Article Index

 

Mitigation

Mitigation Policy

It is the intent of the state’s environmental resource permitting program that there be a “no net loss” in wetland and other surface water functions (note: this is different from acreage). Furthermore, protection of wetlands and surface waters is preferred to destruction and mitigation.

Mitigation may be considered only after practicable modifications have been made to eliminate or reduce otherwise unpermittable adverse impacts. The environmental resource and wetland resource permit rules recognize that, in some cases, mitigation may not be able to offset impacts sufficiently to yield a permittable project.

Mitigation is best accomplished through restoration, creation, enhancement or preservation of ecological communities similar to those being impacted. However, other means or communities may be acceptable and can be considered on a case-by-case basis, as long as the impacts are offset.

Mitigation may be off-site if on-site mitigation is not expected to have long-term viability or if off-site mitigation would provide greater ecological value. Mitigation is typically located within the same basin as the impacts to avoid potential unacceptable cumulative impacts within the basin.

Cash donation is not considered mitigation, unless specified for use in an endorsed environmental project that will serve to offset the impacts.

Mitigation banks and “in-lieu-fee” programs are allowed, given that they are already authorized by the state and serve to offset the impacts.

The environmental resource and wetland resource permit rules currently provide recommended guidelines for mitigation ratios:

  • creation--1:1-6:1
  • enhancement--4:1-20:1
  • preservation--10:1-60:1

However, the above recommended ratios may be adjusted to account for the relative ecological value of the impacts and proposed mitigation, the time lag between impacts and offsetting those impacts, and likelihood of mitigation success on an individual basis.

Section 373.414(18) of the Florida Statutes, adopted by Florida’s legislature in 2000, requires the DEP, in consultation with the water management districts, to develop a uniform wetland mitigation assessment method by October 1, 2001, and for such method to be adopted by rule no later than January 31, 2002. Once adopted, this method is to be binding on the DEP, the water management districts, local government, and any other governmental agencies, and shall be the sole means to determine mitigation needed to offset adverse impacts and to award and deduct mitigation bank credits. The DEP currently is continuing to work on adoption of this rule methodology; as of January, 2002, is not yet in effect, and legislation is being developed to extend the deadline for adoption of this rule.

Mitigation Banks

In response to a legislative directive, Florida adopted a mitigation banking rule in 1994 (Chapter 62-342 of the Florida Administrative Code). This rule establishes guidelines for the operation of public or private banks. Each bank must obtain an environmental resource/mitigation bank permit, from the DEP or water management district, that provides for the following requirements:

  • The banker must have sufficient legal interest in the property to preserve it by a perpetual conservation easement or donation to the state prior to any release of credits;
  • A detailed mitigation plan to support viable and sustainable functional improvements for the regional watershed;
  • The number and type of potential mitigation credits must be established, as well as the environmental criteria and schedule for the release of those credits for use;
  • The mitigation bank must maintain a ledger to track the number and type of credits released and used;
  • A mitigation service area, based on watersheds and other ecological criteria, must be established;
  • A long-term management plan must be established to maintain the mitigation success in perpetuity;
  • Financial assurance must be established for both the implementation and perpetual management of the bank.

Currently, 27 mitigation banks have been permitted by the state, with a total of 20,974 potential credits and over 61,000 acres. Of these, 18 banks (10,200 credits/32,000 ac.) have had credits released for use, and one has sold out of credits. Thus far, about 2,560 credits have been used as mitigation. Seven of these banks are on public lands and are implemented by either a public agency or are in a public/private partnership.

In Lieu Fee Program

  • In 2000, legislation was passed that stipulated the requirements by which the department, water management district or local government could sponsor a Regional Offsite Mitigation Area (ROMA) project that is paid for by monies accepted as mitigation.
  • A Memorandum of Agreement (MOA) is required between the sponsoring agency, and the DEP or Water Management District, as appropriate, for any ROMA used for five or more projects or for more than 35 acres of impact. The MOA must address most of the same requirements required by mitigation bank permits, including: the mitigation plan and timeline, success criteria, mitigation credit and tracking, service area, acquisition, preservation and long-term management provisions. In addition, the sponsoring agency must provide a full cost accounting of the monies received to ensure that all monies were used in the purchase, preservation, permitting, implementation and management of the mitigation area.
  • The major differences between a ROMA and a mitigation bank is that a ROMA can include an acquisition element and do not have to provide the same financial assurance as is required in a mitigation bank permit.

Ad Hoc Arrangements

  • In 1995, the state established a mitigation program specific to meet the FDOT mitigation needs (Section 373.4137, F.S.), whereby FDOT annually provides an inventory of anticipated wetland impacts to each of the regional water management districts.
  • The state’s five water management districts develop mitigation plans that would serve to offset those impacts, in coordination with other state and federal regulatory agencies. The plan is presented to the water management district’s governing board for conceptual approval, and then submitted to the DEP for state authorization and approval. Once approved, the mitigation work may commence.
  • This program does not relieve FDOT from eliminating or reducing impacts to the extent practicable or obtaining permits for the impacts.
  • FDOT appropriates a specified amount of money (adjusted annually) for the mitigation needed to offset each acre of impact, and this money is disbursed to the water management districts to conduct the mitigation work.

Mitigation Database

  • Mitigation bank credit releases and uses are tracked by means of a required ledger identified in the mitigation banking section above. Credits used are attributed to specific permits or agency actions.
  • At this time, the DEP does not maintain a central database of mitigation projects permitted, or the success thereof.
  • Each water management district has its own tracking system:
    • The SWFWMD maintains a central database tracking the acres of wetlands affected by the issuance of Environmental Resource Permits. In addition to the acreage of wetlands impacted, the database tracks wetland acreage created, wetland acreage improved, wetland acreage preserved, and "other mitigation" acreage.

Staffing (Mitigation Staff)

The DEP has two staff in the Bureau of Beaches and Wetland Resources who are responsible for:

  • Developing mitigation rules and providing guidance on mitigation issues
  • Developing the wetland mitigation assessment method
  • Reviewing and taking agency action on mitigation bank permits for the DEP
  • Statewide coordination on mitigation banking
  • Reviewing and taking agency action on proposed regional offsite mitigation areas ROMA
  • Reviewing and taking agency action on the water management districts’ regional mitigation plans for the FDOT

In addition, the staff in the DEP and the state’s five water management districts who review wetland resource and environmental resource permits also review mitigation proposals as part of reviewing the permit application. Depending on the organization of each office these staff also review the mitigation work for compliance and enforcement. In other offices, additional staff are dedicated to compliance and enforcement of permitted actions (including those that authorize mitigation) and unauthorized actions.