Amendments to and Releases of Regulatory Conservation Easements.

WATER MANAGEMENT DISTRICTS
St. Johns River Water Management District

RULE NO: RULE TITLE
40C-1.1101: Amendments to and Releases of Regulatory Conservation Easements.

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 35 No. 28, July 17, 2009 issue of the Florida Administrative Weekly.

40C-1.1101 Amendments to and Releases of Conservation Easements.

(1) This section establishes the terms and conditions under which the District shall agree to amend or release all or part of a conservation easement conveyed to it, pursuant to Section 704.06, Florida Statutes, solely for mitigation or in compliance with other regulatory requirements of the District or another governmental entity. It does not apply to conservation easements that were acquired by the District partly through purchase and partly through a regulatory program. The District’s decision to release or amend a conservation easement is a proprietary decision and does not result in any waiver of regulatory requirements. Property owners shall be responsible for obtaining all necessary permits for their construction activities, including any dredging or filling of wetlands. A request for the release or amendment of a conservation easement shall include a copy of the recorded conservation easement; a copy of any conservation easement over other property offered in exchange for the requested release or amendment; and a map showing the location of the recorded conservation easement and any conservation easement offered in exchange. For the District to agree to release or amend a conservation easement, the request for release or amendment shall satisfy the conditions of any one of the following six categories and the general condition in paragraph 40C-1.1101(1)(g), F.A.C.:

(a) On-site Adjustments. The District shall release or amend a conservation easement under this category when:

1. through 2. No change.

3. The District shall use the Uniform Mitigation Assessment Method (UMAM) in Chapter 62-345, F.A.C. (September 12, 2007), to establish ecological values.

4. No change.

(b) Conservation Easements not needed to meet Regulatory Requirements. The District shall release or amend a conservation easement under this category when:

1. through 2. No change.

3. The permittee has not commenced construction under the permit that required the conservation easement and has obtained a permit modification approving different mitigation, provided that the release or amendment shall not adversely affect the ecological value of other conservation lands or interests in lands, owned by the District; or

4. For a mitigation bank or a permitted bank phase, no bank credits have been sold or used from the bank or permitted phase, as applicable; and the relevant permit for the mitigation bank or permitted phase has been surrendered to the District or to the Department of Environmental Protection for mitigation banks permitted by that agency.

(c) Public Projects. For the purpose of this paragraph, public projects are projects proposed or contracted by, or implemented on behalf of, an entity with the power of eminent domain to condemn the conservation easement, and may include linear facilities such as electric transmission and distribution facilities, pipeline transmission and distribution facilities, or public transportation corridors. For public projects, the District shall voluntarily negotiate for a voluntary release or amend amendment of the conservation easement under the following terms and conditions:

1. The entity making the request shall provide an analysis that demonstrates the public project cannot practicably be located in a manner that will avoid the conservation easement. If the analysis demonstrates that avoiding the easement is not technically capable of being done, is not economically feasible viable, or will adversely affect public safety through the endangerment of lives or property, location of the project in a manner that will avoid the easement shall not be considered “practicable” under paragraph 40C-1.1101(1)(c), F.A.C.

2. If the public project cannot be located to avoid the conservation easement pursuant to subparagraph 40C-1.1101(1)(c)1., F.A.C., the public project, to the extent practicable, shall be located, and hence the release area shall be identified, within the conservation easement as follows:

a. Adjacent to or within existing utility rights-of-way, along the boundary of the existing conservation easement, or adjacent to or within existing firelines or roadways;

b. To avoid wetlands or uplands encumbered by the existing conservation easement that are used by the bald eagle (Haliaeetus leucaphalus) or listed wildlife species as defined in subsection 40C-4.021(20), F.A.C.;

c. To avoid a plant community within the existing conservation easement that has been classified by a state rank of three (3) or lower in the document titled “FNAI [Florida Natural Areas Inventory] – Element Tracking Summary” (October 1, 2008); and

d. To minimize impacts to wetlands and other surface waters located within the existing conservation easement; and

e. To avoid fragmentation of habitat and protect corridors for wildlife movement.

3. In exchange for the release or amendment, the entity making the request must provide the District with a conservation easement having substantially similar terms over other lands within the same drainage basin that have equivalent or greater ecological and monetary value to the area being released or amended. Alternatively, for public projects that are expansions of existing projects facilities, but are not extensions of linear facilities, the entity making the request may, in exchange for the release or amendment, provide credits from a mitigation bank with equivalent or greater ecological and monetary value, but no less than 0.01 credits, or participate in a regional off-site mitigation area (ROMA) sponsored by the Department or the District with equivalent or greater ecological and monetary value, located within the same drainage basin as the conservation easement being released or amended.

a. No change.

b. To establish monetary values, the District shall obtain an appraisal and a review appraisal for the conservation easement to be released or amended in accordance with subsection 40C-1.1101(3), F.A.C. If a conservation easement is proposed in exchange for the release or amendment, the District shall obtain an appraisal and review appraisal for the conservation easement offered in exchange and shall compare the values of the two conservation easements. The cost of measures taken to reduce environmental impacts as required solely by avoid and minimize impacts under subparagraphs 40C-1.1101(1)(c)1. and 2., F.A.C., shall be considered as part of the monetary consideration for the release or amendment value in the exchange. If mitigation bank credits or participation in a ROMA are offered in exchange for the release or amendment of conservation easement, the person requesting the release or amendment must provide the District with a written quote from a mitigation bank for the mitigation credits needed to provide equivalent or greater monetary and ecological value or an analysis from the government entity implementing the ROMA of what portion of the ROMA shall be attributed to the financial contribution proposed.

(d) No change.

(e) Single-Family Lots. The District shall release up to 6,000 square feet from a conservation easement located on a single-family lot in exchange for credits from a mitigation bank or participation in a government-sponsored regional off-site mitigation area (ROMA), located in the same drainage basin as the conservation easement to be released or amended when:

1. The mitigation bank credits or ROMA participation have equivalent or greater monetary and ecological value to the conservation easement being released or amended.

a. The District shall develop an opinion of monetary value based upon the best available information for the conservation easement area to be released or amended. If this opinion of value is not acceptable to the person requesting the release or amendment, the District shall obtain an appraisal and review appraisal of the conservation easement area to be released or amended in accordance with subsection 40C-1.1103(3), F.A.C.

b. through c. No change.

2. The owner of the single-family lot requesting the release or amendment demonstrates that the configuration of the conservation easement on the lot precludes construction of a residence and associated residential improvements consistent with the improvements present within lots in the same subdivision, phase or unit of a residential development. In no case shall the release of a conservation easement result in more than 6,000 square feet of buildable area excluding any setback areas required by local governments. The District shall release the minimum area of conservation easement needed for the lot owner to have a buildable area of up to 6,000 square feet on the lot, where buildable area means the portion of lot available for a residence and other improvements, excluding any setback areas required by local governments.

3. through 5. No change.

6. The 6,000 square foot limit in this paragraph (e) shall not apply to the following activities:

a. A residence and associated residential improvements that were constructed on the lot by a previous owner and the current owner requesting the release or amendment, despite the exercise of due diligence, was unaware that the construction by the previous owner breached the terms of the conservation easement; or

b. A residence and associated residential improvements constructed prior to November 10, 2009.

(f) through (g) No change.

(2) Notice of Receipt of Request to Release or Amend.

(a) Except as otherwise provided in this subsection, for any release of conservation easement greater than 1,000 square feet or amendment affecting more than 1,000 square feet of the conservation easement, the person requesting the release or amendment must provide the District with the names and addresses of all persons who own property abutting the conservation easement area proposed to be released or amended. In addition, the District shall provide notice to all persons who were “interested persons” regarding the permit that caused the conservation easement to be conveyed to the District. An “interested person” is a person, other than the permit applicant, that requested notice of agency action regarding the specific permit application. The District shall also provide notice to commanders of Department of Defense (DOD) installations located within a five mile radius of the conservation easement proposed to be released or amended. The District shall provide notice by U.S. Mail, or e-mail when an e-mail address is available, and provide a 30 day 14-day comment period from the date of the notice before taking action.

(b) through (d) No change.

(3) Appraisals.

(a) For the District to proceed with an appraisal, the person requesting a release or amendment shall provide: a title report for the property to be encumbered by conservation easement in exchange for a release or amendment to the District. The title report shall include

1. A an adequate legal description by metes and bounds of the property to be encumbered by conservation easement in exchange for a release or amendment to the District that also states the size of the property;, and

2. A title report that identifies shall contain sufficient information to inform the District and the appraiser of the status of ownership, encumbrances, exceptions, and reservations on the property and;

3. The amount of wetlands and uplands on the property.

(b) If mitigation bank credits or participation in a ROMA are being proposed in exchange for the release or amendment, only an appraisal of the conservation easement area to be released or amended is required.

(c) Except as otherwise provided in this paragraph sub-subparagraph 40C-1.1101(1)(e)1.a., F.A.C., one appraisal and a review appraisal shall be prepared for each parcel to be released or amended and for each parcel offered in exchange for the release or amendment in order to establish monetary value. Two appraisals shall be required when the estimated value of the conservation easement to be released or amended exceeds $1 million.

(d) All appraisals and review appraisals shall be prepared by appraisers certified under Chapter 475, F.S. in accordance with the 2008-2009 edition of the Uniform Standards of Professional Appraisal Practice developed by the Appraisal Foundation (“USPAP”).

1. Appraisals for Public Projects.

a. The appraisal assignment shall be to provide an opinion of market value of the District conservation easement over the release or amendment area and of the conservation easement offered in exchange. The market value of the conservation easement over the release or amendment area shall be based on the difference between the full fee simple valuation after the release or amendment and the value of the interests remaining with the person seeking the release before the release or amendment. The market value of the conservation easement over the area offered in exchange shall be based on the difference between the value of the full fee simple valuation before the conveyance of a conservation easement and the value of the interest remaining with the grantor of the easement after conveyance of the conservation easement.

2. Single Family Lots.

a. The appraisal assignment shall be to provide an opinion of market value of the District conservation easement over the release or amendment area. The market value of the conservation easement over the release or amendment area shall be based on the difference between the value of the single-family lot after the conservation easement is released or amended and the value of the single-family lot without the conservation easement release or amendment.

(e) All appraisals and review appraisals shall be prepared by an appraiser selected and retained by the District.

(f) The person requesting the release or amendment shall pay the District for the cost of any appraisal and any review appraisal, and payment for the cost of the appraisal(s) and review appraisal shall be made before the District proceeds with the appraisal(s).

Rulemaking Specific Authority 373.044, 373.113, 373.088 FS. Law Implemented 373.096, 373.089, 373.139(2), 373.088 FS. History– New________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Veronika Thiebach, Sr. Asst. General Counsel, Office of General Counsel, St. Johns River Water Management District, 4049 Reid Street, Palatka, Florida 32177, [phone]

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Governing Board of the St. Johns River Water Management District

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 13, 2009

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 18, 2008