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       Florida Senate - 2010                                    SB 2238
       By Senator Richter
       37-01334B-10                                          20102238__
    1                        A bill to be entitled                      
    2         An act relating to mitigation banks; amending s.
    3         373.4135, F.S.; requiring that rules of the Department
    4         of Environmental Protection and the water management
    5         districts relating to mitigation banks be consistent
    6         with federal regulations; amending s. 373.414, F.S.;
    7         requiring the Department of Environmental Protection
    8         to adopt a uniform process for obtaining a formal
    9         assessment determination for potential mitigation bank
   10         establishment; providing that a formal assessment
   11         determination is binding for a specified period and
   12         constitutes final agency action; requiring the
   13         department to provide training and guidance on the
   14         application of the assessment method; providing an
   15         effective date.
   17         WHEREAS, wetland mitigation banks in Florida must be
   18  authorized by permit issued by the Department of Environmental
   19  Protection or a water management district and by a mitigation
   20  bank instrument executed by the United States Army Corps of
   21  Engineers and other involved federal agencies, and
   22         WHEREAS, in order to obtain such authorizations, wetland
   23  mitigation banks must undergo rigorous review by both state and
   24  federal agencies to ensure that the mitigation banks have valid
   25  technically suitable mitigation plans, mitigation service areas
   26  delineating the territory where the mitigation bank can be used,
   27  adequate conservation easements or other real property
   28  mechanisms ensuring perpetual preservation of the mitigation
   29  bank property, and financial mechanisms to ensure that the
   30  mitigation bank is successfully implemented and managed in
   31  perpetuity, and
   32         WHEREAS, mitigation banks must meet these requirements
   33  before they can be used to offset impacts, and
   34         WHEREAS, because these requirements are imposed on
   35  mitigation banks, they generally involve less risk and
   36  uncertainty than other forms of wetland mitigation, and
   37         WHEREAS, various studies performed at the national level
   38  regarding the effectiveness of mitigation options, including the
   39  National Academy of Sciences study, “Compensating for Wetland
   40  Losses under the Clean Water Act,” dated June 2001; the United
   41  States General Accounting Office study, “Wetlands Protection:
   42  Assessments Needed to Determine Effectiveness of In-Lieu-Fee
   43  Mitigation,” dated May 2001; the United States Army Corps of
   44  Engineers study, “Review and Analysis of In Lieu-Fee-Mitigation
   45  in the CWA Section 404 Permitting Program,” dated November 2000;
   46  and the February 2004 position paper by the Society of Wetland
   47  Scientists have found or noted that wetland mitigation banks
   48  offer advantages over other forms of wetland mitigation due to
   49  superior mitigation plans, advanced implementation, and a
   50  watershed related mitigation approach, and
   51         WHEREAS, various studies of wetland mitigation in Florida,
   52  including Kevin Erwin’s study, “An evaluation of wetland
   53  mitigation in the South Florida Water Management District,” Vol.
   54  1, Contract #C89–0082-A1, South Florida Water Management
   55  District, West Palm Beach, FL, USA 1991; and Ann Redmond’s
   56  study, “How Successful is Mitigation?” National Wetlands
   57  Newsletter, Environmental Law Institute, Jan./Feb. 1992, have
   58  concluded that mitigation on the site of a wetland impact is
   59  often not successful due to unsuitable adjacent land use
   60  conditions or hydrology, and
   61         WHEREAS, the United States Army Corps of Engineers and the
   62  Environmental Protection Agency adopted new rules in 2008
   63  regarding wetland mitigation, which provide a preference for
   64  mitigation bank credits in order to offset an impact where the
   65  activity causing the impact is in the service area of an
   66  approved bank that has the appropriate types of mitigation
   67  credits available, and
   68         WHEREAS, Florida’s current rules regarding the use of
   69  mitigation banks are not consistent with rules of the United
   70  States Army Corps of Engineers and the Environmental Protection
   71  Agency because Florida’s rules provide a preference for onsite
   72  mitigation within the service area of an approved mitigation
   73  bank that has the appropriate types of credits available, NOW,
   76  Be It Enacted by the Legislature of the State of Florida:
   78         Section 1. Paragraph (b) of subsection (1) of section
   79  373.4135, Florida Statutes, is amended to read:
   80         373.4135 Mitigation banks and offsite regional mitigation.—
   81         (1) The Legislature finds that the adverse impacts of
   82  activities regulated under this part may be offset by the
   83  creation, maintenance, and use of mitigation banks and offsite
   84  regional mitigation. Mitigation banks and offsite regional
   85  mitigation can enhance the certainty of mitigation and provide
   86  ecological value due to the improved likelihood of environmental
   87  success associated with their proper construction, maintenance,
   88  and management. Therefore, the department and the water
   89  management districts are directed to participate in and
   90  encourage the establishment of private and public mitigation
   91  banks and offsite regional mitigation. Mitigation banks and
   92  offsite regional mitigation should emphasize the restoration and
   93  enhancement of degraded ecosystems and the preservation of
   94  uplands and wetlands as intact ecosystems rather than alteration
   95  of landscapes to create wetlands. This is best accomplished
   96  through restoration of ecological communities that were
   97  historically present.
   98         (b) It is the further intent of the Legislature that
   99  mitigation banks and offsite regional mitigation be considered
  100  appropriate and a permittable mitigation option under the
  101  conditions specified by the rules of the department and water
  102  management districts. Therefore, such rules must provide a
  103  preference for the use of mitigation banks which is consistent
  104  with 33 C.F.R. s. 332.3(b)(2).
  105         Section 2. Subsection (18) of section 373.414, Florida
  106  Statutes, is amended to read:
  107         373.414 Additional criteria for activities in surface
  108  waters and wetlands.—
  109         (18) The department and each water management district
  110  responsible for implementation of the environmental resource
  111  permitting program shall develop and adopt by rule a uniform
  112  mitigation assessment method for wetlands and other surface
  113  waters. The department shall adopt the uniform mitigation
  114  assessment method by rule no later than July 31, 2002. The rule
  115  must shall provide an exclusive and consistent process for
  116  determining the amount of mitigation required to offset impacts
  117  to wetlands and other surface waters, and, once effective,
  118  supersedes shall supersede all rules, ordinances, and variance
  119  procedures from ordinances that determine the amount of
  120  mitigation needed to offset such impacts. Upon adoption Once the
  121  department adopts the uniform mitigation assessment method by
  122  rule, the uniform mitigation assessment method is shall be
  123  binding on the department, the water management districts, local
  124  governments, and any other governmental agencies and becomes
  125  shall be the sole means for determining to determine the amount
  126  of mitigation needed to offset adverse impacts to wetlands and
  127  other surface waters and for awarding to award and deducting
  128  deduct mitigation bank credits. A water management district and
  129  any other governmental agency subject to chapter 120 may apply
  130  the uniform mitigation assessment method without adopting the
  131  rule the need to adopt it pursuant to s. 120.54. If the rule is
  132  deemed invalid, the applicable rules related to establishing
  133  needed mitigation in existence before the adoption of the
  134  assessment method, including those adopted by a county that
  135  administers an approved local program under s. 403.182, and the
  136  method described in paragraph (c) for existing mitigation banks,
  137  shall be authorized for use by the department, water management
  138  districts, local governments, and other state agencies.
  139         (a) The It shall be a goal of the department and water
  140  management districts shall be for that the uniform mitigation
  141  assessment method to developed be practicable for use within the
  142  timeframes provided in the permitting process and result in a
  143  consistent process for determining mitigation requirements and
  144  to. It shall be recognized that any Such method shall require
  145  the application of reasonable scientific judgment. The uniform
  146  mitigation assessment method must determine the value of
  147  functions provided by wetlands and other surface waters
  148  considering the current conditions of these areas, utilization
  149  by fish and wildlife use, location, uniqueness, and hydrologic
  150  connection, and, if when applied to mitigation banks, the
  151  factors listed in s. 373.4136(4). The uniform mitigation
  152  assessment method must shall also account for the expected time
  153  lag associated with offsetting impacts and the degree of risk
  154  associated with the proposed mitigation. The uniform mitigation
  155  assessment method must shall account for different ecological
  156  communities in different areas of the state. In developing the
  157  uniform mitigation assessment method, the department and water
  158  management districts shall consult with approved local programs
  159  under s. 403.182 which have an established mitigation program
  160  for wetlands or other surface waters. The department and water
  161  management districts shall consider the recommendations
  162  submitted by such approved local programs, including any
  163  recommendations relating to the adoption by the department’s
  164  department and water management districts’ adoption districts of
  165  any uniform mitigation methodology that has been adopted and
  166  used by an approved local program in its established mitigation
  167  program for wetlands or other surface waters. Environmental
  168  resource permitting rules may establish categories of permits or
  169  thresholds for minor impacts under which the use of the uniform
  170  mitigation assessment method is will not be required. The
  171  application of the uniform mitigation assessment method is not
  172  subject to s. 70.001. In the event the rule establishing the
  173  uniform mitigation assessment method is deemed to be invalid,
  174  the applicable rules related to establishing needed mitigation
  175  in existence prior to the adoption of the uniform mitigation
  176  assessment method, including those adopted by a county which is
  177  an approved local program under s. 403.182, and the method
  178  described in paragraph (b) for existing mitigation banks, shall
  179  be authorized for use by the department, water management
  180  districts, local governments, and other state agencies.
  181         (b)(a) In developing the uniform mitigation assessment
  182  method, the department shall seek input from the United States
  183  Army Corps of Engineers in order to promote consistency in the
  184  mitigation assessment methods used by the state and federal
  185  permitting programs.
  186         (c)(b) An entity that which has received a mitigation bank
  187  permit before prior to the adoption of the uniform mitigation
  188  assessment method shall have impact sites assessed, for the
  189  purpose of deducting bank credits, using the credit assessment
  190  method, including any functional assessment methodology, which
  191  was in place when the mitigation bank was permitted,; unless the
  192  entity elects to have its credits redetermined, and thereafter
  193  have its credits deducted, using the uniform mitigation
  194  assessment method.
  195         (d) The department shall, by rule, provide a process for
  196  obtaining a formal assessment determination of land for
  197  potential mitigation bank establishment pursuant to the uniform
  198  mitigation assessment method. The rule must specify the
  199  information that must be provided to obtain the assessment and
  200  may require that authority to enter the property be granted. The
  201  rule must also establish procedures for applying for,
  202  processing, and issuing a formal assessment determination. Once
  203  the rule is adopted, a water management district may receive and
  204  take final agency action on petitions for formal assessment
  205  determinations under the rule without adopting the rule pursuant
  206  to s. 120.54. By interagency agreement, the department and each
  207  water management district shall determine which agency shall
  208  implement the formal assessment determination process within the
  209  district. Upon rule adoption, any person or entity may petition
  210  for such determination with the written consent of the person or
  211  entity that has sufficient legal or equitable interest in the
  212  property to grant agency staff access to the property for
  213  assessment purposes. If a petitioner does not provide
  214  information regarding the potential impacts or mitigation
  215  activities for the property, the water management district or
  216  the department shall assess only the property’s current
  217  condition or the without-mitigation condition. The district’s
  218  governing board may authorize its executive director to issue
  219  formal assessment determinations. The water management district
  220  or the department may establish a fee by rule to cover the costs
  221  of processing and acting upon a petition for an assessment
  222  determination. A water management district or the department may
  223  publish or require the petitioner to publish, at the
  224  petitioner’s expense, notice of the intended agency action on
  225  the petition in a newspaper of general circulation within the
  226  affected area.
  227         1. A formal assessment determination is binding for up to 5
  228  years if, for the current conditions or without the mitigation
  229  portion of the assessment, physical conditions on the property,
  230  other than changes that have been authorized by a permit issued
  231  pursuant to this part, which alter the ecological conditions of
  232  the uplands, wetlands, or other surface waters assessed do not
  233  change, and, for the proposed condition portion of the
  234  assessment, the proposed impacts or proposed mitigation have not
  235  changed. Within 60 days before the expiration of a formal
  236  assessment determination, the holder of the determination, with
  237  the written consent of the property owner, may petition for a
  238  new assessment determination for the same parcel of property.
  239  Such determination approving the same uniform mitigation
  240  assessment shall be issued if: physical conditions on the
  241  property, other than changes that have been authorized by a
  242  permit issued pursuant to this part, which alter the ecological
  243  condition of the uplands, wetlands, or other surface waters have
  244  not changed; the uniform mitigation assessment methodology has
  245  not been amended since the previous formal assessment
  246  determination; or, for the proposed conditions portion of the
  247  assessment, the proposed impacts or proposed mitigation have not
  248  changed. The application fee for a subsequent petition must be
  249  less than the application fee for the original assessment
  250  determination. A holder of a formal assessment determination may
  251  also apply for a modification of a determination to reflect
  252  changed physical conditions on the property or new or modified
  253  proposed impacts or mitigation.
  254         2. The governing board or the department may revoke a
  255  formal assessment determination if it finds that the petitioner
  256  has submitted inaccurate information.
  257         3. A formal assessment determination obtained under this
  258  section is final agency action and is in lieu of a declaratory
  259  statement regarding the application of the uniform mitigation
  260  assessment method obtainable under s. 120.565. Sections 120.569,
  261  120.57, and 373.4141 apply to formal assessment determinations
  262  under this section. A formal assessment may be sought alone or
  263  in combination with a formal determination of the extent of
  264  wetlands or other surface waters pursuant to s. 373.421.
  265         (e) The department shall provide training and guidance on
  266  application of the assessment method to ensure consistency and
  267  shall be available to address questions regarding the method’s
  268  application.
  269         Section 3. This act shall take effect July 1, 2010.

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