapter 349 shall

30  correspond to a cost per acre of $75,000 multiplied by the

31  projected acres of impact identified in the environmental

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  impact inventory described in subsection (2). However, the

 2  $75,000 cost per acre does not constitute an admission against

 3  interest by the state or its subdivisions nor is the cost

 4  admissible as evidence of full compensation for any property

 5  acquired by eminent domain or through inverse condemnation.

 6  Each July 1, the cost per acre shall be adjusted by the

 7  percentage change in the average of the Consumer Price Index

 8  issued by the United States Department of Labor for the most

 9  recent 12-month period ending September 30, compared to the

10  base year average, which is the average for the 12-month

11  period ending September 30, 1996. Each quarter At the end of

12  each year, the projected acreage of impact shall be reconciled

13  with the acreage of impact of projects as permitted, including

14  permit modifications, pursuant to this part and s. 404 of the

15  Clean Water Act, 33 U.S.C. s. 1344. The subject year's

16  transfer of funds shall be adjusted accordingly to reflect the

17  acreage of impacts as permitted overtransfer or undertransfer

18  of funds from the preceding year. The Department of

19  Transportation and participating transportation authorities

20  established pursuant to chapter 348 or chapter 349 are

21  authorized to transfer such funds from the escrow accounts to

22  the Department of Environmental Protection and the water

23  management districts to carry out the mitigation programs. For

24  a mitigation project that is in the maintenance and monitoring

25  phase, the water management district may request and receive a

26  one-time payment based on the project's expected future

27  maintenance and monitoring costs. Upon disbursement of the

28  final maintenance and monitoring payment, the escrow account

29  for the project established by the Department of

30  Transportation or the participating transportation authority

31  may be closed. Any interest earned on these disbursed funds

                                  6

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  shall remain with the water management district and must be

 2  used as authorized under paragraph (4)(c).

 3         (d)  Beginning in the 2005-2006 fiscal year, each water

 4  management district shall be paid a lump-sum amount of $75,000

 5  per acre, adjusted as provided under paragraph (c), for

 6  federally funded transportation projects that are included on

 7  the environmental impact inventory and that have an approved

 8  mitigation plan. Beginning in the 2009-2010 fiscal year, each

 9  water management district shall be paid a lump-sum amount of

10  $75,000 per acre, adjusted as provided under paragraph (c),

11  for federally funded and nonfederally funded transportation

12  projects that have an approved mitigation plan. All mitigation

13  costs, including, but not limited to, the costs of preparing

14  conceptual plans and the costs of design, construction, staff

15  support, future maintenance, and monitoring the mitigated

16  acres shall be funded through these lump-sum amounts.

17         (4)  Prior to March December 1 of each year, each water

18  management district, in consultation with the Department of

19  Environmental Protection, the United States Army Corps of

20  Engineers, the Department of Transportation, transportation

21  authorities established pursuant to chapter 348 or chapter

22  349, and other appropriate federal, state, and local

23  governments, and other interested parties, including entities

24  operating mitigation banks, shall develop a plan for the

25  primary purpose of complying with the mitigation requirements

26  adopted pursuant to this part and 33 U.S.C. s. 1344. This plan

27  shall also address significant invasive plant problems within

28  wetlands and other surface waters. In developing such plans,

29  the districts shall utilize sound ecosystem management

30  practices to address significant water resource needs and

31  shall focus on activities of the Department of Environmental

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  Protection and the water management districts, such as surface

 2  water improvement and management (SWIM) projects waterbodies

 3  and lands identified for potential acquisition for

 4  preservation, restoration or, and enhancement, and the control

 5  of invasive and exotic plants in wetlands and other surface

 6  waters, to the extent that such activities comply with the

 7  mitigation requirements adopted under this part and 33 U.S.C.

 8  s. 1344. In determining the activities to be included in such

 9  plans, the districts shall also consider the purchase of

10  credits from public or private mitigation banks permitted

11  under s. 373.4136 and associated federal authorization and

12  shall include such purchase as a part of the mitigation plan

13  when such purchase would offset the impact of the

14  transportation project, provide equal benefits to the water

15  resources than other mitigation options being considered, and

16  provide the most cost-effective mitigation option. The

17  mitigation plan shall be submitted to preliminarily approved

18  by the water management district governing board, or its

19  designee, and shall be submitted to the secretary of the

20  Department of Environmental Protection for review and final

21  approval. The preliminary approval by the water management

22  district governing board does not constitute a decision that

23  affects substantial interests as provided by s. 120.569. At

24  least 14 30 days prior to preliminary approval, the water

25  management district shall provide a copy of the draft

26  mitigation plan to any person who has requested a copy.

27         (a)  For each transportation project with a funding

28  request for the next fiscal year, the mitigation plan must

29  include a brief explanation of why a mitigation bank was or

30  was not chosen as a mitigation option, including an estimation

31  

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  of identifiable costs of the mitigation bank and nonbank

 2  options to the extent practicable.

 3         (b)  Specific projects may be excluded from the

 4  mitigation plan, in whole or in part, and shall not be subject

 5  to this section upon the agreement of the Department of

 6  Transportation, or a transportation authority if applicable,

 7  the Department of Environmental Protection, and the

 8  appropriate water management district that the inclusion of

 9  such projects would hamper the efficiency or timeliness of the

10  mitigation planning and permitting process., or the Department

11  of Environmental Protection and The water management district

12  may choose to exclude a project in whole or in part if the

13  district is are unable to identify mitigation that would

14  offset the impacts of the project.

15         (c)  Surface water improvement and management or

16  invasive plant control projects undertaken using the $12

17  million advance transferred from the Department of

18  Transportation to the Department of Environmental Protection

19  in fiscal year 1996-1997 which meet the requirements for

20  mitigation under this part and 33 U.S.C. s. 1344 shall remain

21  available for mitigation until the $12 million is fully

22  credited up to and including fiscal year 2005-2006. When these

23  projects are used as mitigation, the $12 million advance shall

24  be reduced by $75,000 per acre of impact mitigated. For any

25  fiscal year through and including fiscal year 2005-2006, To

26  the extent the cost of developing and implementing the

27  mitigation plans is less than the funds placed in the escrow

28  account amount transferred pursuant to subsection (3), the

29  difference shall be retained by the Department of

30  Transportation and credited towards the $12 million advance

31  until the Department of Transportation is fully refunded for

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  this advance funding. After the $12 million advance funding is

 2  fully credited Except as provided in this paragraph, any funds

 3  not directed to implement the mitigation plan should, to the

 4  greatest extent possible, be directed to fund invasive plant

 5  control within wetlands and other surface waters, SWIM

 6  projects, or other water-resource projects approved by the

 7  governing board of the water management district which may be

 8  appropriate to offset environmental impacts of future

 9  transportation projects. The water management districts may

10  request these funds upon submittal of the final invoice for

11  each road project.

12         (5)  The water management district shall be responsible

13  for ensuring that mitigation requirements pursuant to 33

14  U.S.C. s. 1344 are met for the impacts identified in the

15  environmental impact inventory described in subsection (2), by

16  implementation of the approved plan described in subsection

17  (4) to the extent funding is provided by the Department of

18  Transportation, or a transportation authority established

19  pursuant to chapter 348 or chapter 349, if applicable. During

20  the federal permitting process, the water management district

21  may deviate from the approved mitigation plan in order to

22  comply with federal permitting requirements.

23         (6)  The mitigation plans shall be updated annually to

24  reflect the most current Department of Transportation work

25  program and project list of a transportation authority

26  established pursuant to chapter 348 or chapter 349, if

27  applicable, and may be amended throughout the year to

28  anticipate schedule changes or additional projects which may

29  arise. Each update and amendment of the mitigation plan shall

30  be submitted to the governing board of the water management

31  district or its designee secretary of the Department of

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  Environmental Protection for approval. However, such approval

 2  shall not be applicable to a deviation as described in

 3  subsection (5).

 4         (7)  Upon approval by the governing board of the water

 5  management district or its designee secretary of the

 6  Department of Environmental Protection, the mitigation plan

 7  shall be deemed to satisfy the mitigation requirements under

 8  this part for impacts specifically identified in the

 9  environmental impact inventory described in subsection (2) and

10  any other mitigation requirements imposed by local, regional,

11  and state agencies for these same impacts identified in the

12  inventory described in subsection (2). The approval of the

13  governing board of the water management district or its

14  designee secretary shall authorize the activities proposed in

15  the mitigation plan, and no other state, regional, or local

16  permit or approval shall be necessary.

17         (8)  This section shall not be construed to eliminate

18  the need for the Department of Transportation or a

19  transportation authority established pursuant to chapter 348

20  or chapter 349 to comply with the requirement to implement

21  practicable design modifications, including realignment of

22  transportation projects, to reduce or eliminate the impacts of

23  its transportation projects on wetlands and other surface

24  waters as required by rules adopted pursuant to this part, or

25  to diminish the authority under this part to regulate other

26  impacts, including water quantity or water quality impacts, or

27  impacts regulated under this part that are not identified in

28  the environmental impact inventory described in subsection

29  (2).

30         (9)  The process for environmental mitigation for the

31  impact of transportation projects under this section shall be

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    Florida Senate - 2005                                   SB 718
    16-531-05




 1  available to an expressway, bridge, or transportation

 2  authority established under chapter 348 or chapter 349. Use of

 3  this process may be initiated by an authority depositing the

 4  requisite funds into an escrow account set up by the authority

 5  and filing an environmental impact inventory with the

 6  appropriate water management district. An authority that

 7  initiates the environmental mitigation process established by

 8  this section shall comply with subsection (6) by timely

 9  providing the appropriate water management district and the

10  Department of Environmental Protection with the requisite work

11  program information. A water management district may draw down

12  funds from the escrow account as provided in this section.

13         Section 4.  This act shall take effect July 1, 2005.

14  

15            *****************************************

16                          SENATE SUMMARY

17    Provides for the Department of Transportation to adopt
      rules for leasing property for public-private
18    development. Limits certain state-funded infrastructure
      bank loans to the State Transportation Trust Fund.
19    Revises various requirements for projects intended to
      mitigate the adverse effects of transportation projects.
20    Removes the Department of Environmental Protection from
      the mitigation process and requires plans to be approved
21    by the water management districts. Revises requirements
      for the escrow accounts used to fund mitigation projects.
22    (See bill for details.)

23  

24  

25  

26  

27  

28  

29  

30  

31  

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