Chapter 2011-142, Laws of Florida, transferred Florida Communities Trust (“FCT”) from the Department of Community Affairs to the Department of Environmental Protection (“DEP”). As a result of that transfer, FCT rules were transferred to Chapter 62. ...

 

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:
62-818.002Definitions
62-818.003General Requirements and Eligibility Standards
62-818.007Project Evaluation Criteria
62-818.009Project Approval
62-818.011Preparation and Acceptance of the Management Plan
62-818.014Modification to Expand the Project Boundary
62-818.016Consideration of Recipient's Request for Land Exchanges
PURPOSE AND EFFECT: Chapter 2011-142, Laws of Florida, transferred Florida Communities Trust (“FCT”) from the Department of Community Affairs to the Department of Environmental Protection (“DEP”). As a result of that transfer, FCT rules were transferred to Chapter 62. Now, FCT is engaging in rulemaking for its terms and procedures to conform to DEP terms and procedures, specifically those related to appraisals and environmental site assessments. These revisions are necessary to achieve a more consistent, effective, and streamlined approach to implement the FCT program.
SUMMARY: The proposed rule amendments will amend terms and definitions to conform to current DEP terms and definitions. Specifically, definitions and procedures for appraisal related items will refer to Rule Chapter 18-1, which mandates how DEP handles appraisal services and reviews. Additionally, FCT will now utilize the term “grant agreement” rather than “grant contract” and will reference “maximum amount” rather than “maximum approved purchase price.”
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The FCT rules are provided free of charge to the public and applicants following the FCT rules would not incur additional economic impact. Therefore, because the goal of the proposed amendments is to streamline FCT procedures, the Agency determined the proposed amendments would not impost an adverse economic impact or regulatory increases.
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.
RULEMAKING AUTHORITY: 380.507(11) FS.
LAW IMPLEMENTED: 259.105, 380.501-.515 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kristen L. Coons, State of Florida Department of Environmental Protection, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, telephone [phone], email: [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

62-818.002 Definitions.

(1) through (2) No change.

(3) “Applicant” means an eligible Local Government entity(ies) or Nonprofit Environmental Organization entity(ies) which submit an Application(s) or Partnership Application(s) for Florida Forever funds through the Trust. An Applicant who has been approved for funding by the Trust and who has executed a Grant Agreement Contract with the Trust shall also be referred to as a Recipient.

(4) through (10) No change.

(11) “Florida Forever Funds” means proceeds from the Florida Forever Trust Fund created by Section 259.1051, F.S., and distributed to the Department of Environmental Protection pursuant to Sections 259.105(3)(c) and 380.5115, F.S., for the purpose of providing Acquisition Awards through the Florida Communities Trust Florida Forever Program.

(12) No change.

(13) “Future Land Use Map” means a map or map series included within the future land use element of a local comprehensive plan that meets the requirements of Section 163.3177(6), F.S. subsection 9J-5.006(4), F.A.C.

(14) “Governing Board” means that five-member six-member governing body described in Sections 380.504 and 380.505, F.S.; the powers of the Trust are vested in its Governing Board members, pursuant to Section 380.505, F.S.

(15) “Grant Agreement Contract”, formerly known as the “Grant Contract” “Conceptual Approval Agreement”, means a written contract between the Trust and the Recipient setting forth the requirements and responsibilities for Acquisition and management of the Project Site.

(16) through (19) No change.

(20) “Local Comprehensive Plan” means a plan that meets the requirements of Sections 163.3177, 163.3178, 163.3180, and 163.3191, 163.3245 and 163.3248, F.S., and has been found to be in compliance in accordance with Section 163.3184, F.S.

(21) through (22) No change.

(23) “Major Military Installation” includes the following areas designated by the United States Military: Avon Park Air Force Range, Camp Blanding Joint Training Center, Eglin Air Force Base & Hurlburt Field including Outlying Out Lying Field Camp Rudder and Duke, Homestead Air Force Reserve Base, MacDill Air Force Base, Naval Air Station Jacksonville including Outlying Out Lying Field Whitehouse, Naval Air Station Key West (Boca Chica), Patrick Air Force Base, Tyndall Air Force Base, Naval Station Mayport, Naval Air Station Pensacola (Pensacola Complex) including Outlying Out Lying Field Saufley and Site 8 and Naval Air Station Whiting Field including Outlying Out Lying Field Pace, Spencer, Harold, Santa Rosa, Choctaw and Holley.

(24) through (35) No change.

(36) “Reasonable Assurance” means the Applicant’s ability to demonstrate to the Trust that there is a substantial likelihood that the project will be successfully implemented and managed in accordance with the Application and the Grant Agreement Contract, and may include the Trust’s inquiry into: the Applicant’s current and prospective financial condition; the Applicant’s history in acquiring, developing and managing similar projects; the Applicant’s financial commitment to the subject project as evidenced by the amount and type of any Match in the form of monies or real estate; and the character and background of the Applicant’s partners, directors, officers, managers, project administrators, controlling shareholders (if applicable), and appointed or elected officials.

(37) “Recipient” means an Applicant that has been approved for funding by the Trust and who has executed a Grant Agreement Contract with the Trust for an Award.

(38) through (40) No change.

(41) “Reimbursement Acquisition” means the entire Project Site or remaining portion of the Project Site will be acquired by the Applicant through a voluntarily-negotiated transaction after the application deadline and within the terms of the Grant AgreementContract.

(42) No change.

(43) “Trust” means the Florida Communities Trust, a nonregulatory agency and instrumentality, which is a public body corporate and politic, created within the Department of Environmental Protection pursuant to Chapter 380, Part III, F.S., or the Governing Board of the Florida Communities Trust.

(44) through (46) No change.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.501-.515 FS. History–New 5-27-01, Amended 5-20-02, 2-7-05, 2-19-07, 2-8-10, Formerly 9K-7.002, Amended________.

 

62-818.003 General Requirements and Eligibility Standards.

The following constitutes the general procedures for the Florida Forever Program of the Florida Communities Trust (FCT).

(1) Application Form. Application Form FCT-5 (eff. 2-8-10), incorporated herein by reference, is prescribed for use with these rules. Applications for funding must be submitted on Application Form FCT-5. Applicants may only submit one Application Form per Project Site. A copy, or instructions for receiving the Application Form in an electronic format, may be obtained by writing to the Florida Communities Trust, 3900 Commonwealth Boulevard, MS #115, Tallahassee, FL 32399-3000, or by calling [phone], or via www.flrules.org/Gateway/reference.asp?No=Ref-02354.

(2) through (4) No change.

(5) Current Applications: If any Applicant has three or more active Grant Agreements Contracts at the time of the project selection meeting, the Applicant shall not be funded for additional grant Applications until the Applicant has closed out one or more of the active Grant Agreements Contracts so that there are no more than two active Grant Agreements Contracts.

(6) through (10) No change.

(11) Site Management. Each Applicant is required to provide a Management Plan as outlined in this rule chapter. To ensure that future management funds will be available for the management of the site in perpetuity pursuant to Section 259.105, F.S., and Chapter 380, Part III, F.S., the Applicant shall be required to provide the Trust with Reasonable Assurance that they have the financial resources, background, qualifications and competence to manage the Project Site in perpetuity in a reasonable and professional manner that is consistent with the approved Management Plan. Where the Application or Partnership Application does not include at least one Local Government, the Trust shall: require the Recipient to establish an endowment or other fund in an amount equal to ten percent of the project cost to insure that the Project Site shall be reasonably and professionally managed in perpetuity; require a guaranty or pledge by a Local Government, the Water Management District, the Florida Forest Service Division of Forestry, the Florida Fish and Wildlife Conservation Commission, or the Florida Department of Environmental Protection (DEP) which shall require the Local Government, the Water Management District or the State agency to take over the responsibility for management of the Project Site in the event the Nonprofit Environmental Organization is unable to; and require such other assurances as the governing board may deem necessary to adequately protect the public interest.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.505-.515 FS. History–New 5-27-01, Amended 5-20-02, 2-7-05, 2-19-07, 2-8-10, 4-6-11,  Formerly 9K-7.003, Amended________.

 

62-818.004 Submission of Application and Application Materials.

(1) Applications must be submitted by mail or delivery to the Florida Communities Trust, Department of Environmental Protection, 3900 Commonwealth Boulevard, MS #115, Tallahassee, FL 32399-3000. To be timely submitted, Applications must be received on or before the published Application deadline.

(2) through (8) No change.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.508, 380.510 FS. History–New 5-27-01, Amended 5-20-02, 2-7-05, 2-19-07, 2-8-10, Formerly 9K-7.004, Amended________.

 

62-818.007 Project Evaluation Criteria.

The evaluation of Applications shall be based on the criteria set forth in this rule chapter and in Application Form FCT-5 (eff. 2-8-10), incorporated herein by reference. Trust staff will be responsible for evaluating Applications and recommending point scores to the Governing Board. Trust staff shall utilize the information contained in the Application (including exhibits) and all information obtained during its review of the Application for scoring recommendations to the Governing Board. Personnel from other state agencies, regional planning councils, water management districts, and other public and private groups may assist the Trust staff in project evaluation as requested by Trust staff on an application-by-application basis. Unless otherwise noted, an Application shall receive all the points assigned to a particular criterion if the criterion is met; no partial scores will be given for a criterion. If a criterion does not apply to the proposed Project Site, the Applicant should state “No” in the response to the criterion.

(1) through (2)(e) No change.

(f) Water quality. The Project Site provides for the protection or enhancement of water quality (points may be awarded based on the following criteria):

1. No change.

2. The Project Site is adjacent to and will protect Outstanding Florida Waters as designated by the Department of Environmental Protection (5 points);

3. No change.

(2)(g) through (3) No change.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.510 FS. History–New 5-27-01, Amended 5-20-02, 2-7-05, 2-19-07, 2-8-10, Formerly 9K-7.007, Amended________.

 

62-818.009 Project Approval.

(1) Following the ranking and selection of Applications described above but prior to approval, the Trust staff shall conduct site visits or other investigations. If such visits or investigations reveal undisclosed facts or erroneous evaluation conclusions, the Trust staff shall adjust the final score and ranking accordingly. The Trust shall impose conditions based on Applicant representations and findings from site visits and other investigations. Applicants will be advised of the conditions prior to Trust approval and completion of the Grant Agreement Contract. Any conditions imposed on the Applicant must be met prior to receiving Project Plan approval. Further, the Trust shall have the right to alter the ranking of Applications based on the site visit or investigation findings.

(2) through (3) No change.

(4) The established time frame for funding approval shall be for a period not to exceed 12 months. Approval shall be evidenced by a fully executed Grant Agreement Contract between the Trust and the Recipient. When the established time frame has expired and an approved project has not received Project Plan approval, the project shall be terminated and Trust funds committed to the project shall then be committed to other approved Applications. The Trust may extend the Grant Agreement Contract beyond the established timeframe if the Recipient demonstrates that significant progress is being made toward Project Plan approval or that extenuating circumstances warrant an extension of time. All requests for extensions shall be made in writing to the Trust, prior to the expiration of the established timeframe, fully explaining the reason for the delay and why the extension is necessary.

(5) The time period of the Grant Agreement Contract and extensions shall not exceed a total of 24 months; unless, however, the Trust extends an Award beyond 24 months when the Recipient demonstrates that significant progress is being made toward closing the project or that extenuating circumstances warrant an extension of time.

(6) The Trust may unilaterally terminate the Grant Agreement Contract prior to the established time frame, if it is determined by the Trust that no significant progress is being made toward the Acquisition of the Project Site or other circumstances are present which would, in all likelihood, preclude or prevent the successful Acquisition of the Project Site within the established time frame.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.510 FS. History–New 6-25-01, Amended 5-20-02, 2-7-05, 4-6-11, Formerly 9K-7.009, Amended________.

 

62-818.011 Preparation and Acceptance of the Management Plan.

(1) Prior to release of Florida Forever Funds for a project, the Recipients shall submit a Management Plan for approval by the Trust. Phased Projects or additions to Trust funded projects shall be combined into existing Management Plans. The Management Plan shall explain how the Project Site will be managed to further the purposes of the project and meet the terms and conditions of the Grant Agreement Contract.

(2) The Trust shall approve the Management Plan upon confirmation that it is consistent with the purposes of the Application and the terms and conditions of the Grant Agreement Contract.

(3) No change.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.510 FS. History–New 6-25-01, Amended 5-20-02, 2-7-05, 2-19-07, 2-8-10, Formerly 9K-7.011, Amended________.

 

62-818.014 Modification to Expand the Project Boundary.

Modification to expand the boundary of a Project Site selected for approval will be considered by the Trust on a case-by-case basis. Requests to modify the project boundary shall be submitted to the Trust within 12 months of the approval of the Grant Agreement Contract. Requests for boundary amendments received after said deadline shall not be considered unless an exception is granted by the Trust based upon the demonstration of good cause. Good cause shall be based on whether the boundary modification is necessary to the successful development and management of the Project Site. The following procedures are established to guide the submission and review of boundary modification requests.

(1) A written request for boundary modification must be submitted and contain the items listed below. The request must be transmitted with an original signature cover letter on the Recipient’s letterhead, signed by the appropriate authorized representative named in the Grant Agreement Contract, and include a statement binding the Recipient to fulfill the commitments made in the request for boundary modification.

(a) through (e) No change.

(2) through (4) No change.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.510 FS. History–New 2-8-10, Formerly 9K-7.014, Amended________.

 

62-818.016 Consideration of Recipient’s Request for Land Exchanges.

The Declaration of Restrictive Covenants for Trust Project Sites limits the use of the property to conservation, outdoor recreation, and other related activities. However, Recipients occasionally receive requests from adjacent property owners for land exchanges to expand the adjacent development in return for other lands adjacent to the park.

When evaluating these requests, the following process must be followed.

(1) through (2)(e). No change.

(f) Separate appraisals for each parcel (to be paid by the entity proposing the exchange and commissioned by the Recipient). The appraisal shall be completed according to the Department Uniform Standards of Professional Appraisal Practice (USPAP) and FCT standards by an approved DEP appraiser, after consultation with Department FCT appraisal staff. The parcel(s) to be provided by the Recipient/Trust shall be appraised as if it did not have any development restrictions on it;

(g) through (h) No change.

(3) No change.

Rulemaking Authority 380.507(11) FS. Law Implemented 259.105, 380.510 FS. History–New 2-8-10, Formerly 9K-7.016, Amended________..

NAME OF PERSON ORIGINATING PROPOSED RULE: Susan Grandin, Director, Division of State Lands
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Herschel T. Vinyard Jr., Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 05, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 28, 2013, Vol. 39/18