December 05, 2020
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Senate Bill 0718

Senate Bill sb0718c1

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    Florida Senate - 2005                            CS for SB 718

    By the Committee on Transportation and Economic Development
    Appropriations; and Senator Sebesta




    606-2070-05

  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.

  7         337.406, F.S.; granting local governments

  8         authority to issue permits allowing limited

  9         temporary use of state transportation

10         right-of-way; clarifying limited access

11         facilities are not included in such authority;

12         amending s. 339.55, F.S.; establishing a

13         maximum limit on state-funded infrastructure

14         bank loans to the State Transportation Trust

15         Fund; amending s. 373.4137, F.S.; revising the

16         requirements for projects intended to mitigate

17         the adverse effects of transportation projects;

18         removing the Department of Environmental

19         Protection from the mitigation process;

20         revising requirements for the Department of

21         Transportation and the transportation

22         authorities with respect to submitting plans

23         and inventories; authorizing the use of

24         current-year funds for future projects;

25         revising the requirements for reconciling

26         escrow accounts used to fund mitigation

27         projects; authorizing payments to a water

28         management district to fund the costs of future

29         maintenance and monitoring; requiring specified

30         lump-sum payments to be used for the mitigation

31         costs of certain projects; authorizing a

                                  1

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1         governing board of a water management district

 2         to approve the use of mitigation funds for

 3         certain future projects; requiring that

 4         mitigation plans be approved by the water

 5         management district rather than the Department

 6         of Environmental Protection; providing an

 7         effective date.

 8  

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

10  

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

12  337.251, Florida Statutes, to read:

13         337.251  Lease of property for joint public-private

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

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

16  provisions of this section.

17         Section 2.  Subsection (1) of section 337.406, Florida

18  Statutes, is amended to read:

19         337.406  Unlawful use of state transportation facility

20  right-of-way; penalties.--

21         (1)  Except when leased as provided in s. 337.25(5) or

22  otherwise authorized by the rules of the department, it is

23  unlawful to make any use of the right-of-way of any state

24  transportation facility, including appendages thereto, outside

25  of an incorporated municipality in any manner that interferes

26  with the safe and efficient movement of people and property

27  from place to place on the transportation facility.  Failure

28  to prohibit the use of right-of-way in this manner will

29  endanger the health, safety, and general welfare of the public

30  by causing distractions to motorists, unsafe pedestrian

31  movement within travel lanes, sudden stoppage or slowdown of

                                  2

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1  traffic, rapid lane changing and other dangerous traffic

 2  movement, increased vehicular accidents, and motorist injuries

 3  and fatalities.  Such prohibited uses include, but are not

 4  limited to, the free distribution or sale, or display or

 5  solicitation for free distribution or sale, of any

 6  merchandise, goods, property or services; the solicitation for

 7  charitable purposes; the servicing or repairing of any

 8  vehicle, except the rendering of emergency service; the

 9  storage of vehicles being serviced or repaired on abutting

10  property or elsewhere; and the display of advertising of any

11  sort, except that any portion of a state transportation

12  facility may be used for an art festival, parade, fair, or

13  other special event if permitted by the appropriate local

14  governmental entity. Local government entities Within

15  incorporated municipalities, the local governmental entity may

16  issue permits of limited duration for the temporary use of the

17  right-of-way of a state transportation facility for any of

18  these prohibited uses if it is determined that the use will

19  not interfere with the safe and efficient movement of traffic

20  and the use will cause no danger to the public. The permitting

21  authority granted in this subsection shall be exercised by the

22  municipality within incorporated municipalities and by the

23  county outside an incorporated municipality. Before a road on

24  the State Highway System may be temporarily closed for a

25  special event, the local governmental entity which permits the

26  special event to take place must determine that the temporary

27  closure of the road is necessary and must obtain the prior

28  written approval for the temporary road closure from the

29  department. Nothing in this subsection shall be construed to

30  authorize such activities on any limited access highway the

31  Interstate Highway System. Local governmental entities may,

                                  3

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1  within their respective jurisdictions, initiate enforcement

 2  action by the appropriate code enforcement authority or law

 3  enforcement authority for a violation of this section.

 4         Section 3.  Subsection (2) of section 339.55, Florida

 5  Statutes, is amended to read:

 6         339.55  State-funded infrastructure bank.--

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

 8  enhancements for a transportation facility project that is on

 9  the State Highway System or that provides for increased

10  mobility on the state's transportation system or provides

11  intermodal connectivity with airports, seaports, rail

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

13  341.053, for the movement of people and goods. Loans from the

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

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

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

17  infrastructure bank loan repayments over the average term of

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

19  of the documents authorizing the bonds issued or proposed to

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

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

22  revenues deposited into the State Transportation Trust Fund.

23         Section 4.  Section 373.4137, Florida Statutes, is

24  amended to read:

25         373.4137  Mitigation requirements for specified

26  transportation projects.--

27         (1)  The Legislature finds that environmental

28  mitigation for the impact of transportation projects proposed

29  by the Department of Transportation or a transportation

30  authority established pursuant to chapter 348 or chapter 349

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

                                  4

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




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

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

 3  the adverse effects of these transportation projects be funded

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

 5  Department of Environmental Protection and the water

 6  management districts, including the use of mitigation banks

 7  established pursuant to this part.

 8         (2)  Environmental impact inventories for

 9  transportation projects proposed by the Department of

10  Transportation or a transportation authority established

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

12  follows:

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

14  Transportation or a transportation authority established

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

16  Department of Environmental Protection and the water

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

18  environmental impact inventory of habitats addressed in the

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

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

21  by its plan of construction for transportation projects in the

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

23  Transportation or a transportation authority established

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

25  environmental impact inventory the habitat impacts of any

26  future transportation project identified in the tentative work

27  program. The Department of Transportation and each

28  transportation authority established pursuant to chapter 348

29  or chapter 349 may fund any mitigation activities for future

30  projects using current year funds.

31  

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1         (b)  The environmental impact inventory shall include a

 2  description of these habitat impacts, including their

 3  location, acreage, and type; state water quality

 4  classification of impacted wetlands and other surface waters;

 5  any other state or regional designations for these habitats;

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

 7  species of special concern affected by the proposed project.

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

 9  mitigation plan for the projected impacts identified in the

10  environmental impact inventory described in subsection (2),

11  the Department of Transportation shall identify funds

12  quarterly in an escrow account within the State Transportation

13  Trust Fund for the environmental mitigation phase of projects

14  budgeted by the Department of Transportation for the current

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

16  Department of Transportation for the benefit of the Department

17  of Environmental Protection and the water management

18  districts. Any interest earnings from the escrow account shall

19  remain with the Department of Transportation.

20         (b)  Each transportation authority established pursuant

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

22  this program shall create an escrow account within its

23  financial structure and deposit funds in the account to pay

24  for the environmental mitigation phase of projects budgeted

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

26  maintained by the authority for the benefit of the Department

27  of Environmental Protection and the water management

28  districts. Any interest earnings from the escrow account shall

29  remain with the authority.

30         (c)  Except for current mitigation projects in the

31  monitoring and maintenance phase and except as allowed by

                                  6

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




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

 2  water management districts may request a transfer of funds

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

 4  date the funds are needed to pay for activities associated

 5  with development or implementation of the approved mitigation

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

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

 8  production, and staff support. Actual conceptual plan

 9  preparation costs incurred before plan approval may be

10  submitted to the Department of Transportation or the

11  appropriate transportation authority and the Department of

12  Environmental Protection by November 1 of each year with the

13  plan. The conceptual plan preparation costs of each water

14  management district will be paid from mitigation funds

15  associated with the environmental impact inventory for the

16  current year based on the amount approved on the mitigation

17  plan and allocated to the current fiscal year projects

18  identified by the water management district. The amount

19  transferred to the escrow accounts each year by the Department

20  of Transportation and participating transportation authorities

21  established pursuant to chapter 348 or chapter 349 shall

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

23  projected acres of impact identified in the environmental

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

25  $75,000 cost per acre does not constitute an admission against

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

27  admissible as evidence of full compensation for any property

28  acquired by eminent domain or through inverse condemnation.

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

30  percentage change in the average of the Consumer Price Index

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

                                  7

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




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

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

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

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

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

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

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

 8  transfer of funds shall be adjusted accordingly to reflect the

 9  acreage of impacts as permitted overtransfer or undertransfer

10  of funds from the preceding year. The Department of

11  Transportation and participating transportation authorities

12  established pursuant to chapter 348 or chapter 349 are

13  authorized to transfer such funds from the escrow accounts to

14  the Department of Environmental Protection and the water

15  management districts to carry out the mitigation programs. For

16  a mitigation project that is in the maintenance and monitoring

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

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

19  maintenance and monitoring costs. Upon disbursement of the

20  final maintenance and monitoring payment, the escrow account

21  for the project established by the Department of

22  Transportation or the participating transportation authority

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

24  shall remain with the water management district and must be

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

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

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

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

29  federally funded transportation projects that are included on

30  the environmental impact inventory and that have an approved

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

                                  8

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




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

 2  $75,000 per acre, adjusted as provided under paragraph (c),

 3  for federally funded and nonfederally funded transportation

 4  projects that have an approved mitigation plan. All mitigation

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

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

 7  support, future maintenance, and monitoring the mitigated

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

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

10  management district, in consultation with the Department of

11  Environmental Protection, the United States Army Corps of

12  Engineers, the Department of Transportation, transportation

13  authorities established pursuant to chapter 348 or chapter

14  349, and other appropriate federal, state, and local

15  governments, and other interested parties, including entities

16  operating mitigation banks, shall develop a plan for the

17  primary purpose of complying with the mitigation requirements

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

19  shall also address significant invasive plant problems within

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

21  the districts shall utilize sound ecosystem management

22  practices to address significant water resource needs and

23  shall focus on activities of the Department of Environmental

24  Protection and the water management districts, such as surface

25  water improvement and management (SWIM) projects waterbodies

26  and lands identified for potential acquisition for

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

28  of invasive and exotic plants in wetlands and other surface

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

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

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

                                  9

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1  plans, the districts shall also consider the purchase of

 2  credits from public or private mitigation banks permitted

 3  under s. 373.4136 and associated federal authorization and

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

 5  when such purchase would offset the impact of the

 6  transportation project, provide equal benefits to the water

 7  resources than other mitigation options being considered, and

 8  provide the most cost-effective mitigation option. The

 9  mitigation plan shall be submitted to preliminarily approved

10  by the water management district governing board, or its

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

12  Department of Environmental Protection for review and final

13  approval. The preliminary approval by the water management

14  district governing board does not constitute a decision that

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

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

17  management district shall provide a copy of the draft

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

19         (a)  For each transportation project with a funding

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

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

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

23  of identifiable costs of the mitigation bank and nonbank

24  options to the extent practicable.

25         (b)  Specific projects may be excluded from the

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

27  to this section upon the agreement of the Department of

28  Transportation, or a transportation authority if applicable,

29  the Department of Environmental Protection, and the

30  appropriate water management district that the inclusion of

31  such projects would hamper the efficiency or timeliness of the

                                  10

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1  mitigation planning and permitting process., or the Department

 2  of Environmental Protection and The water management district

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

 4  district is are unable to identify mitigation that would

 5  offset the impacts of the project.

 6         (c)  Surface water improvement and management or

 7  invasive plant control projects undertaken using the $12

 8  million advance transferred from the Department of

 9  Transportation to the Department of Environmental Protection

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

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

12  available for mitigation until the $12 million is fully

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

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

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

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

17  the extent the cost of developing and implementing the

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

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

20  difference shall be retained by the Department of

21  Transportation and credited towards the $12 million advance

22  until the Department of Transportation is fully refunded for

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

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

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

26  greatest extent possible, be directed to fund invasive plant

27  control within wetlands and other surface waters, SWIM

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

29  governing board of the water management district which may be

30  appropriate to offset environmental impacts of future

31  transportation projects. The water management districts may

                                  11

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    Florida Senate - 2005                            CS for SB 718
    606-2070-05




 1  request these funds upon submittal of the final invoice for

 2  each road project.

 3         (5)  The water management district shall be responsible

 4  for ensuring that mitigation requirements pursuant to 33

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

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

 7  implementation of the approved plan described in subsection

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

 9  Transportation, or a transportation authority established

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

11  the federal permitting process, the water management district

12  may deviate from the approved mitigation plan in order to

13  comply with federal permitting requirements.

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

15  reflect the most current Department of Transportation work

16  program and project list of a transportation authority

17  established pursuant to chapter 348 or chapter 349, if

18  applicable, and may be amended throughout the year to

19  anticipate schedule changes or additional projects which may

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

21  be submitted to the governing board of the water management

22  district or its designee secretary of the Department of

23  Environmental Protection for approval. However, such approval

24  shall not be applicable to a deviation as described in

25  subsection (5).

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

27  management district or its designee secretary of the

28  Department of Environmental Protection, the mitigation plan

29  shall be deemed to satisfy the mitigation requirements under

30  this part for impacts specifically identified in the

31  environmental impact inventory described in subsection (2) and

                                  12

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    Florida Senate - 2005                            CS for SB 718
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 1  any other mitigation requirements imposed by local, regional,

 2  and state agencies for these same impacts identified in the

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

 4  governing board of the water management district or its

 5  designee secretary shall authorize the activities proposed in

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

 7  permit or approval shall be necessary.

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

 9  the need for the Department of Transportation or a

10  transportation authority established pursuant to chapter 348

11  or chapter 349 to comply with the requirement to implement

12  practicable design modifications, including realignment of

13  transportation projects, to reduce or eliminate the impacts of

14  its transportation projects on wetlands and other surface

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

16  to diminish the authority under this part to regulate other

17  impacts, including water quantity or water quality impacts, or

18  impacts regulated under this part that are not identified in

19  the environmental impact inventory described in subsection

20  (2).

21         (9)  The process for environmental mitigation for the

22  impact of transportation projects under this section shall be

23  available to an expressway, bridge, or transportation

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

25  this process may be initiated by an authority depositing the

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

27  and filing an environmental impact inventory with the

28  appropriate water management district. An authority that

29  initiates the environmental mitigation process established by

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

31  providing the appropriate water management district and the

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    Florida Senate - 2005                            CS for SB 718
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 1  Department of Environmental Protection with the requisite work

 2  program information. A water management district may draw down

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

 4         Section 5.  This act shall take effect July 1, 2005.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 718

 8                                 

 9  Provides county governments with the same authority to issue
    permits for the "display of advertising of any sort" as
10  currently exists for municipalities, and expands the
    prohibition of issuing permits for "display of advertising of
11  any sort" by local governmental entities from the interstate
    highway system to all limited access facilities.
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