40D-4.091: Publications, Forms and Agreements Incorporated by Reference
PURPOSE AND EFFECT: Proposed rule amendment incorporates by reference a revised Environmental Resource Permitting Information Manual Part B, Basis of Review (BOR). Revisions are proposed to BOR Chapter 3, Sections 3.2 3.3.2.2. The purpose and effect of this rulemaking will be to clarify, update and correct certain provisions pertaining to mitigation of impacts to wetlands and other surface waters.
SUMMARY: Chapter 3 of the Districts Environmental Resource Permitting Manual Part B Basis of Review (BOR) contains the environmental criteria used in evaluating an ERP application to determine whether conditions for permit issuance are met, including mitigation criteria for impacts to wetlands and other surface waters. Proposed revisions to Chapter 3 will accomplish the following: 1) clarify the current exemption from mitigation in subsection 3.2.2.2 for alterations to wholly owned ponds less than one acre and constructed in uplands and upland cut ditches; 2) eliminate the apparent preference for on-site mitigation vs. off-site in subsection 3.3.1.2; 3) create a new subsection 3.3.1.2.1 to explain requirements for demonstrating sufficient ownership or control of off-site mitigation areas, to provide reasonable assurance of mitigation success; 4) revise sections 3.3.2 3.3.2.2 to clarify when the Uniform Mitigation Assessment Method (UMAM) supersedes ratio guidelines, when UMAM is applied and when it is not; 5) make several non-substantive technical corrections such as correcting rule references, improving sentence structure, etc.
Rule 40D-4.091, F.A.C., is amended to incorporate by reference the revised BOR and effective date.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A SERC was prepared for this rulemaking. The revisions are not substantive and are needed to clarify existing provisions relating primarily to mitigation for unavoidable impacts to wetlands and other surface waters. Some minor technical changes are also being made for updating purposes. Based on prior permitting history, the District anticipates that, on average, 172 applicants per year will be seeking to undertake mitigation for impacts to wetlands or other surface waters and could potentially be affected by this rulemaking. The District expects that such permit applicants will not be adversely affected by the proposed amendments, as the amendments correct or clarify existing rule language. There are no anticipated negative impacts on state or local revenues. Proposed changes to on-site/off-site mitigation requirements, if anything, will increase the permittees flexibility to choose the most cost-effective form of mitigation. Consequently, the proposed rule revisions are not anticipated to lead to increased transactional costs to new applicants or those seeking to revise existing Environmental Resource Permits.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 373.044, 373.046, 373.113, 373.171, 373.414 FS.
LAW IMPLEMENTED: 373.0361, 373.079(4)(a), 373.083(5), 373.114, 373.171, 373.403, 373.413, 373.4135, 373.4136, 373.414, 373.4144, 373.416, 373.429, 373.441 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Pam Gifford, Office of General Counsel, 2379 Broad St., Brooksville, FL 34604-6899, (352)796-7211 (4156) (OGC #2010018)
THE FULL TEXT OF THE PROPOSED RULE IS:
40D-4.091 Publications, Forms and Agreements Incorporated by Reference.
The following documents are hereby incorporated by reference and are applicable to this chapter and Chapters 40D-40 and 40D-400, F.A.C.:
(1) Environmental Resource Permitting Information Manual Part B, Basis of Review, Environmental Resource Permit Applications within the Southwest Florida Water Management District, [effective date] September 5, 2010. This document is available from the Districts website at www.watermatters.org or from the District upon request.
(2) through (6) No change.
Rulemaking Authority 373.044, 373.046, 373.113, 373.171, 373.414 FS. Law Implemented 373.0361, 373.079(4)(a), 373.083(5), 373.114, 373.171, 373.403, 373.413, 373.4135, 373.4136, 373.414, 373.4144, 373.416, 373.429, 373.441 FS. HistoryNew 4-2-87, Amended 3-1-88, 9-11-88, 10-1-88, 4-1-91, 11-16-92, 1-30-94, 10-3-95, 12-26-95, 5-26-96, 7-23-96, 4-17-97, 4-12-98, 7-2-98, 12-3-98, 7-28-99, 8-3-00, 9-20-00, 6-12-01, 10-11-01, 2-27-02, 7-29-02, 3-26-03, 7-22-03, 8-3-03, 3-11-04, 6-7-04, 2-1-05, 6-30-05, 10-19-05, 2-8-06, 5-2-06, 7-1-07, 9-25-07(1), 9-25-07(4), 11-26-07, 5-12-08, 5-20-08, 6-22-08, 5-12-09, 5-17-09, 8-30-09, 11-2-09, 11-3-09, 12-9-09, 9-5-10,_________.
Environmental Resource Permitting Information Manual Part B Basis of Review
3.2 Environmental Criteria.
Compliance with the conditions for issuance in subsection 3.1.1 will be determined through compliance with the criteria explained in subsections 3.2 through 3.3.8.6 of this BOR Handbook.
3.2.2 Fish, Wildlife, Listed Species and Their Habitats.
To meet the condition for issuance in Pursuant to paragraph 3.1.1(a), an applicant must provide reasonable assurance that a regulated activity will not impact the values of wetlands, other surface waters and other water related resources of the District, so as to cause adverse impacts to:
a. the abundance and diversity of fish, wildlife and listed species; and
b. the habitat of fish, wildlife and listed species.
In evaluating whether an applicant has provided such reasonable assurance under this subsection 3.2.2, B.O.R., the magnitude of the effect of the regulated activity shall be considered, and de minimis effects shall not be considered adverse.
As part of the assessment of the impacts of regulated activities upon fish and wildlife and their habitat, the District will provide a copy of all notices of application for standard general and individual permits, including conceptual permits, which propose regulated activities in, on or over wetlands or other surface waters and which propose activities that have a potential to impact listed marine species to the Florida Fish and Wildlife Conservation Commission for review and comment. In addition, the District staff may solicit comments from the Florida Fish and Wildlife Conservation Commission regarding other applications to assist in the assessment of potential impacts to wildlife and their habitats, particularly with regard to listed wildlife species. Where proposed activities have a potential to impact listed marine species, the District will provide a copy of the above-referenced types of applications to the Department of Environmental Protection.
The need for a wildlife survey will depend upon the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species, and whether the proposed system will impact that use such that the criteria in subsections 3.2.2 through 3.2.2.3 and subsection 3.2.7 will not be met. Survey methodologies employed to inventory the site must provide reasonable assurance regarding the presence or absence of the subject listed species.
3.2.2.2 Alterations to wholly owned ponds that were constructed entirely in uplands and which are less than one acre in area and alterations to drainage ditches that were constructed in uplands will not be required to comply with the provisions of subsections 3.2.2 through 3.2.2.3, 3.2.3 through 3.2.3.7 and 3.2.5 through 3.3.8, unless those ponds or ditches provide significant habitat for threatened or endangered species. This means that, except in cases where those ponds or ditches provide significant habitat for threatened or endangered species, the only environmental criteria that will apply to those ponds or ditches are those included in subsections 3.2.2.4, and 3.2.4 through 3.2.4.5. This provision shall only apply to those ponds and ditches which were constructed before a permit was required under Part IV, Chapter 373, F.S. or were constructed pursuant to a permit under Part IV, Chapter 373, F.S. This provision does not apply to ditches constructed to divert natural stream flow or to ponds and ditches constructed in violation of rules authorized under Chapter 373, Part IV, F.S.
3.3 Mitigation.
3.3.1.2 Mitigation can be conducted on-site or off-site, or accomplished through the purchase of credits from a mitigation bank, or through a combination of approaches, as long as it sufficiently offsets anticipated adverse impacts to wetlands and other surface waters and meets all other criteria for permit issuance. In general, mitigation is best accomplished when located on-site or in close proximity to the area being impacted. Off-site mitigation is preferred when: will only be accepted if adverse impacts are offset and the applicant demonstrates that:
a. on-site mitigation opportunities are not expected to have comparable long-term viability due to such factors as unsuitable hydrologic conditions or ecologically incompatible existing adjacent land uses or future land uses identified in a local comprehensive plan adopted according to Chapter 163, F.S.; or
b. off-site mitigation will would provide greater improvement in ecological value than on-site mitigation.
One example of a project that would be expected to benefit from off-site mitigation meet the criteria of paragraph (a) or (b) above is a linear project which cannot effectively implement on-site mitigation due to right-of-way constraints.
3.3.1.2.1 Off-site Mitigation An applicant proposing an off-site location at which to mitigate adverse impacts to wetlands and other surface waters must provide reasonable assurance that the permitted mitigation activities will be conducted by an entity with the financial, legal and administrative capability of ensuring that the activities will be undertaken in accordance with the terms and conditions of the permit, if issued, pursuant to paragraph 40D-4.301(1)(j), F.A.C. Compliance with this requirement can be demonstrated by providing the District with a copy of one of the following: a deed conveying fee simple ownership of the mitigation area to the applicant; an easement in favor of the applicant that grants access to and use of the mitigation area for the activities required by the permit; or a purchase and sale agreement for an interest in the mitigation area sufficient to allow the applicant to comply with all permit conditions. If the applicant demonstrates compliance with this requirement by providing the District with a purchase and sale agreement, the permit, if issued, shall be conditioned to prohibit all construction until ownership is transferred to the permittee. If the transfer of ownership does not occur by the date specified in the permit or any extension approved by the District, the permit shall terminate. This provision does not apply if the applicant proposes to offset adverse impacts to wetlands or other surface waters through the purchase of credits from a mitigation bank, or participation in regional off-site mitigation pursuant to Section 373.4135, F.S., and does not apply to the Florida Department of Transportation when mitigation is accomplished pursuant to Section 373.4137, F.S.
3.3.1.4 In instances where an applicant is unable to meet water quality standards because existing ambient water quality does not meet standards and the system will contribute to this existing condition, mitigation for water quality impacts can consist of water quality enhancement. In these cases, the applicant must implement mitigation measures that will cause net improvement of the water quality in the receiving waters for those parameters which do not meet standards. (See 373.414(1)(b)(16), F.S.)
3.3.1.8 Innovative mitigation proposals which deviate from the standard practices described in subsections 3.3 through 3.3.6 may be proposed by an applicant; however to receive District approval they must offset the adverse impacts to the functions identified in subsections 3.2 through 3.2.8.2. The donation of money is not considered to be an acceptable method of mitigation, unless cash payments are specified for use in a District or Department of Environmental Protection endorsed environmental, preservation, enhancement or restoration project, and the payments initiate a project or supplement an ongoing project. The project or portion of the project funded by the donation of money must offset the impacts of the proposed system.
3.3.2 Mitigation Ratio Guidelines.
a. The Uniform Mitigation Assessment Method (UMAM) set forth in Chapter 62-345, F.A.C., establishes a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions are reduced by a proposed impact, and the amount of mitigation necessary to offset that loss, for those activities subject to review under Section 373.414, F.S., and not excluded pursuant to subsection 62-345.100(3), F.A.C. This method does not assess whether other criteria for permit issuance are met. Where applicable, the UMAM supersedes the ratios established in subsections 3.3.2 through 3.3.2.3 used for determining the amount of mitigation required to offset an adverse impact.
b. The District will verify the information required to be provided and considered under the UMAM and will determine the amount of mitigation required to offset adverse impacts to wetlands and other surface waters.
c. Chapter 62-345, F.A.C., also establishes the criteria to award and deduct mitigation bank or regional offsite mitigation area credits. For permit applications for mitigation banks or regional offsite mitigation areas that are issued by the District, the District will be responsible for verifying the information and applying the UMAM to determine the potential amount of mitigation to be provided by the bank or regional offsite mitigation area and the number of credits to be required as mitigation for specific projects permitted by the District that will use the mitigation bank or regional offsite mitigation area to offset adverse impacts to wetlands or other surface waters.
a. Except as provided in Rule 62-345, F.A.C., subsections 3.3.2 through 3.3.2.3 are superseded by Rule 62-345, F.A.C.
d.b. Subsections 3.3.2 through 3.3.2.2 establish ratios for the acreage of mitigation required compared to the acreage which is adversely impacted by regulated activities and are applicable as provided in Rule 62-345, F.A.C. Ranges of ratios are provided below for certain specific types of mitigation, including creation, restoration, enhancement and preservation. These ranges will be used to assess impacts and mitigation requirements in those instances where UMAM is not applicable. The difference between the ranges of ratios provided for mitigation types is based on the degree of improvement in ecological value expected from each type. Creation and restoration are assigned the lowest range of ratios as these activities, when successfully conducted, add new wetlands or other surface waters which provide the same or similar functions as the areas adversely impacted. The range of ratios established for enhancement is higher than that for creation and restoration, as the area being enhanced currently provides a degree of the desired functions, and this type of mitigation serves to increase, rather than create, those functions.
e. Preservation differs from the other types of mitigation in that it does not serve to improve the existing ecological value of an area in the short term. However, preservation does provide benefits as it can ensure that the values of the preserved area are protected and maintained in the long term, particularly when these values are not fully protected under existing regulatory programs. Therefore, the range of ratios established for preservation is higher than those for other types of mitigation.
f. These ratios are provided as guidelines for preliminary planning purposes only. The actual ratio needed to offset adverse impacts may be higher or lower based on a consideration of the factors listed in subsections 3.3.2.1 and 3.3.2.2. For example, in instances where the proposed system results in only a small loss of ecological value in the impacted area, such as cases involving impacts to areas of low ecological value or cases where the proposed system results in a small reduction of ecological value of the impacted area, then the actual mitigation ratio would normally be in the lower end of or below the range. For other types of mitigation, ratios will be determined based upon the reduction in quality and relative value of the functions of the areas adversely impacted as compared to the expected improvement in quality and value of the functions of the mitigation area.
3.3.2.1 Creation, Restoration and Enhancement.
When considering creation, restoration and enhancement as mitigation, the following factors will be considered to determine whether the mitigation will offset the proposed impacts and to determine the appropriate mitigation ratio:
a. through f. No change.
g. Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to Chapter 378, F.S., shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities.
3.3.2.2 Preservation
a. Preservation of important ecosystems can provide an improved level of protection over current regulatory programs. Wetlands, other surface waters, or uplands that comprise important ecosystems Preservation shall be preserved by donation of the fee title to the property or a, conservation easement interest in the property or other comparable land use restriction, of wetlands, other surface waters, or uplands. Conservation easements or restrictions must be consistent with the requirements of subsection 3.3.8. In many cases it is not expected that preservation alone will be sufficient to offset adverse impacts. Preservation will most frequently be approved in combination with other mitigation measures.
Appendix 4. Mitigation Banks
b. through d. No change.
3. Use of a Mitigation Bank.
Use of a mitigation bank is an appropriate and permittable mitigation option when the mitigation bank will offset the adverse impacts of the project and meet all other criteria for permit issuance. Some examples of when the use of a mitigation bank may be preferred include:; and
a. on-site mitigation opportunities are not expected to have comparable long-term viability due to such factors as unsuitable hydrologic conditions or ecologically incompatible existing adjacent land uses or future land uses identified in a local comprehensive plan adopted according to Chapter 163, F.S.; and or
b. use of the mitigation bank would provide greater improvement in ecological value than on-site mitigation.
In some cases, a combination of on-site mitigation and participation in a mitigation bank will be appropriate to offset adverse impacts of a project.
