62-345.100. Intent and Scope

(1) The intent of this rule is to fulfill the mandate of subsection 373.414(18), F.S., which requires the establishment of a uniform mitigation assessment method to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to award and deduct mitigation bank credits. This chapter shall apply to those impacts subject to review under Section 373.414, F.S., excluding subparagraphs 373.414(1)(a)1., 3., 5., 6. and (b)3., F.S.

(2) Except as specified above, the methodology in this chapter provides 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. It does not assess whether the adverse impact meets other criteria for issuance of a permit, nor the extent that such impacts may be approved. This rule supersedes existing ratio guidelines or requirements concerning the amount of mitigation required to offset an impact to wetlands or other surface waters. Upon a determination that mitigation is required to offset a proposed impact, the methodology set forth in this rule shall be used to quantify the acreage of mitigation, or the number of credits from a mitigation bank or regional offsite mitigation area, required to offset the impact. This method is also used to determine the degree of improvement in ecological value of proposed mitigation bank activities. When applying this method, reasonable scientific judgment must be used.

(3) This method is not applicable to:

(a) Activities for which mitigation is not required;

(b) Activities authorized under general permits under Part IV of Chapter 373, F.S., for which special forms of mitigation are specified in the rule establishing the general permit;

(c) Activities in North Trail Basin and Bird Drive Basin in Miami-Dade County for which mitigation is specified in Department of Environmental Protection Permit Number 132416479, issued February 15, 1995 to Everglades National Park for a mitigation bank in the Hole in the Donut, which is incorporated by reference herein;

(d) Activities for which mitigation is determined under Section 373.41492, F.S.;

(e) Florida Department of Transportation permit applications where mitigation is provided under a plan developed by a water management district and approved by Department of Environmental Protection final order pursuant to Section 373.4137, F.S., prior to the effective date of this rule;

(f) Activities for which mitigation is determined under Section 338.250, F.S. (Central Florida Beltway);

(g) Impacts that are offset under the net improvement provision of subparagraph 373.414(1)(b)3., F.S.;

(h) Fishing or recreational values, pursuant to subparagraph 373.414(1)(a)4., F.S.; or

(i) Mitigation for mangrove trimming and alteration as required and implemented in accordance with Section 403.9332, F.S.

(4) This method is not intended to supersede or replace existing rules regarding cumulative impacts, the prevention of secondary impacts, reduction and elimination of impacts, or to determine the appropriateness of the type of mitigation proposed.

(5) For the following types of secondary impacts, the amount and type of mitigation required to offset these impacts shall include measures such as the implementation of management plans, participation in a wildlife management park established by the Florida Fish and Wildlife Conservation Commission, incorporation of culverts or bridged crossings designed to facilitate wildlife movement, fencing to limit access, reduced speed zones, plans to protect significant historical or archeological resources, or other measures designed to offset the secondary impact, rather than the implementation of Rules 62-345.400 through 62-345.600, F.A.C.:

(a) Secondary impacts to fish or wildlife caused by collision with boat traffic, automobile traffic, or towers;

(b) Secondary impacts to aquatic or wetland dependent listed animal species caused by impacts to uplands used by such species for nesting or denning; or

(c) Secondary impacts to historical or archeological resources.

(6) An entity that has received a mitigation bank permit issued by the Department of Environmental Protection or a water management district under Sections 373.4135 and 373.4136, F.S., prior to the adoption of this rule, or any mitigation bank with an application pending pursuant to subsection 62-345.100(7), F.A.C., and permitted under the applicable rules, ordinances and special acts in effect prior to the adoption of this rule, must have impact sites assessed for the purpose of deducting bank credits using the credit assessment method, including any functional assessment methodology, that was in place when the bank was permitted. A permitted mitigation bank has the option to modify the mitigation bank permit to have its credits re-assessed under the method in this chapter, and thereafter have its credits deducted using the method adopted in this chapter. In accordance with Section 373.4136, F.S., the number of credits awarded must be based on the degree of improvement in ecological value expected to result from the establishment and operation of the mitigation bank, as determined using the assessment methodology in this chapter.

(7) Any application for a permit or other authorization involving mitigation, including mitigation banks, that is pending on or before the effective date of this chapter shall be reviewed under the applicable rules, ordinances, and special acts in effect before the effective date of this chapter, unless the applicant elects to amend the application to be reviewed under this chapter.

(8) Applications to modify a conceptual, conceptual approval, standard, standard general or individual permit that was either issued prior to the effective date of this chapter or reviewed under the applicable rules, ordinances and special acts in effect prior to the adoption of this rule pursuant to subsection 62-345.100(7), F.A.C., shall be evaluated under the mitigation assessment criteria used in the review of the permit, unless the applicant elects to have the application reviewed under this chapter or unless the proposed modification is reasonably expected to lead to substantially different or substantially increased water resource impacts. For the purposes of this subsection, applications to construct part or all of a project that are consistent with a valid conceptual approval permit or a valid conceptual permit shall be considered a modification of the conceptual approval permit or conceptual permit.

(9) An application for a permit under Part IV of Chapter 373, F.S., for an activity associated with mining operations that qualifies for the exemption in subsection 373.414(15), F.S., shall be reviewed under the applicable rules identified in subsection 373.414(15), F.S.

(10) The Department and Water Management Districts shall develop and conduct training workshops for agency staff, local governments, and the public on the application of this rule, prior to the effective date of this rule.

Specific Authority 373.026(7), 373.043, 373.414(9), (18) FS. Law Implemented 373.414(18) FS. History–New 2-2-04, Amended 4-27-05.